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Requirements & Procedure
There are three main elements that a party must show before he or she may prevail in a contempt action:
1) The initiating party must have proper standing to enforce the court’s order through a contempt action. What this means is that the party initiating the action for contempt must be the former spouse or parent awarded the child support, alimony, division of property, child custody or other award. See O.C.G.A. 19-6-19.
2) The initiating party must show that the offending party has failed to comply with the court’s order. This element is generally proven by the initiating party showing that the offending party did not fulfill his or her obligation, like providing the court with cancelled checks showing that the offending party did not pay his or her full amount of child support. See Kent v. Kent, 265 Ga. 211 (1995).
3) It must be shown that the offending party’s failure to comply was willful. This element is generally proven by showing that the offending party had the means to fulfill his or her obligation but willingly chose not to. For example, if it is shown that the offending party is employed and makes sufficient income to fulfill his or her child support obligation but willfully chooses not to, he or she may be found in contempt of court.
However, before it becomes necessary to prove any of these elements, the party choosing to enforce a court’s order must actually initiate the action for contempt. Generally, an action for contempt must be brought in the same court that entered the initial order. Connell v. Connell, 222 Ga. 765 (1966). However, another Georgia court may obtain jurisdiction (or authority) to enforce the order of another court through a contempt action if a party petitions that court to modify the order. Buckholts v. Buckholts, 251 Ga. 58 (1983).
A party may actually initiate an action for contempt by serving the offending party with the motion for contempt personally, similar to how a complaint for divorce is served on a defendant. Moore v. Moore, 229 Ga. 135 (1972). A defendant or respondent in an action for contempt is entitled to reasonable notice of any hearing on the matter, and he or she is also entitled to an opportunity to be heard at any hearing on the motion for contempt. Brown v. King, 266 Ga. 890 (1996) and Barnes v. Tant, 217 Ga. 67 (1961). In essence, what this means is that the offending party must have an opportunity to defend himself. For more information regarding the several defenses against actions for contempt, see our article titled “Contempt: Defenses.” Once a party has been served with a motion for contempt, he or she has thirty (30) days to answer or to respond to the motion. Upon responding to a motion for contempt, a defendant may either lodge a defense or he or she may purge the contempt by complying with the court’s order and remedying any past due support obligations. Edwards v. Edwards, 224 Ga. 224 (1968). If the offending party complies with the court order, he or she will effectively purge themself of the contempt citation. Id. On the other hand, if the defendant in the contempt action chooses to lodge a defense, he or she must ultimately show that either there was no failure to comply with the order or that any non compliance was not willful. See Arkwright, supra. Contempt actions are often complex matters that involve both parties putting forth evidence to prove their case. Obtaining this evidence often involves undergoing the discovery process and enlisting the aid of experts for analysis and testimony.