Cassman: Proper notice in indirect civil contempt proceedings

January 11, 2017
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By Ryan H. Cassman

Indirect civil contempt is the most common filing used to enforce family law orders. One of the typical defenses to an allegation of contempt is that the contempt allegations have not been properly pled. Both the Indiana Supreme Court and the Indiana Court of Appeals have addressed the issue of notice in recent cases. This article briefly reviews those cases and attempts to discern the current state of contempt law.

Contempt of court “involves disobedience of a court which undermines the court’s authority, justice, and dignity.” Stanke v. Swickard, 43 N.E.3d 245, 247 (Ind. Ct. App. 2015). A person who willfully disobeys a court order is guilty of indirect contempt. An indirect contempt proceeding requires an array of due process protections, including notice and the opportunity to be heard. These protections are provided by compliance with Ind. Code § 34–47–3 et seq. The code provides that the person charged with contempt is entitled to be served with a “rule of the court against which the contempt was alleged to have been committed” and the rule to show cause must “clearly and distinctly” state the facts that are alleged to constitute the contempt. Additionally, the rule to show cause must set forth the time and place at which the defendant is required to show cause as to why the defendant should not be attached and punished for such contempt. The statute provides that the court shall, on proper showing, extend the time to give the defendant a reasonable and just opportunity to be purged of the contempt. Id.

In Stanke, a trial court found Father in contempt for failing to abide by the terms of the dissolution decree. However, the Court of Appeals reversed the finding of contempt because the petition for rule to show cause did not constitute sufficient notice where it failed to “clearly and distinctly set forth the facts underlying [Mother’s] contempt citations,” and it failed to include those allegations as ones on which Father was being ordered to show cause. Id. at 249. Moreover, in Stanke, it was observed that a jail sentence for civil contempt must be coercive rather than punitive in nature, and to avoid being purely punitive, a contempt order must offer an opportunity to purge the contempt. Id. Since the trial court order required Father to serve jail time without an opportunity to purge the contempt, the order was “purely punitive” and therefore impermissible. Id.

In Reynolds, the trial court found Father in contempt for failing to provide Mother with tax documentation pursuant to the parties’ dissolution decree. Reynolds v. Reynolds, N.E.3d, 2016 WL 7129536, (Ind. Dec. 6, 2016). As sanctions for contempt, the trial court ordered Father to produce the requested documents and pay Mother’s attorney fees. The trial court was reversed because: 1) the trial court did not strictly comply with the rule to show cause statute; and 2) the trial court failed to give Father a way to purge himself of contempt. 

On transfer, the Indiana Supreme Court reinstated the trial court decision finding notice was sufficient where Mother’s pleadings contained detailed factual allegations that Father had failed to comply with provisions of the dissolution decree. The Indiana Supreme Court also noted Mother’s pleadings incorporated, by reference, her request for production of documents to show which documents had been requested. The court reasoned that while under a plain reading of the rule to show cause statutes, the contemnor is entitled to be served with “a rule of the court against which the contempt was alleged to have been committed,” it does not necessarily follow that the trial court itself bear the burden of articulating the specific facts alleging contempt in its order when a moving party has already done so in a properly served contempt motion. The court, citing Stanke, noted that “due process is only denied when neither a court order nor a motion for rule to show cause contain sufficient factual detail about the allegations of contempt.” Id. at *4 (emphasis original). Because Mother’s pleadings were sufficient to provide Father with proper notice, transfer was granted and the trial court’s finding of contempt was reinstated. Additionally, the Supreme Court clarified when “the opportunity to purge” applies. It concluded that because the statute contains the modifier “on proper showing” before the clause allowing the defendant an opportunity to be purged of contempt, a defendant must make a showing before being granted the right to purge.

In his dissenting opinion, Justice Slaughter reasoned, in part, as follows:

“I am unable to join the Court’s opinion because I believe the legislature is entitled to require that alleged contemnors receive greater procedural protections than the minimum constitutional requirements afforded by the Fourteenth Amendment. There can be no mistaking the legislative mandate here. The statute’s opening words command that the procedural requirements recited in this chapter apply “[i]n all cases” of indirect contempt. The statute’s plain meaning required the trial court to issue a rule to show cause detailing the factual basis for Father’s alleged contempt. Because the court failed to do so, its contempt order should not stand.”

Following Stanke and Reynolds, the “law of the land” remains that due process is only met where allegations of contempt are “clearly and distinctly” noticed. While Stanke held that due process is not met without a rule to show cause from the court which “clearly and distinctly” sets forth the specific allegations, Reynolds clarified that the trial court itself does not bear the burden of articulating the specific facts alleging contempt in its order where a moving party has already done so in pleadings. Additionally, Reynolds suggests that it is possible to have sufficient notice even where the pleadings incorporated, by reference, information outside of the pleadings themselves. Finally, Reynolds holds that a defendant is only afforded the opportunity to purge the alleged contempt if the defendant makes “a proper showing to the Court” as to why he should be granted the opportunity to purge.•


Ryan H. Cassman is a family law attorney and mediator at Coots Henke & Wheeler P.C. He can be reached at rcassman@chwlaw.com or 317-844-4693. The opinions expressed are those of the author.