Week after week I find myself reading decisions that deal with the imposition of sanctions against one party in a family law matter and the validity of these sanctions.  Oddly enough it seems as though the recent flood of sanction-related cases have to do with a party’s aberrant behavior and the court’s attempt to curb this behavior in the form of a financial punishment.

Sanctions are not a new method of coercion or punishment in the court system.  Non-family related matters often use sanctions and some may say do so more willingly that family part judges.

As with anything in life, there are times when we are asked or have to do things that we simply don’t want to do or perhaps don’t feel like doing at that moment.  Well imagine that feeling mixed with the high emotions that often run in any family law matter.  The simple reality is that there are times when despite an attorney’s best efforts, a client simply will not do what they are asked to do or what the court and rules require them to do.  This is not only an uncomfortable and perhaps frustrating position for the attorney but even more importantly, a precarious position for the client.

When the courts are involved disobedience on what one may deem is ‘not a big deal’ or ‘won’t make a difference’ can carry heavy consequences.  Most frequently a court will hold one party in violation of litigant’s rights.  In simplest terms, that means that one party has violated the rights of the other party and the court is noting this violation in a formal record, by way of an Order memorializing the violation.  The next step or often coupled with a finding of a violation of litigant’s rights is an award of counsel fees to the non-violating party.  Often as a deterrent to future non-compliance and perhaps even as a punishment, the court will order the non-complying party to pay either all or a portion of the other party’s counsel fees.  Oftentimes, this is enough to get the misbehaving party’s attention.  It may not be though and where it is not and all other remedies have proven fruitless, a court can and will order sanctions.

Sanctions are often a monetary fine but tend to be more serious then a payment of counsel fees.  I have seen sanctions in the form of a daily payment for each day that a party is non-compliant.  I have also seen bench warrants issue for the arrest of a non-compliant party.  In family law matters, these two methods are used – but they are far from everyday occurrences, as court’s many times give litigants way too much leeway even when orders are clearly violated.

So what’s with all the fuss from the Appellate Division about these sanctions if they are used when everything else fails you ask?  Well the recently decided case that I’m referencing dealt with an award of future sanctions for future non-compliance of an order.  In the matter of Sheinbaum v. Campbell, A-3857-07T3, decided August 25, 2009, the court ordered a $500 sanction against a party for each future violation of a court Order.  In this highly litigious matter where several motions and emergent applications had been filed where the one party failed to comply with multiple Orders issued, the trial judge ordered the above future sanction in conjunction with counsel fees and other relief.

On appeal, the Appellate Division held that the ordering of a $500 sanction for each future violation was “premature”.  In addition, because the lower court did not explain how it arrived at the the amount; why a smaller sanction would not have been effective; or consider the party’s inability to pay, the Court could not uphold the Order as it stood.

The message – perhaps if the lower court had explained how it came to the $500 amount and justified this amount versus a smaller amount and considered the party’s ability to pay, the sanction may be have been upheld.  That remains to be seen.  In navigating your way through the court process, keep in mind that your non-compliance could have serious monetary or other consequences.  Then again, maybe it wont.

EDITOR’S NOTE:  I have previously blogged about frustrations by lawyers and litigant’s alike about a court not enforcing their own orders, not granting counsel fees when enforcement motions are filed, etc.  Too many recalcitrant litigant’s know this too and take advantage of the system, knowing it will cost the other party money to get what they are entitled to and that they may suffer a slap on the wrist.  As a young lawyer, I practiced in Colorado for about 2 years after practicing in NJ for a year.  After my brief experience in NJ, I was shocked dung my first contempt hearing when the dad was cuffed and sentenced to 6 months for contempt for failing to pay child support.  Attorneys in other states have commented to me that they are surprised how lax our courts are in enforcement matters.  That does not mean that a litigant should give up and not file enforcement motions.  As in the case the Sandra blogged about, eventually enough was enough.  That said, even when sanctions were imposed, they did not hold up.  ERIC S. SOLOTOFF

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