In previous blogs we have discussed various aspects of enforcing court orders, including
Orders to Show Cause and the
components of an Order to Show Cause. So, now we have all the parts of an Order to Show Cause together. What does one do with it?
Presenting the Motion
First, the motion fee must be paid to the county clerk (as of this writing in Spring of 2016, a motion fee is $45.00). The clerk will stamp the document as paid. Next, the motion must be presented to the correct judge. This is usually the judge who issued the order that you want to enforce; but what happens if that judge is on vacation or just not around? In that case, your attorney will have to seek out the judge of the day, or motion term judge, to sign the order to show cause in place of the judge who originally issued the order.
The Judge's Role in Enforcement
Some judges want to speak with the attorney about it before signing. Others will not. If ex parte relief is requested, the attorney representing the party that violated the order must be put on notice that this is being presented to a judge for signature. The judge then has a choice to make.
The judge can choose to do any of the following:
- Sign the Order to Show Cause "as is" and set a date for it to be heard.
- Strike portions of the Order to Show Cause, grant the rest of it, and set a date for it to be heard.
- Refuse to sign it at all.
Once the Order to Show Cause has been signed by the judge, it must be served on the offending party and/or their attorney. This is usually required to be done by personal service (meaning you will need to pay a process server $50-150 to have it served). The parties then wait for the return date to come. On the return date, the parties and their attorneys appear before the judge and argue about whether or not the evil-doer should be punished, how the order will be enforced, and argue for or against any other relief that has been requested.
The judge may grant certain relief right then and there. The judge may also set the matter down for a hearing (a mini-trial centered on limited issues). No one who violates an order can be held in contempt without a hearing, unless he or she waives his or her right to a hearing (which happens rarely, if ever). The hearing can be scheduled any time from right then and there (though it almost never happens that quickly) to several months later.
Proving the Essential Elements of an Order
At the hearing, it is the burden of the person who brought the Order to Show Cause to prove all the essential elements. This is done by putting witnesses on the stand to testify and be cross-examined and by offering evidence. The opposing party – "the evil-doer" by many respects – will also have an opportunity to call witnesses in his or her defense and to offer evidence. The hearing may last for 15 minutes, a couple hours, or for several days. This is up to the judge.
At the conclusion of the hearing, the judge may make a ruling from the bench, or may reserve a decision and issue a written finding. While the law requires a decision within 20 days (pursuant to Civil Practice Law and Rules 2219), judges often take 30-60 days. It is unwise to prod a judge to render a decision before he or she is ready, regardless of what the rules say.
Enforcing the Order
Once the judge renders a decision, the attorney for the person who brought the Order to Show Cause will usually be directed to prepare an order in accordance with the judge's decision. That order must be provided to the offending party's attorney to have the content and language approved. Often there will be some minor changes.
Sometimes, the other attorney will object and the Court will have to set another appearance date to settle the terms of the order. Once the order is settled (either between the attorneys or by the Court), it must be presented to the judge for signature. Then it must be filed with the County clerk. A copy of the order must then be served on the violator and/or his or her attorney. That is the life cycle of enforcing an order during a Divorce proceeding, at least in Western New York.
Have more questions? Contact me, Buffalo Family Law Attorney Charles Messina, for answers. I can even set you up with a
free initial consultation. There will also be a final "closing thoughts" entry for this series so check my
blog later on to catch the conclusion.