“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment,[1] or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:
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(g) Parties to actions, attorneys, counselors, and all other persons for disobeying any lawful order, decree, or process of the court.” MCL 600.1701(g).
Committee Tip:
While failure to follow the conditions of a probation order could theoretically be considered a contempt of court for failure to follow a court order, specific court rules and statutes address a probationer’s failure to follow the dictates of probation and it is best practice to follow the probation violation process rather than hold a probationer in contempt. For a detailed discussion of the probation violation process, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2.
B.Misconduct by Persons Present in the Courtroom
The trial court properly exercised its power to hold the appellant in contempt where the appellant “willfully disobeyed the trial court’s order to remove his shirt or leave the courtroom.” In re Contempt of Dudzinski, 257 Mich App 96, 108, 110 (2003). The “[a]ppellant was on notice and understood what the trial court was ordering him to do, but still refused to obey the order. The trial court found [the] appellant in contempt only after having given him several chances to obey its order.” Id. at 110.
C.Violation of a Bond Condition
Violation of a bond condition is punishable by contempt because “a court’s decision in setting bond is a court order[,]” and “a bail decision is an interlocutory order.” People v Mysliwiec, 315 Mich App 414, 417 (2016). A “bond condition prohibiting [the] defendant’s use of alcohol was a court order punishable by contempt[]” under MCL 600.1701(g) where the trial court orally ordered that a condition of the defendant’s bond was to abstain from possession or consumption of any alcohol and then “issued written mittimuses, which required [the] defendant to have no alcohol.” Mysliwiec, 315 Mich App at 418.
Generally, courts speak through written judgments and decrees, not through oral statements. Arbor Farms, LLC v Geostar Corp, 305 Mich App 374, 387 (2014). “However, there are circumstances where ‘[a]n oral ruling has the same weight and effect as a written order,’ as when, for example, an oral ruling clearly communicates the finality of the court’s pronouncement.” Id. at 388, quoting McClure v HK Porter Co, 174 Mich App 499, 503 (1988). “When assessing whether an oral ruling has equal effect to that of a written order, [the Court of Appeals] consider[s] whether the oral ruling contains indicia of formality and finality comparable to that of a written order.” Arbor Farms, LLC, 305 Mich App at 388.
In Arbor Farms, LLC, “a postjudgment collection action to enforce a foreign money judgment,” the Court concluded that the oral order issued by the trial court had the same weight and effect as a written order because it had adequate indicia of formality and finality. Id. at 377, 388. Specifically, the Court of Appeals observed that the trial court “unequivocally indicated that ‘this is the ruling of the Court’” and stated it was modifying a previous order. Id. at 388. The trial court further specified that an inventory of assets and a privilege log must be created within 30 days by the defendant. Id. The Michigan Court of Appeals found that “[t]hese statements reflect a formal resolution, not a tentative conclusion or merely loose impressions of the matter.” Id. The Court further noted that the defendant submitted a statement to the trial court discussing its oral instructions and claiming it was not possible to comply; thus, the defendant recognized the binding nature of the order. Id. at 388-389. The Court of Appeals held that “[g]iven the formality of the [trial] court’s oral ruling and [the] defendant’s own recognition of its applicability, [the] defendant’s contention that the order was not final [until a written order was entered] is unpersuasive and appears disingenuous.” Id. at 389. Accordingly, the Court of Appeals held that the trial court did not err by holding the defendant in contempt for failing to comply with its oral order to create an inventory of assets and a privilege log. Id.
