Material for Charleston School of Law CLE–June 2008

Though it may occasionally surprise our clients, family court orders are not self-enforcing. Even support orders handled by the family court’s bookkeeping clerks will sometimes benefit from the use of private counsel to be enforced. Knowing how to enforce family court orders (or defend enforcement of these orders) is a skill every family court practitioner must master.

Civil Contempt Sanctions

Orders are typically enforced through a mechanism called a Rule to Show Cause (hereinafter “rule”) in which one party seeks civil contempt sanctions for the other party’s willful violation of a court order. The civil contempt sanctions in the family court’s arsenal are powerful:

An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court, or who violates any provision of this title, may be proceeded against for contempt of court. An adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them. An adult sentenced to a term of imprisonment under this section may earn good time credits pursuant to Section 24-13-210 and work credits pursuant to Section 24-13-230 and may participate in a work/punishment program pursuant to Section 24-13-910 unless his participation in any of these programs is prohibited by order of the sentencing judge.

S.C. Code Ann. § 63-3-620.

A civil contempt finding is purgeable: that is once a violating party comes into compliance the sanction is lifted. In civil contempt cases, the sanctions are conditioned on compliance with the court’s order. The conditional nature of the punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by doing what he had previously refused to do. If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court’s order…. Those who are imprisoned until they obey the order, carry the keys of their prison in their own pockets. If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court’s order.

Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754, 761 (Ct.App. 2007).

In addition to contempt sanctions, the party proving the other party’s contempt is entitled to attorney’s fees and costs for documenting the contempt under the theory of “compensatory contempt.”

Courts, by exercising their contempt power, can award attorney’s fees under a compensatory contempt theory. Compensatory contempt seeks to reimburse the party for the costs it incurs in forcing the non-complying party to obey the court’s orders. In a civil contempt proceeding, a contemnor may be required to reimburse a complainant for the costs he incurred in enforcing the court’s prior order, including reasonable attorney’s fees. The award of attorney’s fees is not a punishment but an indemnification to the party who instituted the contempt proceeding. … The court is not required to provide the contemnor with an opportunity to purge himself of these attorney’s fees in order to hold him in civil contempt. The award of attorney’s fees is not part of the punishment; instead, this award is made to indemnify the party for expenses incurred in seeking enforcement of the court’s order.

Abate v. Abate, 377 S.C. 548, 660 S.E.2d 515, 520, n. 4 (Ct. App. 2008) (citations omitted).

Elements of Civil Contempt Proof

Because civil contempt carries serious sanctions, there are numerous procedural protections afforded a party who has allegedly violated a contempt order. “Contempt results from a willful disobedience of a court order.” Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct.App. 1997). Willful disobedience requires an act to be “done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” Spartanburg Co. Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988). A party seeking a contempt finding for violation of a court order must show the order’s existence and facts establishing the other party did not comply with the order. Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct. App. 2004). “The language of the commands must be clear and certain rather than implied” in order to support a finding of contempt for violation of a court order. Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973). “In order to sustain a finding of contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based.” Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877, 881 (Ct. App. 1992). Where the moving party’s actions frustrate the other parties’ compliance with the order, the other party should not be held in contempt. Abate, supra, 660 S.E.2d at 518 (where mother prevented father from determining identity of child’s physicians, it was abuse of discretion to hold father in contempt for failing to consult with child’s psychiatrist before giving child drug holiday).

“Charges of constructive contempt^[1]are brought by a rule to show cause which must be based upon an affidavit or verified petition. The failure to support the rule to show cause by an affidavit or verified petition is a fatal defect.” Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611, 617 (1994) (citations omitted). “In a proceeding for contempt for violation of a court order, the moving party must show the existence of the order and the facts establishing the respondent’s noncompliance.” Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130, 131 (1986). “Due process requires that a litigant be placed on notice of the issues which the court is to consider.” Bass v. Bass, 272 S.C. 177, 249 S.E.2d 905, 906 (1978). Thus, any verified complaint or affidavit in support of the rule should plead the existence of the court order and the facts establishing non-compliance.

