Officially released June 19, 2018.
Short version: (1) there is no controlling authority to support the argument that reliance on advice of counsel can act as a shield to willfulness in a contempt proceeding, (2) present evidence, not merely legal argument, when prosecuting a motion to open (or anything else for that matter).
Prior to dissolution, the parties entered into a pendente lite stipulation providing that certain funds be released for deposit into a joint account requiring the signatures of both parties prior to any withdrawals. Thereafter, the parties deposited the funds into an account without the requisite protections.
Defendant filed a motion for contempt alleging that Plaintiff transferred a portion of those funds into his own personal account. Plaintiff testified that he consulted with his attorney but did not testify that he relied on advice of counsel in withdrawing the funds. Plaintiff was found in contempt. Plaintiff’s filed a motion to reconsider which was denied.
The parties entered into an agreement that was incorporated into a judgment of dissolution. As part of that agreement, the parties agreed to file a joint motion seeking to open and vacate the finding of contempt, ostensibly because they believed it could hinder future employment. Argument was made at a hearing on the joint motion to open and vacate, but no evidence was presented. Plaintiff spoke on his own behalf but was not sworn in. The joint motion to open and vacate motion was denied.
Plaintiff appealed the finding of contempt, the denial of his motion for reconsideration and the denial of the joint motion to open and vacate the finding of contempt.
The Appellate Court first considered the issues pertaining to the initial finding of contempt and denial of the motion for reconsideration thereof. The Appellate Court noted that there was no dispute as to whether underlying order was clear and unambiguous. Husband’s only claim of error related to the willfulness component, namely, that he was not willful because he relied upon advice of counsel. The Appellate Court noted that Plaintiff did not actually testify that he relied upon the advice of counsel, only that he consulted with counsel. The Appellate Court stated that there is no controlling authority for the proposition that reliance on counsel’s advice is a shield to a finding of contempt.
The Appellate Court then moved to the issue of the joint motion to open and vacate the contempt finding. The Appellate Court noted that its review of denial of a motion to open a judgment is limited to whether the trial court acted unreasonably and in clear abuse of discretion. As no evidence was presented, only argument, the Appellate Court found no such abuse of discretion.
