I filed for a contempt on my ex-wife for blocking visitation. I had a previous OSC and Affidavit re: contempt dismissed due to the judges feeling that the allegations were in sufficiently pled. My second contempt did not have the previous application for relief box checked and the defense counsel filed a motion to dismiss based on this. It is my position that the dismissed application was deemed invalid on its face by the order of dismissal and therefore does not legally constitute a previous application ( I.e. no determination on the merits). Is there authority that supports this position?
Family Law Attorney
The failure to check the box as to a previous application is harmless error if the previous application was dismissed. The logic for the checking of that box is to determine if there have been other convictions for contempt. I do not know of any case law on point.
Technically if the contempt is dismissed prior to the first witness being sworn in then double jeopardy has not attached. You could even agree to dismiss the case without prejudice and then refile using the same incidents. You can use incidents up to two years old at the time of the filing.
Contempt actions are very technical and you should discuss the matter with a family law attorney that does contempt cases.
1 lawyer agrees
Contempt actions are very complicated and detailed. You would likely benefit from seeking consultation from an attorney, even if you want to represent yourself at the hearing, to make sure you have properly filled out the forms and done what is necessary to succeed in your contempt.
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