After the party seeking the contempt order establishes its prima facie case, the burden shifts to the alleged contemnor to establish a defense.38 As a general rule, defenses to contempt charges are limited to whether the court has jurisdiction over the person or subject matter of the proceeding, the facts of the alleged contempt and, in criminal cases, whether the alleged contemnor acted with intent. A defendant may not claim that the injunction or order giving rise to the contempt charge was issued erroneously.39 Where, however, there was no adequate or effective opportunity for appellate review of the challenged order and the order required an irrevocable and permanent surrender of a constitutional right, a defendant may attack the validity of the order in defending a contempt charge.40 A defendant can also challenge an order as being unconstitutionally vague in that it fails to give reasonable notice of the prohibited acts that form the basis for the contempt prosecution.41
In a civil contempt action, a defendant may not argue that he or she did not intend to violate the order, as intent is irrelevant.42 In a criminal contempt action, by contrast, there must have been intent to disobey the order.43 In either a civil or criminal contempt prosecution, a defendant may assert as a valid defense that it was impossible to obey the order, unless the inability to do so was the result of the defendant’s own act.44 The defendant has the burden of demonstrating inability to comply with the order.45
38. See State ex rel. Oberly v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 6, Allen, C. (Del. Ch. Oct. 31, 1991).
39. Mayer v. Mayer, 132 A.2d 617, 621 (Del. 1957); Rambo v. Fraczkowski, 350 A.2d 774, 775 (Del. Super. 1975).
40. Rambo v. Fraczkowski, 350 A.2d 774, 775 (Del. Super. 1975).
41. See Wilmington Federation of Teachers v. Howell, 374 A.2d 832, 836-37 (Del. 1977). See also Mother African Union First Colored Methodist Protestant Church v. Conference of African Union First Colored Methodist Protestant Church, C.A. No. 12055, slip op. at 20-21, Jacobs, V.C. (Del. Ch. Apr. 22, 1992).
42. Klein v. State, 36 Del. Ch. 311, 127 A.2d 84, 87 (Del. 1956); Division of Family Services v. A.B., 980 A.2d 145, 150 (Del. Fam. Ct. 2009); Mother African Union First Colored Methodist Protestant Church v. The Conference of African Union First Colored Methodist Protestant Church, C.A. No. 12055, slip op. at 14, Jacobs, V.C. (Del. Ch. Dec. 11, 1998) (though state of mind may be considered in determining the appropriate sanction); State Dept. of Services for Children, Youth & Their Families v. Cedars Academy, C.A. No. 1399-S, slip op. at 4 n.2, Allen, C. (Del. Ch. Oct. 20, 1989); State v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 8, Allen, C. (Del. Ch. Aug. 17, 1988).
43. Wisher v. State, Cr. A. No. N84-07-048FC, slip op. at 2, Gebelein, J. (Del. Super. Dec. 17, 1985) (ORDER).
44. See State ex rel. Oberly v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 6, Allen, C. (Del. Ch. Oct. 31, 1991); Brandyco Enterprises, Inc. v State, C.A. No. 84A-SE-23, slip op. at 2, Balick, J. (Del. Super. Feb. 24, 1986); Bonecutter v. Oberly, C.A. No. 91M-10-4, slip op. at 2-3, Gebelein, J. (Del. Super. Oct. 15, 1991); Wisher v State, Cr. A. No. N84-07-048FC, slip op. at 1, Gebelein, J. (Del. Super. Dec. 17, 1985) (ORDER).
45. Wisher v. State, Cr. A. No. N84-07-048FC, slip op. at 2, Gebelein, J. (Del. Super. Dec. 17, 1985) (ORDER).
© 2010 David L. Finger