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Court of Appeals reverses finding of contempt, finding Mother’s non-compliance not willful

The October 30, 2013 Court of Appeals opinion in Ward v. Washington, 406 S.C. 249, 750 S.E.2d 105 (Ct. App. 2013), reversed a finding of contempt despite Mother’s non-compliance in denying Father Labor Day visitation because it found Mother’s non-compliance wasn’t willful.

In 2009 the parties reached an agreement that modified Father’s visitation from a 2007 divorce decree.  The operative language in the parties’ new custody order was as follows:

In lieu of his every-other-weekend visitation, Easter, Memorial Day and Labor Day visitation during the school year, Father shall be allowed to select one weekend in August and December, two weekends in September, October, January, February and May, three weekends total in March and April in odd numbered years and four weekends total in March and April in even numbered years, two weekends in November in even numbered years and one weekend in November in odd numbered years. Father shall select these weekends in writing by the 15th of the previous month, and shall not be allowed to select weekends that conflict with Mother’s Spring Break, Thanksgiving or Christmas visitation. Father shall not select Mother’s day weekend for his May visitation. Mother shall provide Father the children’s school schedule as soon as she receives it. Father shall then select the weekends he wants.

In 2010 Father selected Labor Day weekend as one of his September weekends and visitation went forward without any issue.  In 2011 he again attempted to select Labor Day weekend.  This time Mother balked, claiming the new order did not allow him to select that weekend.  After being denied Labor Day weekend, Father filed a rule to show cause against Mother.  At the hearing, Mother admitted she denied Father’s request for Labor Day 2011 visitation, however she denied she willfully violated the 2009 order. Mother claimed Father, by agreeing to the terms “[i]n lieu of his . . . Labor Day visitation,” forfeited his right to Labor Day visitation with the children.  The family court disagreed, held Mother in civil and criminal contempt, and ordered her to pay some of Father’s attorney’s fees

Mother subsequently filed a motion to reconsider. The family court denied Mother’s motion, noting the parties opted out of traditional visitation and “[n]othing in the [2009] Order specifically prohibits [Father] from selecting Memorial Day or Labor Day as part of his weekend visitations.” The family court noted that while it understood Mother’s interpretation of the 2009 order, it read the order more broadly and looked at the totality of the circumstances. The family court found it “troubling” that Mother “cited a variety of different reasons” in emails to Father as to why Father should not have Labor Day visitation, but indicated in her testimony that the real reason she wanted the children that weekend was that she had planned a birthday party for several family members.  Mother appealed.

The Court of Appeals affirmed the family court’s finding that Father was entitled to select Labor Day weekend as one of his September weekends:

[A]lthough the visitation schedule in the 2009 order is non-traditional and the language of the order is somewhat vague, we find the order did not prohibit Father from selecting Labor Day visitation with the children. We read the “in lieu of” language in the order as stating that instead of Father having a traditional visitation schedule of every other weekend, Easter, Memorial Day and Labor Day, he is allowed to choose his weekends within the limits provided in the order. The order outlines specific instructions regarding all of the major holidays, but does not address Labor Day outside of the “in lieu of” language. We agree with the family court’s finding that nothing in the 2009 order prevents Father from selecting Labor Day weekend as one of his two September visitation weekends. Therefore, the family court did not err in finding Father properly selected Labor Day 2011 as one of his allotted September visitation weekends in accordance with the 2009 order.

However the Court of Appeals reversed the finding of contempt, finding that Mother’s non-compliance was not willful:

 [W]e find the family court did err in finding Mother in contempt for violating the 2009 order. The evidence in the record does not support a finding that Mother willfully violated the order. Mother testified she believed the order clearly prohibited Father from selecting Labor Day visitation and she was in compliance with the order in denying Father’s Labor Day request. She also testified she relied on the advice of her counsel who agreed with her view of the language of the order. Furthermore, the family court’s statement that it “understands [Mother]’s interpretation of the Order” is evidence that Mother could have reasonably misinterpreted the order and her actions were not willful. Accordingly, we reverse the family court’s determination that Mother willfully violated the 2009 order.

I am actually the attorney who drafted the language in the parties’ agreement that the Court of Appeals found “non-traditional” and “somewhat vague.”  While no one asked me, I certainly believe Father was entitled to select Labor Day weekend, as the “in lieu of” language meant that the new visitation agreement was merely replacing his previously unfettered right to Labor Day weekend.  Further the new agreement restricted Father’s right to select Mother’s day weekend, so the parties clearly knew how to place limits on Father’s right to select specific weekends for visitation.  Given the myriad excuses Mother made for denying Father visitation I am surprised the Court of Appeals found her non-compliance wasn’t willful.

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