Motion for Contempt / Enforcement — Custody & Support (Delaware)

PETITION AND RULE TO SHOW CAUSE FOR CONTEMPT — CUSTODY AND SUPPORT ENFORCEMENT

Family Court of the State of Delaware

I. COURT CAPTION AND CASE INFORMATION

IN THE FAMILY COURT OF THE STATE OF DELAWARE
IN AND FOR [☐ NEW CASTLE ☐ KENT ☐ SUSSEX] COUNTY

File No.: [________________________________] (same file as the underlying order)
Petition No.: [________________________________]

PETITION FOR RULE TO SHOW CAUSE (CONTEMPT) (Del. Fam. Ct. Civ. R. 70(b); 13 Del. C. § 516)

II. NOTICE TO RESPONDENT / RULE TO SHOW CAUSE

TO [________________________________] (Respondent), AND TO YOUR ATTORNEY OF RECORD, IF ANY:

YOU ARE COMMANDED to appear before this Court at the date and time the Court assigns to show cause why you should not be held in contempt for failing to comply with the order(s) described below.

WARNING — POSSIBLE CONSEQUENCES. A finding of contempt may result in a money judgment for arrears, an income attachment / wage withholding, make-up visitation, an award of attorney's fees and costs, suspension of your driver's, professional, or recreational licenses, and commitment to the Department of Correction.

By statute (13 Del. C. § 516(a)), you may not be committed to the Department of Correction for a support violation unless the Court finds that you had actual, clear notice of the order and had the ability to pay but wilfully failed to substantially comply, and you must be given the opportunity to avoid or end any commitment by a reasonable measure of compliance (a purge). You have the right to be represented by an attorney; if incarceration is a possible result and you cannot afford counsel, you may be entitled to appointed counsel or other safeguards under Turner v. Rogers, 564 U.S. 431 (2011).

IF YOU FAIL TO APPEAR, the Court may issue a capias (warrant) for your arrest.

III. JURISDICTION, VENUE, AND PARTIES

1. This Court has continuing jurisdiction over the parties and subject matter because it entered the underlying order(s). (10 Del. C. § 921; 13 Del. C. § 507; UCCJEA, 13 Del. C. §§ 1901 et seq.; UIFSA, 13 Del. C. §§ 6-101 et seq.)

2. Venue is proper in [☐ New Castle ☐ Kent ☐ Sussex] County.

3. Movant is [________________________________], residing at [________________________________].

4. Respondent is [________________________________], whose last known residence is [________________________________].

5. The minor child(ren) subject to the order(s):

IV. THE ORDER(S) AT ISSUE

1. On [__/__/____], this Court entered a [☐ Order of Support ☐ Custody / Visitation Order ☐ Property/Ancillary Order ☐ Consent Order ☐ Other: __________] (the "Order"). A true and correct copy is attached as Exhibit A.

2. The Order is clear and specific as to the obligation(s) alleged to have been violated. The operative provisions are quoted verbatim:

"[QUOTE THE EXACT ORDERED LANGUAGE — e.g., 'Respondent shall pay child support of $______ per month through the Division of Child Support Services.' / 'The parties shall share residential placement and visitation as follows: ______.']"

3. Actual, clear notice of the Order. The Respondent has actual, clear notice because (check all that apply):

☐ Present in court when the Order was entered on [__/__/____].
☐ Signed the consent order / agreement.
☐ Served with the Order on [__/__/____].
☐ Represented by counsel, [________________________________], when the Order was entered.

4. The Order has not been stayed, modified, or vacated and remains in full force and effect.

V. SPECIFIC VIOLATIONS

The Respondent, having actual clear notice of the Order and the ability to comply, has wilfully failed to comply as set forth below.

A. ☐ Failure to Pay Child Support

Total child-support arrearage as of [__/__/____]: $[____________________]

B. ☐ Failure to Pay Spousal Support / Alimony

Total spousal-support arrearage as of [__/__/____]: $[____________________]

C. ☐ Denial of Court-Ordered Custody / Visitation

• Item [__]: On [__/__/____], in violation of paragraph [__] of the Order, the Respondent failed and refused to provide court-ordered visitation scheduled from [TIME] to [TIME] at [LOCATION]. [Describe: withheld the child / failed to appear for the exchange / did not return the child.]
• Item [__]: On [__/__/____], [describe the second occurrence].
• Item [__]: On [__/__/____], [describe the third occurrence].

