Thought You Understood Contempt? Think Again

The murky law of contempt — particularly the distinction between civil and criminal contempt — got even more confusing last month with the Court of Appeals’ decision in Tyll v. Berry. The court said that civil contempt may include a fine, not just imprisonment, and can require the fine to be paid to a private party, not to the state. All this is new and different from what we have been teaching about the law of contempt.

Civil vs. criminal contempt

Let’s start with a refresher on the difference between criminal and civil contempt. Criminal contempt is a sanction for one of the specified acts in G.S. 5A-11, the most common being refusal to obey a court order, disrespect to the court, and failing to follow court schedules. Criminal contempt is used when the contemptuous act has already occurred, is completed, and the court wants to punish the offender. The punishment generally is limited to a $500 fine and/or jail for up to 30 days.

Civil contempt, on the other hand, is intended not to punish the offender but to force the person to comply with a court order. The only act for which civil contempt may be applied is the ongoing violation of a court order and the only sanction, we thought, was for the person to be jailed until they complied. Every civil contempt order has to include a “purge” provision, that is, a clear statement as to what the person has to do to get out of jail. If the contempt was for failure to pay child support, for example, the purge would be to catch up on payments. If the contempt was for refusal to sign over a deed, the purge would be to sign the document.

Joey Berry’s civil contempt

Joey Berry was in contempt for violating a Chapter 50C no-contact order. The district court judge ordered that Berry be locked up for contempt until he purged the contempt by paying $2,500 to the Tylls. The order also said he would be fined an additional $2,500 for each future violation of the no-contact order, apparently for as long as the no-contact order remains in effect. Although the trial court did not specify whether it was using civil or criminal contempt, the Court of Appeals treated it as civil and concluded that the $2,500 fine was lawful.

Lawyers and trial judges often fail to articulate whether they are talking about criminal or civil contempt. One might have thought that Joey Berry was being found in criminal contempt. Civil contempt is supposed to be used to make someone comply with a court order, to do something they were already ordered to do but haven’t done yet; thus it does not really work when the order being enforced forbids the person from doing something. If someone is ordered to not contact someone else, how do you lock them up until they comply by not contacting that other person? If what the court really wants to do is punish the person for disobeying the order sometime in the past, that’s criminal contempt, not civil.

Nevertheless, the Court of Appeals concluded that the trial court was holding Berry in civil contempt. It did so because the Tylls had initiated the proceeding by filing a motion under the procedures of G.S. 5A-23, the civil contempt statutes; the judge’s findings recited the statutory conditions for civil contempt (order still enforceable, willful disobedience, etc.); the judge called the $2,500 payment a “purge”; and the transcript indicated the judge was struggling to find a way to get Berry to comply with the no-contact order.

“As for contempt”

The no-contact statute, G.S. 50C-10, says that a violation is punishable as contempt but does not say whether it’s criminal or civil. In deciding that it is civil, the Court of Appeals cited G.S. 5A-25 which says that “whenever the laws of North Carolina call for proceedings as for contempt, the proceedings are those for civil contempt. . . .” (emphasis added). It appears that the court took that statute to mean that whenever another statute fails to specify whether the contempt is civil or criminal then it is civil. The statute actually is narrower than that.

The key is the term “as for contempt.” Until contempt law was recodified as Chapter 5A in 1977, “as for contempt” was the term of art for civil contempt. In other words, before Chapter 5A was enacted, “contempt” or “for contempt” meant criminal contempt and “as for contempt” meant civil contempt. All that G.S. 5A-25 says is that if there is an old statute that still uses the term “as for contempt” it means civil contempt. But G.S. 50C-10 does not use the term “as for contempt,” it simply says that violation “is punishable as contempt of court,” so it is difficult to see how G.S. 5A-25 helps in construing its meaning.

Given the appellate court’s reading of G.S. 50C-10 and G.S. 5A-25, specifically its determination that “contempt” in G.S. 50C-10 means civil contempt, it appears that criminal contempt is no longer available to punish the violation of a no-contact order.

