No Support in Georgia Supreme Court for “Anticipatory Contempt”

In the last division of an opinion issued on Monday, Hardman v. Hardman, S14A1187, the Georgia Supreme Court agreed with the trial court that a parent in a child support case could not bring an action for contempt “in ‘anticipation'” of the other parent’s violation of the divorce decree. Slip op. at 15. The father sought contempt based in part on the mother’s threat to move their children to a public school, in alleged violation of the decree. The trial court awarded the mother attorney’s fees under OCGA § 9-15-14. The Supreme Court found the award of fees could be appropriate to the extent based on the threat:

[T]he court properly held that Father’s claim was made in ‘anticipation’ of Mother’s contempt, since she had not actually changed the children’s school and thus had not even arguably violated the divorce decree in that respect. Father cited no law in the trial court, and has cited none here, allowing an ‘anticipatory contempt’ claim. Concern that a counter-party may improperly be asserting rights under an agreement should be addressed, if at all, in an action for declaratory judgment rather than contempt.

Slip op. at 15.

There does not appear to be any previous reported Georgia decision using the phrase “anticipatory contempt.” In other jurisdictions, however, there are several dozen cases considering and rejecting the argument that contempt could be found prior to an actual violation. In United States v. Bryan, 339 U.S. 323, 341 (1950) (where the issue was not squarely presented), the U.S. Supreme Court stated, “There is, in our jurisprudence, no doctrine of ‘anticipatory contempt.'” And in United States v. Johnson, 736 F.2d 358 (6th Cir. 1984), the Sixth Circuit analyzed the issue in depth and “found no case in which anticipatory contempt has been practiced or approved,” id. at 360, noting, “[o]ne of the most fundamental principles of the law of contempt is that a court must exercise only the least possible power adequate to the end proposed.” Id. at 362 (citation and quotation marks omitted).

As the Arizona Court of Appeals more recently put it:

Two rationales underlie these cases. First, because intentions can change before an actual violation of an order, whether a party acts in contempt of an order is not ripe for review until the order is actually violated. Second, permitting the court to find contempt based solely on a party’s expressed intention to defy an order in the future is unnecessary because contempt proceedings at the time of an actual violation would suffice to achieve the proper ends of a contempt judgment. 

BMO Harris Bank Nat’l Ass’n v. Bluff, 277 P.3d 216, 219 (Ariz. App. 2012) (citation omitted).