Enforcing an Order…
What To Do When… You Have an Order That Needs to be Enforced.
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Episode 22: What To Do When… You Have an Order That Needs to be Enforced with Scott Cardani and Jackie Critzer.
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:28
Hi, and welcome back to a podcast What To Do When… A Dummies Guide to the Legal Verse. I’m Jackie Critzer. This is Scott Cardani. And we’re at Critzer Cardani, here in Richmond, Virginia.
Scott Cardani 0:40
What’s on the docket for today, Jackie?
Jackie Critzer 0:44
Post decree or post order enforcement.
Scott Cardani 0:47
So What To Do When you have an order, and you need to enforce it? Okay. Well, what are we talking about here?
Jackie Critzer 0:58
Well, let me say, right, so we talk a lot about getting an order for custody, visitation, child support spousal support, maybe an equitable distribution award where one spouse owes the other X number of dollars from the retirement from the IRA, or from the investment account. Whatever the case, may be. Maybe a spouse is, has been ordered to sell a piece of real estate. Okay, and it’s in the order. Which is fine. But what do you do when they don’t when the other person doesn’t follow the order, or what might happen to you if you don’t follow the order?
Scott Cardani 1:26
First thing, first thing is know your order. So many people think they know their order, and don’t coming to an attorney in reading that order, making sure you’re understanding what that order says to do. And like Jackie says, maybe it’s saying can sell a piece of property versus shelve it, there’s just so many different language pieces that can be in there, we usually see this in custody and visitation cases, were fathers supposed to return the child at 5pm. And or a support case where the father or mother was supposed to pay $300 a month and have an arrearage of $15,000. And haven’t done that hasn’t paid any of that and how to get that in court.
Jackie Critzer 2:03
But you need to know what the order is requiring of yourself, of course, and also the other parent.
Scott Cardani 2:10
I had a case one time when I forget the parents had early on, and the order changed it the time. Okay, so the order said five o’clock on Sunday, for instance, to five o’clock, five o’clock Friday to five o’clock on Sunday was dad’s visitation. Well, they’d never done that they’d had seven o’clock and seven o’clock, and then all sudden dad starts being there at five or whatever, whatever the case may be, they went back to the original order. And the other party comes in and I’m mad, he’s Yeah, I’m gonna show cause. Like, unfortunately, he’s dealing with the order says, so you got to read the order, make sure you understand the order, even after you get an order, it’s good for you to sit down with your attorney. Say, Hey, let’s make sure I understand this order. Make sure I understand the terms of it.
Jackie Critzer 2:48
Well, and where the order came from. And I don’t mean, like, that sounds kind of funny. But which court entered the order in which court continues to have jurisdiction to enforce the order. We see this sometimes in the juvenile court, typically, it’s just gonna go back to the same juvenile court judge. So where we see this get a little confusing is sometimes in a divorce, you’ll address custody visitation and support in the divorce, but then the divorce judge and the order will send those juvenile court matters back to the juvenile court to enforce or to modify any of the terms regarding support custody and visitation. So not only do you need to know what your order requires, but you need to know where where you’re supposed to go back to to enforce whatever thing is not being done, right, per the order.
Scott Cardani 3:36
It’s very important, because you wouldn’t believe how many times people get this wrong and go to the wrong courthouse. And they have the case, and they’ve spent all this money preparing and they go into court and judge like, I don’t have jurisdiction over this matter.
Jackie Critzer 3:48
And that’s it and it’s gone, the court cannot take it can’t sua sponte, which means from its own bench decide to take jurisdiction, it either has it or it doesn’t, it can’t You can’t create jurisdiction. But Scott, you mentioned a key phrase few minutes ago, you said show cause what does a show cause?
Scott Cardani 4:05
So it’s so weird.. I remember first practice, and I never, I don’t know why it just didn’t click with me even thought I went to law school. It really means to show cause why you’re not doing what you’re supposed to do. So the order is for me, I file a show cause against Jackie, for her to show a reason show a cause why she’s not following the order. And quite frankly, most of the time it comes down to willful disobedience of an order.
Jackie Critzer 4:29
Well, the way you’re filing something that says that I’ve already that I am basically guilty of not doing what the order says and now I have to show up in court with this. What sounds like an assumption that I’ve I’ve done what you’ve accused me of by not following the order?
Scott Cardani 4:45
It does but when I go to court, when you go to court, that other side who’s fired it’s gonna have to show and demonstrate in that court and say, Okay, here’s what they haven’t done. Judge we he was supposed to base a board at $300 a month for the last six months in her bank account. Here’s our receipts. We’ve gotten $250.
