Unfortunately, some people refuse to follow the terms of their divorce decree or other family law orders and an enforcement action is necessary in order to compel their compliance. In Utah, if you have an ex spouse or other individual who is not complying with child support, alimony, parent time, custody, or any other domestic issue, you may be able to file an Order to Show Cause requiring they appear before a judge to explain themselves. The legal standard for finding a person in contempt in domestic matters was set forth by the Utah Supreme court as follows:
“A finding of contempt and the imposition of a jail sentence must be supported by clear and convincing proof that (1) [the party in question] knew what was required, (2) that he had the ability to comply, and (3) that he willfully and knowingly failed and refused to do so.” It is not the burden of the party requesting the order to show cause to prove these three elements. Rather, once an order to show cause is issued, “the burden is on the defendant to present evidence with respect to these three elements,” and as to “why he [or she] should not be held in contempt for willfully disobeying the previous order of the court.” In addition, “[i]t is only after defendant presents evidence of justification for his failure to perform that the burden shifts back” to the party requesting the order to show cause. Moreover, if payment of some kind was previously ordered by the court, there is a rebuttable “presumption that [the party defending the order to show cause] had the ability to pay . . . as ordered by the court . . .” See Coleman v. Coleman, 664 P.2d 1155, 1156-57 (Utah 1983).
Defending An Order to Show Cause
For those being accused of noncompliance with a court order you may successfully defend such an action if you are able to show that you were unable to comply. However, inability to comply with an order will only be a successful defense if:
““The defense of inability to comply with a court order is only effective where the person charged exercises due diligence towards compliance.” NOTE: In light of Coleman, if inability to comply is going to be part of the defending party’s defense to an order to show cause, the defending party must present evidence that they “exercised due diligence toward compliance,” in order to shift the burden of proof back to the party bringing the order to show cause.
Ogden Utah Family Law Attorney
For help in bringing an order to show cause, or in defending one, call and speak to an Ogden Utah Family Law Attorney at 801.475.0991.
