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Invocation of Fifth Amendment - Contempt Sanctions

Willis v. Willis, [Ms. 2190241, Dec. 18, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Donaldson, J.; Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur) affirms the Madison Circuit Court’s rejection of the mother’s invocation of the Fifth Amendment in a contempt proceeding and remands for an express finding of the number of instances of criminal contempt. The court explains that “[t]his is a civil case in which the mother was facing both civil – and criminal – contempt allegations; it is not a ‘criminal prosecution’ as that term is commonly understood.’ [State ex rel. Payne v. Empire Life Insurance Co., 351 So. 2d 538, 542 (Ala. 1977)]. We are not directed to Alabama authority recognizing a witness’s right to assert the Fifth Amendment privilege against self-incrimination in civil proceedings unless there is evidence that the witness anticipates that criminal prosecution could result from his or her testimony.” Ms. *19.

The circuit court found the mother in both civil and criminal contempt and ordered her imprisoned for 104 days and to pay the father’s attorney fees of a little over $11,000. Ms. **23-24. In view of §12-11-30(5), Ala. Code 1975, which limits sanctions for a single instance of criminal contempt to 5 days of incarceration and a $100 fine, the court “reverse[s] this portion of the trial court’s judgment and remand(s) the cause for the trial court to specify the number of instances of criminal contempt it found and the corresponding period of incarceration imposed for each finding of criminal contempt.” Ms. *28.

The court affirms the award of attorney fees and explains

The trial court found the mother to be in civil contempt, and the record would support a finding that the mother’s actions caused the father to seek the assistance of the trial court for more than two years in an effort to accomplish his goal, i.e., the cessation and removal of derogatory remarks and Facebook posts that were harmful and embarrassing to him and to the child. Under these circumstances, we conclude that the trial court did not exceed its discretion in ordering the mother to pay attorney fees to the father’s counsel as a result of the mother’s civil contempt.

Ms. **29-30.

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