Jackie Critzer 5:01
Well, and importantly, though, most of the time, you have to swear through an affidavit, at least in the circuit court, you have to swear, it has to be a verified petition with me, which means you’re signing it under oath that these allegations are true. And then you get the that I Scott swore. And then I would get this summons. And I’d have to appear in court. And I would have to explain myself, Well, Judge, I didn’t pay Scott $500 A month because I simply didn’t have the money to pay. And then the next question is going to be well, how much did you pay him? If I paid zero, it’s going to be a problem. If I say, Well, Judge, I paid him $403, one month, and $322 one month, and here’s why here are my bank statements I gave everything I had. Those are the things that and then we’re talking more about defense and the procedure. But if you need an order enforced, you’ve got to take these steps, figure out what’s being ordered of you or of the other person, figure out what court you need to be in, and then you’ve got the case, then you’ve got to put on the case, well, what if you win? What so then what?
Scott Cardani 6:06
Well, I don’t want the judge will enter an order, one of the things we didn’t talk about is how under another order. But, there’s two kinds of show causes. There’s a civil video cause which requires a civil penalty. There’s kind of a quasi show cause. And then there’s the criminal total criminal penalty. But most judges more appreciate the civil penalty, quite frankly, than the criminal show.
Jackie Critzer 6:26
Who gets to pick which one is filed?
Scott Cardani 6:28
We do, we Your attorney will help you pick which is best, usually criminal show cause are much more effective in case of money. Because the idea is if they’re not paying, the judge will say, Well, you’re gonna sit in jail until you pay. And so that may be an hour that may be 15 minutes, that may be six day, six days, but you owe this person $700, you haven’t paid him. And I’m gonna hold you in contempt of court in court, in the jail until you pay the purge, it’s called. And if you pay that purge amount you get out, it’s like a Get Out of Jail Free card. But it’s not free.
Jackie Critzer 6:59
It’s definitely not free. And we’ll see in the circuit court to maybe the person was ordered to pay, you know, $2,000 a month, maybe it was temporary support. And they didn’t pay anything. And here we are five months later, by my math, that’s $10,000. And you follow the show calls and the person shows up and the judge says, Okay, what’s the deal? Why haven’t you paid anything. And the defense is either going to be I did judge and she’s lying to you, or he’s lying to you, or it’s going to be I didn’t have it. And here’s why. And an attorney like myself, or Scott, we’re going to have already subpoenaed and asked for all the bank statements and the credit card statements, and we’re going to look for where the money is being spent. We’re going to look and see how many times you’ve been out to eat and been to Starbucks. And because if you’ve paid nothing, there’s almost always a way to show that you could have paid something.
Scott Cardani 7:50
I remember a judge used to I used to do 1000s of these cases a year when I was not 1000 a year, but 1000s, or the time I worked in juvenile court, down in Richmond. And I remember one of the judges saw I say, I can pay that amount with a paper route, a couple of days a week, what are you doing? And so the implication was, there’s absolutely zero reason to pay zero, usually, right. And so like Jackie, saying, you know, if we’re defending you, the best thing you can do is pay as much as you can. And then we can make a good argument for that. So as much as you can do, but if you’re saying that as much as you can, and you’re making a $600 BMW payment? I don’t know. And again, it’s willfulness, where you willfully disobeying an order? What was your issue there? Why were you not paying? Why were you not paying the money you owed? Why were you not showing up for visitation will shift the visitation real quick, you know, these things matter to you. So it’s important that you share why it matters. For instance, say the order says that the child has to be returned at 715 every day in the morning, or when they return at 715. The reason for that may be that mom is going to go back feed, I’m just trying to figure it out. But anyways, the reason why your mom maybe had to be at work at eight and has to drop the kid off at daycare and do all these things. So that’s important. If he’s 10 minutes late in that situation that can put mom late for work, or any other thing. So it becomes important. A lot of people say, Well, I’ve only been 15 minutes late, I was only five minutes late. Well, depending on the circumstances that may or may not matter, right? Same thing with money. If it’s an order for $315, and he’s paying $310, that may not matter. But if that 315 is the only 315 mom or dad is getting right that $5 matters. And so we don’t look at it as automatically doesn’t matter. It’s only five bucks. We look at it in your circumstances, try to figure out how, how it affects the other person if we’re defending you or how it’s important to you if we’re proud to show cause on your behalf.
