Members of the family court bar should thank pro se litigant Brian DiMarco for taking his appeal all the way to the South Carolina Supreme Court to fight a $250.00 fine. The Supreme Court’s August 1, 2011 opinion in DiMarco v. DiMarco, 393 S.C. 604, 713 S.E.2d 631 (2011), provides excellent guidance on the distinction between criminal and civil contempt and the sanctions that can be applied to each.
DiMarco stems from the fallout of Mr. DiMarco’s child support reduction action. In 2008 DiMarco obtained a child support reduction but he was required to pay through the court. He claims he attempted to make his first payment to the court, but the court lacked record of the order and could not accept the payment. This assertion isn’t implausible because the clerk’s office won’t take payments until there is a filed court order.
In May 2008, the clerk’s office filed a rule to show cause due his to unpaid child support, setting the hearing for June 2008. Prior to the hearing, DiMarco came into compliance with the child support order but then failed to appear at the hearing, resulting in a bench warrant issuing for his arrest. He appeared in court later that day. The presiding judge noted his child support was current but held him in civil contempt, sentencing him to twelve months in jail, suspended upon payment of $250 in court costs. After the Court of Appeals affirmed the family court, DiMarco sought and obtained certiorari in the Supreme Court.
The Supreme Court reversed the family court’s sanction as interpreted by the Court of Appeals, noting that sanction violated DiMarco’s Sixth Amendment right to a jury trial. The Supreme Court noted:
We disagree with the court of appeals that the ordered sanction had elements of both civil and criminal contempt. A sanction is either civil or criminal; it cannot be both because they serve different purposes. A judge certainly may order both a civil and a criminal contempt sanction, and, in that case, the sanctions should be separate and distinct. That is not what the family court judge did in this case. The ordered sanction was purely punitive in nature as Petitioner was in full compliance with the support order and there was no necessary act to be compelled through the contempt sanction.
The Supreme Court’s language is instructive. Civil contempt sanctions cannot be imposed if a party is already in compliance. Because DiMarco was in compliance of his child support obligation at the time of the rule to show cause it was inappropriate for the family court to impose civil contempt sanctions.
This did not, however, prevent the family court from imposing criminal contempt sanctions due to DiMarco’s failure to appear at court on time. However, in imposing a potential sentence of greater than six months, the family court violated DiMarco’s Sixth Amendment right to a jury trial. See, Curlee v. Howle, 277 S.C. 377, 385, 287 S.E.2d 915, 919 (1982) (A contemnor has a constitutional right to a jury trial before a criminal sentence of more than six months incarceration may be imposed). As the Supreme Court held:
The $250.00 in court costs, ostensibly for appearing late to the first Rule to Show Cause hearing that day, was an allowable criminal contempt sanction because it punished Petitioner for his tardiness and lack of respect for the court. The fine itself, in that regard, is unobjectionable. However, ordering a definite twelve month incarceration if Petitioner failed to pay the court costs on time violates Petitioner’s right to a jury trial.
Since DiMarco was not allowed a jury trial, nor was he allowed to have his attorney present, the Supreme Court vacated his sanction.
I have seen many family court litigants held in civil contempt despite having come into compliance before the rule to show cause hearing. Sometimes, I’ve even seen litigants held in civil contempt despite having come into compliance before the rule was filed. DiMarco should stop future occurrences of civil contempt sanctions against a party already in compliance.