Failure to Comply with Court Orders regarding Divorce Settlement Results in Contempt
When parties before the Family Division repeatedly fail to follow orders issued by the judge, such as orders requiring sale of a marital asset or orders regarding a child visitation schedule, there are several ways that the wronged spouse can attempt to force compliance. Among the most extreme of these methods is by filing a motion to hold the disobedient party in contempt, which, if granted by the court, can involve a jail term of up to six months long. A recent case coming before the Kentucky Court of Appeals offered an example of the sorts of behavior that will land a divorcing spouse in contempt, and the number of opportunities that party will have to get back in the court’s good graces before being sent to jail.
The case, titled Brock v. Brock, centered on a couple who had filed for divorce in August of 2013. According to the couple’s mediation agreement, the husband was awarded the couple’s home, but was ordered to refinance the debt on the home and remove his former wife’s name from the mortgages (both the first and second). He was also responsible for the balance on a store credit card.
Approximately one year after the couple’s divorce filing, the wife filed a motion for contempt due to the husband’s failure to refinance either the credit card debt or the first and second mortgages. In fact, the wife contended, the husband had withdrawn additional funds from the second mortgage – funds he used to pay down a separate credit card debt that was only in his name. He had also allegedly made late payments on the mortgages and joint credit card debt, hurting the wife’s ability to obtain credit in her own name.
In opposition to the contempt motion, the husband argued that he had tried to refinance the mortgage but had failed due to his child support obligation. However, the court pointed out that no child support obligation yet existed when he allegedly applied for refinancing. The court found the husband’s arguments unconvincing and held him in contempt, imposing a 90-day jail sentence which would be suspended for 30 days to allow the husband an opportunity to cure the contempt.
While courts have broad discretion to hold litigants in contempt, this is generally a judge’s last resort, imposed only where nothing else appears as though it will convince the party to act. Courts will often hold a party in contempt while offering them one or more opportunities to “cure,” meaning to comply with the court’s orders before facing jail. Here, the judge held that the husband could avoid jail by paying back the additional funds he’d withdrawn from the second mortgage and paying his wife’s attorneys’ fees for bringing the contempt motion within a month of the court’s decision.
Four months later, the wife renewed her motion for contempt, asserting that the husband had failed to refinance the mortgages or remove his wife’s name from the credit card. The court ruled that the husband had failed to make a good faith attempt to comply with the terms of the divorce decree or the obvious intent of the parties. The court ruled that, since the previously-issued orders had not been sufficiently explicit, the husband now had 90 days to refinance the mortgage. However, since the orders regarding the credit card had been entirely clear, he had only 30 days to remove his ex-wife’s name from the shared credit card before he would spend a month in jail.
The husband appealed this decision. He argued that the divorce agreement had not stated explicitly that he would need to pay the credit card balance in full. Additionally, he pointed out that he had made one attempt to refinance the debt on the home, but was rejected, and that he had no obligation to try to do the “impossible,” which refinancing the home appeared to be. The Court of Appeals upheld the trial court’s decision on the basis of the “implied covenant of good faith and fair dealing.” Essentially, the court’s opinion pointed out that parties to a judgment have a duty to “do everything necessary” to carry out their responsibilities under a contract, and the court has the right to determine whether or not a party acted reasonably in doing so or attempting to do so. Here, the court found that the husband’s unwillingness to take his wife’s name off the credit card, or even to make timely payments, simply wasn’t reasonable or in good faith, nor was it reasonable to make only one attempt to refinance the mortgages. The Court of Appeals affirmed the decision holding the husband in contempt.
If you are in need of skilled, knowledgeable, and compassionate legal assistance with a family law matter in Kentucky, contact the Louisville family law attorneys at Gwin, Steinmetz & Baird for a consultation, at 502-618-5700.