I hear about holding an ex who is not complying with the provisions of the Decree of Divorce or other court orders held accountable with an “OSC” What is an “OSC”?
ANSWER: “OSC” means order to show cause.
When a party is not complying with the provisions of a court order, the other party can move to have the non-compliant party sanctioned through a “motion for order to show cause” as to why he/she should not be found to be in contempt and sanctioned accordingly.
Briefly, if your ex violates a provision of the decree or other court order, you can file a motion asking the court to order your ex to come to court and explain (if your ex can) why your ex should not be punished by the court for non-compliance (or “encouraged to comply”) with the court’s orders. If your ex doesn’t have a valid excuse, the court will sanction your ex and/or compensate you for your trouble.
There are some specific contempt of course provisions that apply only to divorce and other domestic relations cases:
(1) When a court of competent jurisdiction, or the Office of Recovery Services pursuant to an action under Title 63G, Chapter 4, Administrative Procedures Act, makes an order requiring a parent to furnish support or necessary food, clothing, shelter, medical care, or other remedial care for his child, and the parent fails to do so, proof of noncompliance shall be prima facie evidence of contempt of court.
(2) Proof of noncompliance may be demonstrated by showing that:
(a) the order was made, and filed with the district court; and
(b) the parent knew of the order because:
(i) the order was mailed to the parent at his last-known address as shown on the court records;
(ii) the parent was present in court at the time the order was pronounced;
(iii) the parent entered into a written stipulation and the parent or counsel for the parent was sent a copy of the order;
(iv) counsel was present in court and entered into a stipulation which was accepted and the order based upon the stipulation was then sent to counsel for the parent; or
(v) the parent was properly served and failed to answer.
(3) Upon establishment of a prima facie case of contempt under Subsection (2), the obligor under the child support order has the burden of proving inability to comply with the child support order.
(4) A court may, in addition to other available sanctions, withhold, suspend, or restrict the use of driver’s licenses, professional and occupational licenses, and recreational licenses and impose conditions for reinstatement upon a finding that:
(a) an obligor has:
(i) made no payment for 60 days on a current obligation of support as set forth in an administrative or court order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the support obligation in accordance with the order; or
(ii) made no payment for 60 days on an arrearage obligation of support as set forth in a payment schedule, written agreement with the Office of Recovery Services, or an administrative or judicial order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the arrearage obligation in accordance with the payment schedule, agreement, or order; and
(iii) not obtained a judicial order staying enforcement of the support or arrearage obligation for which the obligor would be otherwise delinquent;
(b) a custodial parent has:
(i) violated a parent-time order by denying contact for 60 days between a noncustodial parent and a child and, thereafter, has failed to make a good faith effort under the circumstances to comply with a parent-time order; and
(ii) not obtained a judicial order staying enforcement of the parent-time order; or
(c) an obligor or obligee, after receiving appropriate notice, has failed to comply with a subpoena or order relating to a paternity or child support proceeding.
(1) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:
(a) perform a minimum of 10 hours of compensatory service; and
(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.
(2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.
(3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.
(4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.
(5) If a court finds by a preponderance of the evidence that an obligor, as defined in Section 78B-12-102, has refused to pay child support as ordered by a court in accordance with Title 78B, Chapter 12, Utah Child Support Act, the court shall order the obligor to:
(a) perform a minimum of 10 hours of compensatory service; and
(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.
(6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.
(7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.
(8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.
(9) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.
Now let’s learn about what contempt is and how it is punished (the courts don’t like to use the word “punish,” instead they like the word “sanction,” which is, of course, a synonym for “punish,” but the courts prefer to think of sanctions only as “ways to encourage compliance,” not punishment for non-compliance, but I digress):
The following acts or omissions in respect to a court or its proceedings are contempts of the authority of the court:
(1) disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the course of a trial or other judicial proceeding;
(2) breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding;
(3) misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, or other person appointed or elected to perform a judicial or ministerial service;
(4) deceit, or abuse of the process or proceedings of the court, by a party to an action or special proceeding;
(5) disobedience of any lawful judgment, order or process of the court;
(6) acting as an officer, attorney or counselor, of a court without authority;
(7) rescuing any person or property that is in the custody of an officer by virtue of an order or process of the court;
(8) unlawfully detaining a witness or party to an action while going to, remaining at, or returning from, the court where the action is on the calendar for trial;
(9) any other unlawful interference with the process or proceedings of a court;
(10) disobedience of a subpoena duly served, or refusing to be sworn or to answer as a witness;
(11) when summoned as a juror in a court, neglecting to attend or serve, or improperly conversing with a party to an action to be tried at the court, or with any other person, concerning the merits of an action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the communication to the court; and
(12) disobedience by an inferior tribunal, magistrate or officer of the lawful judgment, order or process of a superior court, or proceeding in an action or special proceeding contrary to law, after the action or special proceeding is removed from the jurisdiction of the inferior tribunal, magistrate or officer. Disobedience of the lawful orders or process of a judicial officer is also a contempt of the authority of the officer.
(1) When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily. An order shall be made, reciting the facts occurring in the immediate view and presence of the court. The order shall state that the person proceeded against is guilty of a contempt and shall be punished as prescribed in Section 78B-6-310.
(2) When the contempt is not committed in the immediate view and presence of the court or judge, an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.
If the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer. If there is no previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted. A warrant of commitment may not be issued without a previous attachment to answer, or a notice or order to show cause.
The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.
(1) If an actual loss or injury to a party in an action or special proceeding is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses. The court may order that any bail posted by the person proceeded against be used to satisfy all or part of the money ordered to be paid to the aggrieved party. The order and the acceptance of money under it is a bar to an action by the aggrieved party for the loss and injury.
(2) A judgment creditor may request that the court pay bail posted by a judgment debtor to the judgment creditor if:
(a) the judgment debtor owes the judgment creditor funds pursuant to a court-ordered judgment;
(b) the judgment creditor provides the court with a copy of the valid judgment; and
(c) bail was posted in cash, or by credit or debit card.
(3) Upon receipt of a request by a judgment creditor, the court shall require the judgment debtor to provide either proof of payment or good cause why the court should not order the forfeiture of bail to then be paid to the judgment creditor. The court shall find that good cause exists if the judgment debtor provides admissible evidence that the bail was paid by a third party.
(4) The court may, in its discretion, order all or a portion of the funds deposited with the court as bail to be paid to the judgment creditor towards the amount of the judgment. If the amount paid to the court exceeds the amount of the judgment, the court shall refund the excess to the judgment debtor.
(5) Within seven days of the receipt of funds, the judgment creditor shall provide to the judgment debtor an accounting of amounts received and the balance still due, if any.
When the contempt consists of the omission to perform an act enjoined by law, which is yet in the power of the person to perform, the person may be imprisoned until the act is performed, or until released by the court. The act shall be specified in the warrant of commitment.
Utah Family Law, LC | divorceutah.com | 801-466-9277