D. ☐ Other Violation

• Item [__]: [Describe the act, date, and the specific provision violated — e.g., failure to maintain health insurance, failure to reimburse uninsured medical expenses, failure to perform an act required by an ancillary/property order.]

VI. LEGAL STANDARD

A. Elements of Civil Contempt

To establish civil contempt, the Movant must show that the Respondent, having knowledge of a valid order, failed to comply with it. (DiSabatino v. Salicete, 671 A.2d 1344 (Del. 1996).) Inability to comply, without fault, is a defense.

For a support violation, 13 Del. C. § 516(a) frames the inquiry: after notice and a hearing on a rule to show cause, the Court determines whether the Respondent "has violated the terms of an order of support," may punish the Respondent for contempt, and may attach the Respondent's income.

B. Civil (Coercive) vs. Criminal (Punitive) Contempt

• Civil / coercive contempt is remedial: it coerces compliance and compensates the Movant. Any coercive incarceration must include a purge the Respondent can satisfy. For support, this is required by statute: § 516(a) provides that the Respondent "must be provided the opportunity to avoid or be released from commitment to the Department of Correction upon a reasonable measure of compliance established by the Court."
• Criminal / punitive contempt imposes a fixed, unconditional sanction to vindicate the court's authority and carries heightened protections (notice of the criminal nature, the privilege against self-incrimination, and proof beyond a reasonable doubt).

C. Ability to Pay / Turner v. Rogers — Statutory Safeguard (§ 516(a))

Delaware has codified the Turner v. Rogers, 564 U.S. 431 (2011), ability-to-pay safeguard for support contempt. Under 13 Del. C. § 516(a), the Court may not commit the Respondent to the Department of Correction unless it finds that the Respondent:

☐ had actual clear notice of the order, and
☐ had the ability to pay, and
☐ wilfully failed to substantially comply with the obligation.

The Court should ensure the Respondent has notice that ability to pay is the critical issue, an opportunity to provide financial information, a meaningful opportunity to be heard, and the opportunity to purge by a reasonable measure of compliance.

VII. RELIEF REQUESTED

WHEREFORE, the Movant respectfully requests that the Court:

1. Issue a Rule to Show Cause under Del. Fam. Ct. Civ. R. 70(b) and 13 Del. C. § 516 directing the Respondent to appear and show cause why the Respondent should not be held in contempt;

2. Find the Respondent in contempt for each violation proven;

3. Enter judgment for the total arrearage of $[____________________] in unpaid [☐ child support ☐ spousal support];

4. Order income attachment / wage withholding under 13 Del. C. §§ 513, 516(a) for ongoing support and the arrearage, and order an additional amount toward arrears under § 516(b);

5. Order make-up visitation under 13 Del. C. § 728 to compensate the Movant for visitation wrongfully denied, as follows: [describe schedule];

6. Award the Movant attorney's fees and costs, including the fees of the officer serving the Rule, in the amount of $[____________], or as proven;

7. Impose coercive sanctions, including commitment to the Department of Correction only upon the findings required by § 516(a) and conditioned on a purge (a reasonable measure of compliance) as set out in the Proposed Order;

8. Order suspension of the Respondent's license(s) under 13 Del. C. § 516(g) upon a finding that the Respondent owes $1,000 or more in arrears, is 30 or more days delinquent, and the failure to pay is wilful and not due to inability to pay (license as defined in 13 Del. C. § 2216);

9. Grant such other relief as the Court deems just, including any order in the best interests of the child (13 Del. C. § 722).

VIII. VERIFICATION / AFFIDAVIT OF MOVANT

I, [________________________________], being duly sworn, depose and say:

1. I am the Movant. I have personal knowledge of the facts in this Petition and could competently testify to them.

2. The Order in Section IV is a true and correct order of this Court, in full force and effect.

3. The Respondent has actual, clear notice of the Order as stated in Section IV.3.

4. The violations in Section V occurred as alleged. Supporting documents are attached: [☐ Division of Child Support Services payment record ☐ bank records ☐ communications ☐ visitation log].