When requested by either party a rule must proceed via testimony. See, e.g., Elvis v. Elvis, 272 S.C. 413, 252 S.E.2d 142, 143 (1979) (without agreement or testimony on the issues, court erred in granting relief on rule). Do not make the mistake of attempting to prove your client’s case via affidavits. Because live testimony is required for rules, make sure the rule is set for enough time to handle the matter. Few things anger judges more than too little time being set for a hearing (thus backing up their dockets).

“Once the movant makes a prima facie showing by pleading an order and demonstrating noncompliance, the burden shifts to the respondent to establish his defense and inability to comply.” Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989); see also Lindsay, supra, 491 S.E.2d at 588 (“[T]he moving party must show the existence of a court order and the facts establishing the respondent’s noncompliance with the order”). In Eaddy v. Oliver, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct.App.2001), a father brought a rule for violation of a visitation order. After father presented a prima facie case, mother presented no evidence or testimony. Because father had made a prima facie case and mother presented no evidence, the Court of Appeals found that the family court had erred in failing to find mother in contempt.

“Civil contempt must be proved by clear and convincing evidence.” Miller, supra, 652 S.E.2d at 761. Finally, a finding of contempt does not require the imposition of sanctions. “Although the Family Court is empowered to find and punish for contempt, there is no requirement that sanctions be imposed upon a finding of contempt. … A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support.” Sutton v. Sutton, 291 S.C. 401, 353 S.E.2d 884, 889 (Ct.App. 1987) (citations omitted).

Because proving civil contempt requires proving a violation of a court order, proving the Defendant’s^[2] violation was “willful,” and proving the elements by “clear and convincing evidence,” one should not reflexively file a rule in any ccumstance in which a court order is being violated. In circumstances in which the Plaintiff wants the order enforced but cannot prove a willful violation, a motion to enforce the order is more likely to achieve the desired goal. Motions for supplemental proceedings to enforce or interpret a final order are the proper method of enforcing a final order where the non compliance may be excusable or the order lacks sufficient clarity to find a party in contempt. Supplemental proceedings also allow for discovery if requested. See Rule 69, SCRCP.

Further there are often circumstances in which the Plaintiff is required to undertake an action before the Defendant is required to undertake an action. A common example are orders requiring a custodial parent to present the child’s unreimbursed medical bills to the other parent and then giving the non-custodial parent a set time to pay his share of the bill. If these bills have not been presented to the Defendant a rule is improper, even if the bills have not been paid (and even if the Defendant is aware of the bill). Rather the Plaintiff needs to comply with the order (by supplying the Defendant the medical bills) and then provide the Defendant the proper time to pay before seeking enforcement.

Finally, there may be circumstances in which the Defendant did not have notice of the order being enforced. Service of the order upon the Defendant’s attorney is sufficient to prove notice. See e.g., Koutsogiannis v. BB & T, 365 S.C. 145, 616 S.E.2d 425, 428 (2005) (in the attorney-client relationship, clients are generally bound by their attorneys’ acts or omissions during the course of the legal representation that fall within the apparent scope of their attorneys’ authority). Other times notice can be proven by the Defendant’s course of conduct, such as when the Defendant undertakes actions indicating a knowledge of the order. However, when it is unclear that the Defendant ever received notice of the order make sure the order is served and wait for a subsequent violation before attempting to enforce the order.^[3]

South Carolina law is unclear whether an oral ruling from the bench can be enforced via the court’s contempt powers before it is filed as a court order. “[P]ersons who, knowing of oral decisions, violate their provisions, may be held liable for contempt, although the decision has not yet been formulated into an order or writ.” 17 Am Jur 2d Contempt §131, p. 488. However, in Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643, 646 (2006) (citations omitted), our Supreme Court held:

An order is not final until it is entered by the clerk of court; and until the order or judgment is entered by the clerk of the court, the judge retains control of the case. However, the moment the order is filed by the clerk of court, it becomes the judgment of the court, and fixes the rights of the parties. Stated otherwise, the effective date of an order is not when it is signed by the judge, but when it is entered by the clerk of court.

