3.6Initiation of Proceedings by Affidavit or Other Method

In cases of indirect contempt, or in direct contempt cases where the court has deferred a hearing on the alleged contempt, the court may punish the contemnor only “after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend.” MCL 600.1711(2); see also In re Scharg, 207 Mich App 438, 439-440 (1994) (concluding that the defendant, who committed direct contempt, “should have been afforded a full hearing before a different judge” where the trial court elected to defer the contempt proceedings until after the trial).

A.Initiation by Affidavit

MCR 3.606(A) contains the required procedures for adjudicating indirect contempts and states in relevant part:

“(A) Initiation of Proceeding. For a contempt committed outside the immediate view and presence of the court, on a proper showing on ex parte motion supported by affidavits, the court shall either

(1) order the accused person to show cause,^[1] at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct; or

(2) issue a bench warrant^[2] for the arrest of the person.”³

“Before a show cause order may issue, there must be a sufficient foundation of competent evidence, and legitimate inferences therefrom.” In re Contempt of Steingold, 244 Mich App 153, 158 (2000) (quotation marks and citation omitted). An affidavit “did not sufficiently state facts that, along with legitimate inferences from the facts, constitute contempt as a matter of law” where “the affidavit did not identify any specific orders that were violated, identify any contemptuous actions, or even identify the individual or individuals responsible for the alleged conduct.” Ferranti v Electrical Resources Co, 330 Mich App 439, 445 (2019) (further holding the affidavit failed to meet the requirements under MCR 2.119(B)(1)).⁴

The alleged contemnor “is entitled to be informed not only whether the contempt proceedings filed against him [or her] are civil or criminal, . . . but also the specific offenses with which he [or she] is charged.” In re Contempt of Rochlin, 186 Mich App 639, 649 (1990).

B.Taking Judicial Notice to Initiate Proceedings

A court can take judicial notice of its own records to satisfy the requirement of MCL 600.1711(2) that proceedings must be initiated “by affidavit or other method.” In re Albert, 383 Mich 722, 724 (1970). In Albert, the Court held that where the contempt consisted of the failure to timely file pleadings in the Court of Appeals, a show cause order based upon affidavit was not required. Id. “A court’s judicial notice of its own records is a wholly satisfactory ‘other method’ of establishing the failure or the fact of filing in a particular period[.]” Id.

See also In re Contempt of Calcutt, 184 Mich App 749, 757 (1990) (noting that a show cause order can be properly issued on a court’s own motion, supported by judicial notice of the court’s own records); In re Hudnut, 57 Mich App 351, 353 (1975) (where an attorney failed to appear on a hearing date, the court could take judicial notice of its own records rather than file an affidavit to initiate contempt proceedings).

C.Initiating Contempt Proceedings in Domestic Relations Cases

Although MCR 3.606(A) (initiation by affidavit) is the default court rule governing the initiation of proceedings involving indirect contempt, MCR 3.208 governs contempt proceedings under the Support and Parenting Time Enforcement Act. MCR 3.208(B) permits the Friend of the Court to move for an order to show cause why the party should not be held in contempt if a party fails to comply with an order or judgment. MCR 3.208(B)(1). Alternatively, the rule allows the Friend of the Court to schedule a hearing before a judge or referee for the party to show cause why the party should not be held in contempt in nonpayment of support cases. Id.

For a detailed discussion of contempt in domestic relations cases, see Part II of Chapter 5.

D.Waiver of Notice

Any irregularities in the initiation of a contempt action are waived when the alleged contemnor voluntarily appears in court and presents a defense to the contempt charge. See In re Huff, 352 Mich 402, 412-413 (1958); In re McHugh, 152 Mich 505, 510-511 (1908).

However, where the alleged contemnor does not appear voluntarily, there is no waiver of the right to have the charges presented by affidavit. In re Contempt of Nathan, 99 Mich App 492, 494-495 (1980) (no waiver occurred where the alleged contemnor was involuntarily returned to the courtroom by a police officer who overheard her allegedly contemptuous remarks). Further, where the alleged contemnor appears and challenges the court’s jurisdiction, there is no waiver of any irregularities in the initiation of the proceedings. In re Contempt of Barnett, 233 Mich App 188, 193 (1998).