5. To the best of my knowledge, the Respondent had the ability to pay/comply at the time of each violation, based on: [describe — employment, income, assets, expenditures, partial compliance].

6. The good-faith efforts I made to obtain compliance before filing were: [describe].

I declare under penalty of perjury that the foregoing is true and correct.

Subscribed and sworn to before me on [__/__/____].

_________________________________
[________________________________], Movant

_________________________________ Notary Public / Clerk My commission expires: [__/__/____]

_________________________________
[________________________________], Attorney for Movant
Bar ID No. [____________]
[Firm Name / Address / Telephone / Email]

IX. [PROPOSED] ORDER (with Purge)

After a hearing on the Rule to Show Cause, the Court FINDS and ORDERS:

1. The Respondent had actual, clear notice of the Order; had the ability to pay/comply; and wilfully failed to substantially comply as to Items [____________].

2. The Respondent is found in contempt.

3. Judgment is entered for $[____________________] in arrears.

4. Income attachment / wage withholding shall issue under 13 Del. C. §§ 513, 516, and the Respondent shall pay an additional $[________] per [week/month] toward arrears (§ 516(b)).

5. Make-up visitation is ordered: [________________________________].

6. The Respondent shall pay the Movant's attorney's fees and costs of $[____________], including the serving officer's fees.

7. Sanction. The Respondent is committed to the Department of Correction for [____] days, the Court having found actual clear notice, ability to pay, and wilful failure to substantially comply; commitment is suspended / may be avoided or ended upon the Respondent satisfying the following purge (reasonable measure of compliance) under § 516(a):

☐ payment of $[____________] toward the arrearage by [__/__/____];
☐ compliance with the [visitation / support] provisions for [____] consecutive [weeks/months];
☐ [other purge: ________________________________].

8. ☐ The Respondent's license(s) are suspended under 13 Del. C. § 516(g) (arrears ≥ $1,000; 30+ days delinquent; wilful nonpayment).

Date: [__/__/____]

_________________________________
JUDGE / COMMISSIONER, FAMILY COURT

X. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true copy of the foregoing Petition for Rule to Show Cause (Contempt), the Rule to Show Cause, and all exhibits was served on the Respondent as follows:

☐ Personal service by [sheriff / special process server] on [__/__/____] at [LOCATION] (required where commitment is a possible sanction);
☐ Service on appearing counsel of record, [________________________________], by [method] (where permitted);
☐ Other: [________________________________].

_________________________________
[Printed Name and Signature of Server]

XI. EXHIBITS

• Exhibit A: Copy of the underlying Order dated [__/__/____]
• Exhibit B: Proof establishing actual, clear notice of the Order
• Exhibit C: Division of Child Support Services / certified payment record
• Exhibit D: Evidence of ability to pay/comply
• Exhibit E: Communications regarding the violations
• Exhibit F: Visitation log / calendar
• Exhibit G: Movant's financial affidavit / Rule 16(c) financial report
• Exhibit H: Attorney-fee affidavit with billing records

SOURCES AND REFERENCES

• Del. Fam. Ct. Civ. R. 70(b) (Contempt and Other Remedies for Disobedience of Court Order) — Delaware Family Court Rules of Civil Procedure, https://courts.delaware.gov
• 13 Del. C. § 516 (violation of support order; rule to show cause; contempt; income attachment; license suspension) — https://codes.findlaw.com/de/title-13-domestic-relations/de-code-sect-13-516/
• 13 Del. C. § 513 (income withholding); § 517 (no limitations / no interest on arrears); § 728 (custody/visitation); § 722 (best interests); § 507 (enforcement of agreements); § 2216 (license definitions)
• 10 Del. C. § 925 (Family Court contempt / commitment power)
• Turner v. Rogers, 564 U.S. 431 (2011)
• DiSabatino v. Salicete, 671 A.2d 1344 (Del. 1996)