E.Even Clearly Incorrect Orders Must Be Obeyed
An order entered by a court of proper jurisdiction must be obeyed even if the order is clearly incorrect. Kirby v Michigan High School Athletic Ass’n, 459 Mich 23, 40 (1998).2 See also In re Contempt of Pavlos-Hackney, 343 Mich App 642, 648 (2022) (“It has long been established that even if a court’s order is incorrect, persons subject to the order must still comply with the order, and their remedy is to appeal the order or seek a stay”). Moreover, an “underlying challenge to the original [court] order cannot be raised for the first time in a contempt proceeding.” In re Contempt of Dorsey, 306 Mich App 571, 590 (2014), vacated in part on other grounds 500 Mich 920 (2016).3 The failure to properly challenge the court order results in a waiver of the challenge. Id. See also Dep’t of Agriculture v Zante, Inc, ___ Mich App ___, ___ (2023) (upholding the validity of the trial court’s finding of contempt where the contemnor argued the court order she violated was unconstitutional, but she “elected to bypass the administrative and subsequent judicial processes that would have afforded her a full hearing on her constitutional claims,” and instead violated two then-lawful court orders). However, the circuit court was not “required to enforce the contempt orders on remand” where the appellee conceded that the underlying order was improperly entered and enforcement of the contempt orders was stayed pending appeal. In re Contempt of Dorsey, 500 Mich at 920.
“[P]ersons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.” State Bar v Cramer, 399 Mich 116, 125 (1976), abrogated on other grounds Dressel v Ameribank, 468 Mich 557 (2003) (citations and quotation marks omitted). The trial court continues to have jurisdiction to enforce its order until such time that an appellate court dissolves the order. Ann Arbor v Danish News Co, 139 Mich App 218, 229-230 (1984). Thus, after an order has been stayed or reversed on appeal, it is no longer appropriate for the trial court to seek to compel the contemnor to comply with the order. See Davis v Detroit Fin Review Team, 296 Mich App 568, 626 (2012). In Davis, 296 Mich App at 626, the defendant disregarded the trial court’s order compelling the defendant to hold its meetings in accord with the Open Meetings Act. The Court of Appeals held that the Open Meetings Act did not apply to that defendant, and that although the defendant was in contempt for disregarding the order while it was in effect, the defendant could not be ordered to comply with the order after it was vacated. Id. The Court noted that the plaintiff could nevertheless “potentially be entitled to a civil contempt sanction in the form of a compensatory award” if a civil contempt could be proven. Id.
Note: An appeal does not automatically stay enforcement of a court’s judgment or order, except for an automatic stay pursuant to MCR 2.614, MCL 600.867, or as otherwise provided in MCR 7.209. MCR 7.209(A)(1).
“‘A person may not disregard a court order simply on the basis of his subjective view that the order is wrong or will be declared invalid on appeal.’” Johnson v White, 261 Mich App 332, 346 (2004), quoting In re Contempt of Dudzinski, 257 Mich App 96, 111 (2003). However, the Court noted that these rules only apply when the order is issued by a court with jurisdiction over the person and over the subject matter. Johnson, 261 Mich App at 346. In Johnson, the Court of Appeals reversed a lower court’s finding of contempt against a defendant for violating the court’s order for grandparent visitation. On January 10, 2001, the lower court entered an order for grandparent visitation. Three months later, the defendant violated the order by moving his children to another state. Id. at 335. On January 25, 2002, the Court of Appeals issued its decision in DeRose v DeRose, 249 Mich App 388, 395 (2002), and found the grandparent visitation statute, MCL 722.27b, unconstitutional. On March 28, 2002, the lower court found the defendant in Johnson in contempt of court for violating its order. Johnson, 261 Mich App at 334. The trial court subsequently denied the defendant’s motion to vacate the contempt order. Id.
The defendant argued on appeal that the contempt order should have been vacated because the lower court lacked subject matter jurisdiction over the grandparent visitation issue as a result of the Court of Appeals decision in DeRose, 249 Mich App at 345. The defendant claimed that MCR 7.215(C)(2) required the lower court to give immediate precedential effect to DeRose even though, at the time of the show cause hearing, an appeal of the decision in DeRose was pending in the Supreme Court. Johnson, 261 Mich App at 346. MCR 7.215(C)(2) states that a published Court of Appeals opinion has precedential effect and the “filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.” Johnson, 261 Mich App at 346-347. The trial court disagreed and ruled that MCR 7.215(C)(2) should be read in conjunction with MCR 7.215(F)(1)(a), which states that a “Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court[.]” Johnson, 261 Mich App at 347.
