4.7.2 Burden of Proof

Contempt adjudications in civil court are governed by La. C.C.P art. 221, et seq., and punishments for contempt must be explicitly authorized under La. R.S. 13:4611. Given the 2018 repeal of La. R.S. 46:2137, lawyers should be cognizant of the differences between criminal and civil contempt. The question of whether the contempt action is civil or criminal in nature will determine the petitioner’s burden of proof and the remedies that can be imposed.

To determine whether a contempt proceeding in civil court is civil or criminal in nature, one must look to the purpose of the punishment requested or imposed.1  When the primary purpose of a contempt proceeding is to punish past behavior rather than compel future behavior, the proceeding is criminal in nature.2  In other words, when the punishment for contempt does not allow a party the opportunity to avoid the sentence or fine by satisfying certain obligations, it is criminal.3  Even when prosecuted in civil court, criminal contempt proceedings invoke more procedural safeguards by way of notice, opportunity to be heard, the presumption of innocence, the right not to be compelled to testify against oneself, and proof beyond a reasonable doubt.4

In contrast, a civil contempt proceeding is one in which the punishment requested or imposed has a remedial purpose of compelling a party’s compliance with a court order or vindicating the court’s authority.5  Civil contempt must be proven by a preponderance of the evidence.6

Civil contempt can be an especially important tool for addressing protective order violations relating to ancillary provisions like support orders, orders to transfer possession of assets or things, and child custody and visitation provisions. The rules governing contempt are strict, so make sure to carefully review them before initiating an action for contempt.7

• 1Streiffer v. Deltatech Constr., LLC, 2019-0990, pp. 7–8 (La. App. 4 Cir. 3/25/20), 294 So. 3d 564, 571–72; Joseph v. Entergy, 2005-0263, p. 5 (La. App. 4 Cir. 8/3/05), 918 So. 2d 47, 51.
• 2See Streiffer, 2019-0990, 294 So. 3d at 572; Hicks v. Feiock, 485 U.S. 624, 635–36 (1988) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443 (1911)).
• 3See Streiffer, 2019-0990, 294 So. 3d at 572.
• 4Id.; In re Milkovich, 493 So. 2d 1186, 1189 (La. 1986) (citing Bloom v. Illinois, 391 U.S. 194 (1968)); Joseph, 2005-0263, p. 5, 918 So. 2d at 51 (quoting State ex rel. R.J.S, 493 So. 2d 1199, 1202­03 (La. 1986)).
• 5Joseph, 2005-0263, p. 5, 918 So. 2d at 51; Streiffer, 2019-0990, 294 So. 3d at 572; Hicks, 485 U.S. at 631–32 (quoting Gompers, 221 U.S. at 441).
• 6Entergy, 2005-0263, p. 5, 918 So. 2d at 51; Par. of Jefferson v. Lafreniere Park Found., 98-345, p. 6 (La. App. 5 Cir. 9/15/98), 720 So. 2d 359, 364–65.
• 7See Entergy, 2005-0263, p. 5, 918 So. 2d at 51 (citing Brunet v. Magnolia Quarterboats, Inc., 97-187 (La. App. 5 Cir. 3/11/98), 711 So. 2d 308, 313).