Jackie Critzer 9:49
Well, we both have done both sides, right? We’ve had the clients that come to us and say, well, this person was supposed to list the real property for sale by the date certain and it’s not done So now we need to file an enforcement action. And we’ve been on the other side where maybe we represent the spouse or the other party who wasn’t following the order. But aside from money, and maybe jailing Scot are there other remedies like in my example, with real estate, let’s say the spouse was required to, to hire an agent and list the property by June one. It’s June five, June 15, maybe September one, right? Still not listed for sale? And you go in for the show? Cause what’s the remedy for the court to say, okay, show cause? And the person says, Well, I haven’t listed it, here’s my 10 reasons why doesn’t matter, I still haven’t. What is the remedy? At that point?
Scott Cardani 10:36
The judge may order you out of the sell position and put it in the other part is to sell it immediately. He may order a special commission or to have pet property sale sold immediately. There’s lots of the array, the realities, and the remedies can be creative as the judge wants to be, and whatever basically needs to happen to get that condition met, right. So I don’t even want to say these are the list because there’s just on your individual circumstances can make a huge difference on what the best remedy is. Sure. And, again, I just think people don’t realize what the courts looking at is, you know, the guy who has $2 million sitting in a bank, and he refuses to pay the person $300. That’s kind of where you get into, like, the jail will tell territory, why is he not doing it, other than just thumbing his nose at the court and the courts gonna be like, he didn’t think my order meant anything? Did you not think that I have power to do anything to you? That’s when the quarter trial court kind of likes these criminal show causes which make jail part of the enforcement.
Jackie Critzer 11:39
Well, in our judges, I’m sure most jurisdiction jurisdictions have judges that are similar, they, they put it in an order, because that’s what they want done. And when someone comes in, in a willfully contumacious, you’re gonna see that and probably a show caused by either by your attorney or the other side, willful contumacious. It means you’re on purpose, not following this order, you don’t have a real good excuse, is what that really means. And when a judge agrees with that is when you see the ire of the judge, I had a case with with a judge here in the Richmond area, who explained to my client and the other party, we were there trying to enforce an order, and the other party was trying to defend their non-compliance. And he explained to the parties that he had a guy in front of him who had plenty of money to pay, and just had not paid exactly what Scott’s describing. And he said, You would be surprised how quickly that money became available once I put him in jail. And he went on to tell us that it was not even two hours before that money was in the other party’s hands. So it is a helpful tool. It does happen. You can be jailed for failure to obey a court order. It’s ike, it’s kind of like contempt that you see on TV shows except it’s not somebody you know, screaming in court, but it’s still a disobedient act and failure to follow a court order. So you can be jailed, orders matter to the court. So you can be ordered to pay the other attorneys fees as well.
Scott Cardani 13:05
Oh, that that’s a big one. Can you imagine going to court because you want to thumb your nose at the court and she hires a lawyer, she the lawyer charges are $10,000 to enforce that case. And then what was $200 is now to $1,200, or $12,000, you’re having to pay makes a difference. You got to think through those things. It’s never a good idea just to thumbing your nose at the court for no reason. I realize sometimes there’s valid reasons in people’s minds. But it’s really important to know the facts. And when we talk about these things, these podcasts, we’re really talking generalizations on purpose, because there’s even a quasi enforcement kind of thing of quasi civil quasi criminal enforcement shows, but your case, your specific case, and your options are going to be best decided here. When you come talk to us and sit down when you lay out everything that’s going on, we look at your order. So that’s what you need to do we highly suggest that
Jackie Critzer 13:57
Big 3 takeaways from the what to do when you need to enforce an order.
Scott Cardani 14:01
Number 1, know your order.
Jackie Critzer 14:03
Number 2, know which court has jurisdiction over your matter.
Scott Cardani 14:08
And 3 know your options. What are your options, civil criminal enforcement, maybe it’s a negotiation even there’s lots of sometimes a simple phone call can get this thing settled.
Jackie Critzer 14:17
And included in your options are the remedies. What are you needing to have done as a result of maybe you’re successful, but the options include What remedies are available to you.
Scott Cardani 14:27
And remember, when you’re trying to enforce an order, quite often, attorneys fees are available to you.
Jackie Critzer 14:32
Well, we appreciate you tuning into our podcast today. Be sure and like and subscribe, wherever you listen to your podcast, and we look forward to seeing you next time.
Scott Cardani 14:40
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