The Court of Appeals found the trial court’s reliance on MCR 7.215(F)(1)(a) misplaced and stated that MCR 7.215(F)(1)(a) “pertains to the timing of when our judgment becomes final in regards to the parties to the appeal and its enforceability with respect to the trial court that presided over the case.” Johnson, 261 Mich App at 347. The Court also indicated that MCR 7.215(C)(2) clearly provides that filing an application for leave to appeal to the Supreme Court or an order granting leave does not change the precedential effect of the decision of the Court of Appeals. Johnson, 261 Mich App at 347. The Court concluded that the trial court erred in determining that it did not need to give DeRose precedential effect. Johnson, 261 Mich App at 348.
At the time the defendant was held in contempt, the opinion in DeRose had already been issued; therefore, DeRose had binding precedential effect, and the lower court was without jurisdiction over the subject matter of the contempt order. Johnson, 261 Mich App at 349-350. Because the lower court lacked subject matter jurisdiction when it entered the contempt order, the Court of Appeals reversed the lower court’s finding of contempt. Id. at 349-350. The holding in Johnson “does not stand for the proposition that courts lack contempt jurisdiction when an underlying law is subsequently declared unconstitutional,” rather, “Johnson’s holding applies only if a statute has been declared to be unconstitutional before a contempt judgment is entered.” Zante, Inc, ___ Mich App at ___ (rejecting the defendant’s challenge to the judgment of contempt because at the time the contempt judgment was entered it fully conformed with then-existing law).
The attorneys for a party in divorce proceedings were properly cited for contempt and ordered to pay damages after they failed to advise their client to obey a court order pending appeal. Schoensee v Bennett, 228 Mich App 305, 317 (1998) “While [the] plaintiff’s attorneys did not technically instruct their client to violate the order, their failure to advise their client of his obligation to comply with the order had the same effect.” Id.
F.Reliance on Attorney’s Advice
“The federal courts have ruled that when an individual in good faith relies upon his [or her] attorney’s advice or interpretation of a court order, he [or she] cannot be found guilty of criminal contempt since the element of an intentional violation of the court’s order has not been established.” In re Contempt of Rapanos, 143 Mich App 483, 495 (1985), citing Proudfit Loose Leaf Co v Kalamazoo Loose Leaf Binder Co, 230 F 120, 132 (CA 6, 1916). However, the federal criminal contempt rule has not been adopted in Michigan. In re Contempt of Dorsey, 306 Mich App 571, 592 (2014), vacated in part on other grounds 500 Mich 920 (2016)4 (stating that “there is no indication that [the Rapanos Court] adopted [the federal rule].”) Further, the Michigan Supreme Court has held that where a client acted under his attorney’s advice in violating an injunction, the client was liable for the actual damages caused by that behavior. Chapel v Hull, 60 Mich 167, 175 (1886). See also Brown v Brown, 335 Mich 511, 518-519 (1953) (“It is not a defense that one who violated an injunction did so upon the advice of counsel.”) Moreover, even assuming the federal rule regarding criminal contempt is applicable in Michigan, the Dorsey Court declined to apply the rule in that case because the appellant failed to cite any authority in support of the extension of the federal rule to situations where an individual refuses to comply with an order because he or she intends to seek the advice of counsel. In re Contempt of Dorsey, 306 Mich App at 593.
In the context of civil contempt charges, the United States Supreme Court held that “[t]he absence of wilfulness does not relieve from civil contempt.” McComb v Jacksonville Paper Co, 336 US 187, 191 (1949). Thus, violating an order on the advice of counsel would not be a defense to civil contempt. See id.
