Family law cases frequently use a Petition for Rule to Show Cause ("Rule") to coerce the opposing party into performing specific court ordered acts (e.g. the payment of back-due child support or maintenance or the transfer of property awarded to the attorney’s client). In these cases, the attorneys for the parties will want to consider the requirements for rendering imposition of civil contempt of court into an appealable order and ensuring that civil contempt is not transformed into criminal contempt. Generally, an order finding civil contempt arising from a Rule is not a final and appealable order so long as the remedies imposed by the court do not include a sanction such as jail for a fixed period of time, fine, or other type of punishment. However, civil contempt can be transformed into criminal contempt if certain types of punishment are imposed for the contemptuous acts. This article will discuss how to manage your civil contempt cases if you seek appeal or want to avoid appeal and how to make sure you do not accidentally transform a civil contempt order into a criminal contempt order.
Part 1: Appealability of Civil Contempt
In most cases, a finding of indirect civil contempt arising from a Rule will result only in the imposition of a purge amount or action and an award of 750 ILCS 508(b) attorneys fees. At this point in the civil Rule proceeding the order is not final and appealable because, lacking a sanction (the final step), the proceeding is not complete. "[A]n order arising from the contempt proceeding is not appealable until a sanction is imposed by the trial court." In Re the Marriage of Ryan, 188 Ill.App.3d 679, 682, 136 Ill.Dec. 1, 3, 544 N.E.2d. 454, 456 (2d. D., 1989). The award of attorneys fees pursuant to 750 ILCS 5/508(b), ("508(b)") does not constitute a sanction for purposes of rendering an indirect civil contempt order final and appealable. In In re the Marriage of Depew, 246 Ill.App.3d 960, 967, 186 Ill.Dec. 482, 487, 616 N.E.2d 672, 677 (5th D., 1993) the Fifth District explained:
"Although respondent characterizes the attorney fees award as ‘punishment’ and argues accordingly that the June 18, 1991, order found criminal contempt, the February 26, 1992, order clearly states that the $1,000 in attorney fees were awarded to petitioner pursuant to 508 of the Illinois Marriage and Dissolution of Marriage Act and not as a remedy requested by Petitioner in the petition for rule to show cause or as a sanction imposed by the court. We must therefore conclude that the trial court failed to impose any sanction in the instant case, and thus we have no vehicle for determining whether the finding of contempt was civil or criminal. [...] Because no sanction was here imposed by the trial court, we hold the June 18, 1991 order was not final and appealable under Supreme Court Rule 301."
Since 508(b) attorneys fees are not a sanction, the indirect civil contempt order is not appealable absent any other provisions imposing a fine or other punishment. Therefore, if the Petitioner seeks to maintain the non-appealability of the order, the Petitioner should not seek any punishment or sanction against the contemnor once the purge act or amount has been tendered by the contemnor.
On the other hand, the contemnor may wish to appeal a civil contempt order if there is a belief that the court has incorrectly found non-compliance with the court order at issue in the Rule. This kind of situation can arise for an alleged contemnor who may have sincerely tried to comply with complex financial transactions or visitation schedules set forth in court orders or judgments. The contemnor needs a sanction to be imposed for the order entered to be appealed. A Fifth District case sheds light on what is necessary for a civil contempt order to become appealable:
"The order calls for no liability to the respondent beyond that already occasioned by earlier orders of the court entered prior to the finding of contempt, and the order does no more than attempt to implement those orders should they be affirmed on appeal. The effect of the order is not to prejudice, disable, or penalize the respondent; in short, the order does not punish him. The trial court deliberately chose not to incarcerate the respondent because of the damage incarceration might wreak upon his professional reputation. This is not to say that the trial court might not yet incarcerate, fine, or otherwise punish the respondent for contempt. Since punishment may yet be imposed, something more than enforcement of the judgment remains to be done, and the order is, thus, not a final and appealable one."
In Re the Marriage of Buchmiller, 135 Ill.App.3d 182, 185-186, 481 N.E.2d 1077, 1080, 90 Ill.Dec. 277, 280 (5th D., 1985) ("Buchmiller").
As we can see from Buchmiller, a civil contempt order can be transformed into an appealable order when the effect of the order is to "prejudice, disable, or penalize the respondent." (Ibid). Therefore, if you want to appeal, your goal is to seek a civil contempt order which imposes sanctions.
There are many types of sanctions for civil contempt which can render a civil contempt order appealable. For example, the Illinois Supreme Court found that a retroactive termination of support payments constituted a type of "punishment" rendering a contempt order appealable. The Supreme Court explained that: "We believe, however, that sanctions rendering contempt judgments appealable are not limited to fines and imprisonment. It is apparent here that the action of the circuit judge was intended, at least in part, as punishment for what he viewed as the mother’s contemptuous conduct in violating that court’s prior orders. In these circumstances we believe the judgment appealable." In re the Marriage of Siegel, 84 Ill.2d 212, 217, 417 N.E.2d 1312, 1314, 49 Ill.Dec. 298, 300 (1981). It may be argued then that Siegel demonstrates that, as odd as it may seem, if the contemnor wishes to appeal, then the contemnor’s attorney must take the steps to seek the imposition of some type of punishment on his or her own client.