See also, Metts v. Mims, 370 S.C. 529, 635 S.E.2d 640, 642 (Ct. App. 2006) (“Until an order is written and entered by the clerk of court, the judge retains discretion to change his mind and amend his ruling accordingly. Therefore, the oral ruling from the bench was not binding upon the parties”). Since Upchurch holds that a court order does not fix the parties’ rights until filed with the clerk of court, the safest procedure is to wait until the ruling is made a filed court order before trying to enforce it.^[4]

Additional Goals (other than Enforcement)

In prosecuting a rule, a Plaintiff may have legitimate goals in addition to enforcement of the court order. Those additional goals create strategic considerations on the timing of when the rule will be heard, whether a new action should be filed, the type of contempt sought, and where the rule should be filed.

For example, Defendants frequently live in a different state than where the order was issued. In enforcing a South Carolina support, visitation or custody order against an out-of-state Defendant, it may be advisable to register the order (for enforcement purposes only) in the Defendant’s state of residence and enforce the order there. The alternative is to file the rule in South Carolina, obtain service over the out-of-state Defendant, and then hope the Defendant actually appears in court. If the Defendant is properly served but fails to show up for the rule hearing, the court will issue a bench warrant for the Defendant’s arrest but, since the Defendant lives out-of-state, that bench warrant will have little effect until the Defendant returns to South Carolina.^[5]

On the other hand, sometimes the Plaintiff wants to make the Defendant a fugitive from South Carolina. Certainly, final hearings are much easier when the Defendant cannot appear. When there is ongoing domestic litigation, filing a rule against an out-of-state Defendant when there is reason to believe the Defendant will fail to appear frequently leads to the Defendant being made a fugitive at the time of trial (when the Defendant fails to show up for the rule hearing). After a final order is issued in the underlying domestic litigation, the order(s) can then be registered for enforcement in the Defendant’s state of residence.

Sometimes, a rule can be used to encourage settlement or modification of an existing final order. I frequently use civil contempt proceedings to apply pressure to resolve the underlying litigation or to get a party to agree to modify a final custody or visitation order. Often it is the only way to get opposing parties to think realistically about their situation. While “[a] lawyer shall not present, participate in presenting, or threaten to present criminal or professional disciplinary charges solely to obtain an advantage in a civil matter” [Rule 407, SCACR, South Carolina Rules of Professional Conduct, Rule 4.5], this prohibition does not apply to threatening civil contempt.^[6] Seeking civil contempt before a final hearing and then negotiating to waive the contempt claim in return for resolution of the underlying case (or using the threat of civil contempt to negotiate a modification of custody or visitation) has resolved many a family court case.

Other times, a finding of civil contempt is desired to prevail on contested issues as part of the underlying litigation. Especially in custody or visitation cases, the judge at the final hearing should be the judge considering a parent’s violation of custody, visitation or child-related restraints in fashioning an appropriate final resolution of these issues. Setting a rule to be heard before trial (rather than at the time of trial) means that a different court and different court order will result from the civil contempt proceeding and from trial. The better strategy is to set such rules for the final hearing.

Where a final order has issued, civil contempt may be used to support a modification of that final order in a new action. While “child custody is not granted to a party as reward or withheld as punishment” [Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 788 (Ct.App. 2004)], “the conduct, attributes, and fitness of the parents” are proper considerations in deciding custody. Patel v. Patel, 347 S.C. 281,555 S.E.2d 386, 388 (2001). Violations of court orders involving visitation or that expose the child to dangerous or immoral conduct are clearly relevant on the issue of custody.

There is some (weak) authority for the proposition that custody can be changed as part of a rule. See, e.g., Pinckney v. Hudson, 294 S.C. 332, 364 S.E.2d 462 (1988); Jones v. Ard, 265 S.C. 423, 219 S.E.2d 358, 359 (1975). However, when one is attempting to change custody based on a parent’s violation of a custody order, the more proper procedure is to file a new action for modification and have the rule in the old action set at the same time as a motion for temporary relief in the new action. That way the same judge considering the rule can consider the request for a pendente lite modification and can use information obtained during the rule hearing in deciding upon the pendente lite request.

Finally, there may be times when the Plaintiff desires to punish the Defendant for violations of the court order. In such cases, counsel must seek criminal as well as civil contempt findings. Unlike civil contempt, criminal contempt findings will result in sanctions that cannot be purged.