MCR 3.310(C)(4) states that an injunctive order “is binding only on the parties to the action, their officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”
Actual knowledge may be inferred. See Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 216-217 (1966) (union members’ actual knowledge of the injunctive order was properly inferred, where a copy of the order was posted at the site of union picketing, and the order was issued one month prior to the charged acts of contempt); DeKuyper v DeKuyper, 365 Mich 487 (1962) (where a bank was served with an injunctive order but not made a party to the underlying action, the bank’s actual knowledge of the order made it effective against the bank).
Courts have punished contemnors for violating injunctive orders by subterfuge or in bad faith. See Craig v Kelley, 311 Mich 167, 178 (1945), Gover v Malloska, 242 Mich 34, 36 (1928), and In re Contempt of Rapanos, 143 Mich App 483, 489-490 (1985).
H.Fiduciary’s Failure to Comply With Court Order
A fiduciary who fails to comply with a court order may be punished for contempt. See People v McCartney (On Remand), 141 Mich App 591, 596 (1985) (holding that a defendant can be punished for both the crime of embezzlement and criminal contempt without running afoul of the double jeopardy clause).
MCR 5.203 sets out the required procedures for addressing a fiduciary who is not properly administering an estate. These procedures do not preclude contempt proceedings. MCR 5.203(D).
I.Parties and Attorneys in Civil Cases Who Violate Discovery or Disclosure Orders
The general authority to hold a person in contempt for failure to follow a court order provided in MCL 600.1701(g) extends to the failure of any party or attorney who violates a discovery or disclosure5 order. See MCR 2.313(B).
MCR 2.313(A) outlines how a party may obtain an order compelling disclosure or discovery. MCR 2.313(B) provides sanctions for failure to comply with an order, including an order provide or permit discovery after a discovery order has been issued or an order compelling disclosure. That rule states, in pertinent part:
“(1) Sanctions by Court Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by a court in the county or district in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party, or a person designated . . . to testify on behalf of a party, fails to obey an order to provide or permit discovery, including an order entered under subrule (A) of this rule or under MCR 2.311, the court in which the action is pending may order such sanctions as are just, including, but not limited to the following:
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(d) in lieu of or in addition to the foregoing orders, an order treating as contempt of court the failure to obey an order, except an order to submit to a physical or mental examination[.]” MCR 2.313(B).
The sanctions provided by the predecessor to MCR 2.3136 were discussed in Richards v O’Boyle, 21 Mich App 607 (1970). The Court of Appeals stated that an attorney who did not comply with the rules for expeditious handling of discovery proceedings and who did not submit answers to the defendant’s interrogatories could be held in contempt. Id. at 611-612.
“[T]he information provided to the trial court was insufficient to warrant the issuance of an order to show cause for criminal contempt” where the defendants in a civil case moved to hold the plaintiffs in criminal contempt for their alleged violation of a discovery order because the “affidavit submitted was unexecuted and unsworn,” and even after it was executed, the affidavit was not based on the personal knowledge of the affiant and lacked information about exactly what was done to the data that was the basis of the alleged discovery order violation. Ferranti v Electrical Resources Co, 330 Mich App 439, 443, 446 (2019).
J.Refusal to Submit to Paternity Test
In Bowerman v MacDonald, 431 Mich 1, 23 (1988), the Michigan Supreme Court held that a putative father’s refusal to submit to court-ordered blood testing or tissue typing could be punished by contempt, although a default judgment could not be entered against the putative father. In response to Bowerman, the Legislature amended MCL 722.716 to allow for entry of a default judgment in such cases. See MCL 722.716(1)(a).
K.Violation Must Be of Lawful Order, Decree, or Process of the Court
The trial court committed legal error where it held a minor child in contempt for violation of a parenting time order that only applied to the child’s younger siblings. In re Gorcyca, 500 Mich 588, 618-619 (2017). While it was possible that the trial court could have held the minor child in contempt in regard to the parenting time order for his “persistent behavior of thwarting the parenting time between the younger children and their father,” that rationale was not clearly articulated at the contempt hearing. Id.