Theoretically, the contemnor’s attorney has several options for rendering the order appealable. It can be argued from the Buchmiller and Seigel cases that the contemnor’s attorney could request that the client be fined a minimal amount in order to render the civil contempt order appealable. The contemnor’s attorney would want to carefully weigh the importance of an appeal regarding the finding of civil contempt before taking the steps to obtain a sanction merely for the purpose of appeal. After careful analysis, the attorney may want to raise the defense of compliance in the Response to the Rule and then request imposition of a fine for the express purpose of rendering the order appealable. Otherwise, the client could be held in civil contempt and ordered to purge without benefit of review.
However, if the Petitioner seeks to maintain a non-appealable civil contempt order, the Petitioner should not seek any type of punishment for the contempt. In re the Marriage of Morse, 240 Ill.App.3d 296, 303, 607 N.E.2d 632, 638, 180 Ill.Dec. 563, 569 (2d. D., 1993) ("Morse"). Instead, the Petitioner’s attorney should devise a way for the contemnor to be purged of the contemptuous conduct complained of in the Rule, and, once purged, go back to the office. Morse, 240 Ill.App.3d at 302-303, 607 N.E.2d at 637, 180 Ill.Dec. at 568. For example, to maintain non-appealability of a civil contempt order in a visitation interference case, it may be prudent to allow the contemnor to purge the contempt for past visitation interference by providing make-up visitation in the future. Then if the contemnor does not comply, the Petitioner may want to consider turning the civil contempt into criminal contempt via the procedure discussed in the following section of this article.
Part II: Transforming the Contempt Order from Civil to Criminal
All attorneys should be aware that indirect civil contempt can be transformed into a criminal contempt order by the making it impossible to purge or by imposing a fixed jail time regardless of the intent of the Judge or the wording of the order. Morse, 240 Ill.App.3d at 303, 607 N.E.2d at 637, 180 Ill.Dec. at 568. It is the sanction imposed which determines whether a contempt order is civil or criminal in nature. Morse, 240 Ill.App.3d at 303, 607 N.E.2d at 637, 180 Ill.Dec. at 568. "Criminal contempt is conduct which is directed against the dignity and authority of the court……Civil contempt is coercive, and not punitive, in nature and usually involves failing to comply with a court order." In re the Marriage of Ruchala, 208 Ill.App.3d 971, 977, 567 N.E.2d 725, 729, 153 Ill.Dec. 767, 771 (2d. D., 1991). If either the Petitioner or the court seek to punish the alleged contemnor with a fixed amount of time in jail whereby the contemnor does not "hold the keys to his release", then the alleged contemnor is entitled to all the protections of due process for criminal contempt. Morse, 240 Ill.App.3d at 302-303, 607 N.E.2d at 637, 180 Ill.Dec. at 568. Thus, as the Morse case demonstrates, the Petitioner who seeks only compliance and no punishment should be cautious to limit the remedies requested and ordered to a finding of indirect civil contempt, an ability to purge, 508(b) attorneys fees, and nothing more.
If the Petitioner seeks criminal contempt, then the nature of the proceeding and pleading is quite different from a civil contempt hearing. In Morse, the Court explained the necessary procedural safeguards for a finding of criminal contempt: (a) the pleading must be captioned to provide notice that criminal contempt is sought; for example its title should set forth that it is a Petition for Adjudication of Criminal Contempt; (b) the pleading should put the Respondent on notice of the specific violations and the nature and scope of the proceeding; that is, that the proceeding is for criminal contempt; (c) the burden of proof remains on the Petitioner and does not shift to the alleged contemnor as in proceedings on civil contempt; (d) the contemnor retains the right not to testify against him or herself and the court must find guilt beyond a reasonable doubt; and (e) the remedies requested and imposed should be criminal in nature. Morse, 240 Ill.App.3d at 304-305, 607 N.E.2d at 638-639, 180 Ill.Dec. at 569-570. Therefore, if an attorney seeks to punish an alleged contemnor (e.g. for the failure to comply with court ordered actions such as providing visitation, the attorney must manage the case accordingly.
Part III: Conclusion
On occasion, a contemnor may refuse to perform the purge act or tender the purge amount or a contemnor may repeatedly refuse to obey court orders. In these instances, the trial court may impose sanctions. Once sanctions are imposed, the contempt order will become final and appealable. If the sanctions are of a criminal type (e.g. fixed jail time), then the nature of the proceeding becomes criminal and procedural safeguards must be in place. Otherwise, as in Morse, the final contempt order can be reversed for the failure to provide procedural safeguards. Morse, 240 Ill.App.3d at 306, 607 N.E.2d at 640, 180 Ill.Dec. at 571. Therefore, attorneys trying Rule cases should keep in mind the various requirements for appealability of civil contempt and avoid transforming the civil contempt into criminal contempt unless the necessary safeguards for criminal contempt orders are in place.
Cynthia L. Alexander is a sole practitioner in Geneva. Her practice is concentrated in Family Law. She received her Undergraduate Degree in 1990 from the University of Chicago and her Law Degree in 1993 from I.I.T./Chicago-Kent.