Requests for criminal contempt sanctions most frequently occur when the nature of the contempt is repeated and cannot be adequately remedied through civil contempt sanctions. For example, a Defendant might have been found in civil contempt and provided a suspended sentence conditioned on future compliance with the court order. The only adequate remedy for subsequent violations of the violated provision of that court order is criminal contempt. This is especially true when the Defendant’s violation of the court order cannot be remedied through mere payment of money (as with violations of child or spousal support orders) but involves interference in the other parent’s relationship with the child or repeated violations of safety issues or moral restraints involving the child.

The primary purposes of criminal contempt are to preserve the court’s authority and to punish for disobedience of its orders. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. An unconditional penalty is criminal in nature because it is solely and exclusively punitive in nature. The relief cannot undo or remedy what has been done nor afford any compensation and the contemnor cannot shorten the term by promising not to repeat his offense. If the relief provided is a sentence of imprisonment, it is punitive if the sentence is limited to imprisonment for a definite period. If the sanction is a fine, it is punitive when it is paid to the court. However, a fine that is payable to the court may be remedial when the contemnor can avoid paying the fine simply by performing the affirmative act required by the court’s order.

Miller, supra 652 S.E.2d at 761.

The distinction between civil and criminal contempt is critical, because criminal contempt triggers additional constitutional safeguards. In a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt. Prosecutions for serious criminal contempts are subject to the jury trial protections of the Sixth Amendment. Criminal defendants sentenced to imprisonment of more than six (6) months are entitled to a jury trial. Id at 761-62. ^[7] Any criminal charge that might lead to incarceration gives an indigent the right to court-appointed counsel. Alabama v. Shelton, 535 U.S. 654 (2002).

Proper Pleading

A good method of drafting the verified complaint or affidavit in support of a rule is to attach the specific order allegedly violated, and specifically reference the language of that order in alleging the violations. For example:

· The January 29, 2008 temporary order in this case prohibits the parties from “exposing the minor child to paramours overnight.” See January 29, 2008 order attached as Exhibit A, p. 2, ¶6.

· On March 12, 2008, the Defendant allowed his current paramour to spend the night in his home while the minor child was present.

· The Defendant’s actions are in violation of the above provision of the court’s January 29, 2008 order.

· The Defendant should be held in contempt for his violation(s) of the court’s January 29, 2008 order, be sanctioned for his contempt, and be made to pay Plaintiff’s reasonable attorney’s fees and costs.

If the contempt is going to be proven through documents, it is best to include those documents as exhibits to the affidavit or verified complaint. For example when seeking reimbursement for the children’s unreimbursed medical bills and the order requires reimbursement within thirty days of receipt of the bill, include the correspondence enclosing the bills and the bills as exhibits to the affidavit or verified complaint. For example:

· The January 29, 2008 temporary order in this case requires “the Defendant to reimburse the Plaintiff 50% of the minor children’s unreimbursed medical bills within thirty days of receipt.” See January 29, 2008 order attached as Exhibit A, p. 3, ¶6.

· On March 12, 2008, the Plaintiff mailed the Defendant unreimbursed medical bills for the minor children totaling $348.00. A copy of this correspondence is attached hereto as Exhibit B and copies of the medical bills enclosed are attached as Exhibit C.

· As of June 10, 2008, the Defendant has not reimbursed the Plaintiff any of these bills.

· The Defendant’s actions are in violation of the above provision of the court’s January 29, 2008 order.

· The Defendant should be held in contempt for his violation(s) of the court’s January 29, 2008 order, be sanctioned for his contempt, be made to immediately reimburse the Plaintiff $174.00 for his portion of the minor children’s unreimbursed medical bills, and be made to pay Plaintiff’s reasonable attorney’s fees and costs.

Where your client is basing a contempt claim upon information that other witnesses will provide at the hearing, use a verified complaint^[8] to support the rule, as a verified complaint allows the client to make allegations “upon information and belief.” Where your client has complete knowledge of all allegations supporting the requested finding(s) of contempt, an affidavit should suffice.

