Hirschler v. Hirschler, Court of Appeals of North Carolina, December 21, 2021 (Civil and Criminal Contempt)

A custody order granted primary custody to mother and visitation to father, including visitation from June 1 through July 10 each year in Florida. When the parties’ daughter was 16, she informed her parents that she did not want to return to mother at the end of father’s summer visitation period. Father encouraged the child to return but would not forcibly put the child in the car and drive her back to Charlotte. Mother traveled to Florida to talk with the child about coming home. After that discussion, mother acquiesced to the child’s request that she continue to stay in Florida with father. Mother later changed her mind and filed a criminal contempt motion against father. The allegations in her motion spoke only to criminal contempt and in her prayer for relief she asked only for criminal contempt. A show cause order was entered, directing father to appear and show cause why he should not be held in criminal contempt. At the start of the contempt hearing, attorneys for both sides confirmed with the judge that this was to be a criminal contempt hearing and that mother was seeking only criminal contempt. Father exercised his right not to testify in the criminal contempt proceeding.

During closing arguments, mother’s attorney asked that the judge order father to return the child to mother. The judge responded that that remedy was not available in criminal contempt. Mother’s attorney responded that they still wished to have father held in criminal contempt and jailed for violation of the custody order. The trial court then announced that father was being held in the “lesser” civil contempt and father was ordered to be jailed until he returned the child. Father appealed the contempt order.

Prior to the date the Court of Appeals issued its decision in the appeal, the child turned 18 years old. As such, the Court of Appeals determined that the appeal was moot and should be dismissed. However, the court chose to review the question of whether a trial court may hold a party in civil contempt at the conclusion of a criminal contempt hearing. Because they decided that the specific issue on appeal was moot, they could not actually make a holding or establish binding precedent on the issue, but their thoughts on the matter were that civil contempt is not a lesser form of contempt than is criminal contempt, that a trial court may not sua sponte hold a party in civil contempt after a criminal contempt hearing, and had they decided the specific issue in this case, they would have decided that father was not given proper notice that he could be subjected to civil contempt and so it was error for the trial court to hold him in civil contempt.

Reviewer’s Comments

At this point, you may be asking why you bothered to read a review of a case with no precedential value. Well, the Court of Appeals made this a published opinion, so reviewing it does fit the “review published opinions” task I have assigned myself and, in my opinion, this analysis is important. Raise your hand if you have been involved in a contempt hearing where the distinction between criminal and civil was “hazy at best,” where the responding party asked for clarification of what was going on and the judge said, “I’ll hear all of the evidence and decide at the end,” or where you get to the end of the hearing and the judge has held your client in contempt, but you still don’t have a firm idea of whether it’s civil or criminal contempt. (I won’t know if you actually raised your hand or not, so don’t feel like you are disappointing me if you have been in one of these situations but did not raise your hand.)

I get it – contempt in a family law case can be a mess. Sometimes it’s difficult to determine whether the particular action or inaction qualifies as civil or criminal contempt. Sometimes the available remedies for the type of contempt at issue do not give you what you really want. And often in cases involving overly entangled civil and criminal contempt elements, you have a judge who is trying to solve a difficult situation using a straight-forward solution. But, y’all, please, to the extent possible, let’s try to keep civil and criminal contempt in their respective lanes and not mix the two into a contempt chimera. I mean, John Hammond thought it was a good idea to use a little bit of frog DNA to fill in the gaps in in the dinosaur DNA he extracted from amber and look how that turned out.

February 3, 2022/by FamilyLaw