A fine for civil contempt

More surprisingly, once the Court of Appeals decided that Berry was being held in civil contempt it approved the imposition of the $2,500 fine as a sanction. The only sanction stated in the civil contempt statute, G.S. 5A-21(b), is that the person be “imprisoned as long as the contempt continues.” In approving the use of a fine against Berry, the Court of Appeals quoted several earlier appellate opinions — Jolly v. Wright, 300 N.C. 83 (1980); Oakley v. Oakley, 165 N.C. App. 859 (2004); Reece v. Reece, 58 N.C. App. 404 (1982); Bishop v. Bishop, 90 N.C. App. 499 (1988) — all of which refer to fines for civil contempt. In none of those cases, however, did the trial court actually impose a fine.

It looks, therefore, like Tyll v. Berry is the first instance of a North Carolina appellate court approving the actual imposition of a fine for civil contempt. We have been teaching judges that fines are not allowed, that a fine is punishment and is inconsistent with the purpose of civil contempt. We’ll now tell them they have another option.

The fine as a purge condition

The trial judge made payment of the $2,500 fine a purge condition. This does not fit with the idea that a purge condition has to be tied to the original order being enforced by contempt. That is, because the purpose of civil contempt is to force compliance with a court order, not punishment, a proper purge was thought to be something essential to the original order. For example, if a judge was jailing someone for civil contempt for not complying with an order to sign over a deed, the only appropriate purge condition would be to sign the deed, that’s the only act that would achieve compliance with the original order. Based on Tyll v. Berry it appears that a purge condition may be something independent of complying with the original order.

In allowing a purge condition that adds to the original court order the payment of a fine, the Court of Appeals notes that earlier decisions have allowed trial judges to add payments of attorney fees as a part of civil contempt. It is indeed correct that attorney fees have been approved as part of civil contempt in some categories of domestic cases, as an exception to the general rule that attorney fees are not allowed in contempt. Fees have been allowed in civil contempt proceedings for failure to pay child support or alimony or noncompliance with an equitable distribution order. The basis for allowing attorney fees in those kinds of cases generally has been that such fees can be awarded for the underlying action resulting in the order being enforced by contempt and, therefore, are appropriate for enforcement of the order as well. The fine allowed by Tyll v. Berry, though, does not appear to be linked to the original action in any way, apparently opening the door for a new category of sanctions.

Another unusual aspect of the $2,500 fine as a purge condition is that it continues indefinitely into the future, as long as the no-contact order is renewed. The “purge” might arise two years from now if the no-contact order has been renewed and Berry makes a prohibited contact. That sounds different than what we’ve thought a purge was.

A fine that doesn’t go to the schools

To distinguish cases holding that civil contempt may not include an award of costs or damages, the Court of Appeals made clear that the $2,500 represented a fine rather than compensation to the Tylls for any loss or injury they suffered or their costs. It is not obvious how that distinction fits under Article IX, § 7 of the State Constitution. That is the section requiring that the proceeds of all fines and forfeitures go to the public schools, and it’s been the subject of considerable litigation over the last several decades. In those cases the courts seem to have recognized a dichotomy between restitution and penalty. If the money is to be paid to a party and is intended to compensate them for a loss, it is restitution; otherwise it is a penalty and belongs to the schools.

What, though, about a “fine” that is specifically held not to be restitution, to not be for the purpose of compensating a party, but is paid to a private individual rather than to the state? This looks like a new animal and it will not be surprising to see school boards contend that the constitution requires the money to be paid to them.

Conclusion

All in all, then, Tyll v. Berry, is an intriguing and apparently groundbreaking decision. The case itself was remanded to district court because the judge failed to include a finding that Berry had the present ability to pay the $2,500. Regardless of what finally happens to Mr. Berry, though, the decision seems to create a new range of monetary penalties for civil contempt. Even though it appears criminal contempt will no longer be available for violations of no-contact orders, the new, expanded civil contempt option should be attractive to trial judges. If the judge had found Berry in criminal contempt for his past violation of the no-contact order, the maximum fine would have been $500 and the maximum imprisonment would have been 30 days. Instead, by using civil contempt, the judge was able to fine him $2,500 (and apparently more, if the judge had wanted) and have him imprisoned indefinitely until he paid — even though the sanction really is for a past violation of the no-contact order rather than ongoing disobedience.

(A summary of the law of contempt, not yet revised to account for Tyll v. Berry, can be found on the School of Government’s Judicial Authority and Administration website.)