How to Serve a Rule

Service of a rule cannot be done in the same manner as serving a summons and complaint. This is because the rules for service of a summons (listed in Rule 4(d), SCRCP) are not the same as the rules for service of other items (listed in Rule 4(c), SCRCP). For example, service via certified mail or private process server or upon an adult household member may not be good service for a rule. Rule 4(c), which describes these service rules, reads as follows:

By Whom Served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.

Rule 4(c), SCRCP.

Since a rule is not a summons, a strict reading of Rule 4(c), indicates that, unless the court orders otherwise, service needs to be done by sheriff or his deputy or any other duly constituted law enforcement officer. However, Rule 4(c) explicitly allows the court to designate other persons for service. One should draft the rule to allow for service as provided in Rule 4(d), SCRCP.

A sample rule to show cause form is below. Note that this form specifically allows that “This order and rule to show cause can be served on the above person by any means allowable under SCRCP 4(d),” thus allowing for service via certified restricted-delivery mail, by private process servers or upon suitable household members. Note also that it includes my name, address and telephone number. Often the identity of the attorney bringing the rule will not be apparent from the rule itself, especially if the case has resulted in a final order. By providing this information, you allow the other party or that party’s attorney to contact you in order to negotiate a resolution to the rule prior to the hearing.

TO:__________________________ ,

Based upon the attached affidavit, it appears that you have not obeyed certain court Order(s), as described in the affidavit. Therefore,

IT IS ORDERED THAT YOU APPEAR BEFORE THE Family Court for Charleston County on the _______day of_________ , 200__ at __o’clock __.m., in Courtroom ___, then and there to be prepared to show cause, if any, why the relief requested in the affidavit should not be granted and why you should not be held in contempt of court for such disobedience. This order and rule to show cause can be served on the above person by any person allowable under S.C.R.C.P. 4(d).

________________________________

PRESIDING JUDGE, FAMILY COURT

NINTH JUDICIAL CIRCUIT

at Charleston, South Carolina

this ____ day of________ , 201__.

Gregory S. Forman, Esquire

Attorney for

171 Church Street, Suite 160

Charleston, SC 29401

(843) 720-3749

Raising Defenses/Filing Returns

There is no specific procedural rule referencing a “return” to a rule. However, in my experience, the court has sometimes denied a defending party’s right to claim fees when no return seeking fees has been filed. There are also numerous affirmative defenses that can be raised in a rule. However, affirmative defenses must be plead to be raised. See Rule 8(c), SCRCP. I have successfully prevented testimony on affirmative defenses to a rule when the defending party failed to file a return. If seeking fees in defense of a rule or seeking to raise an affirmative defense, one should file a return.^[9] The most common affirmative defenses to rules are lack of notice (described above), lack of willfulness^[10], lack of due process, unclean hands, laches and equitable estoppel.

The lack of due process defense has two distinct aspects. The first aspect is insufficient time to prepare. There is no requirement that a rule be served a set time prior to proceeding with the hearing. However, notice that provides a party insufficient time to prepare is a denial of due process. In State v. King, 306 S.C. 335, 412 S.E.2d 375 (1991), the Supreme Court reversed a finding of contempt where the party had only one hour notice. How much notice is required depends upon the circumstances. Often records will need to be obtained to defend a rule and time will be needed to obtain (and perhaps subpoena) these records. If the Defendant can show good reason to be provided more time to prepare the defense, a due process defense should probably be raised.

Due process should also be raised when the verified complaint or affidavit is insufficient to put the Defendant on notice of what he is required to defend. A rule that simply alleges the Defendant did not pay his share of some unreimbursed medical bills (without noting the bills for which the Plaintiff seeks reimbursement) or alleges that the Defendant disparaged the Plaintiff to the children (without noting when or how) fails to provide the Defendant sufficient notice of what he is required to defend.

“The doctrine of ‘unclean hands’ precludes a plaintiff from recovering in equity if he acted unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.” Wilson v. Landstrom, 281 S.C. 260, 315 S.E.2d 130, 134 (Ct.App. 1984). “[O]ne who comes to the court seeking equity must come with clean hands. ‘He who comes into equity must come with clean hands. It is far more than a mere banality. It is a self-imposed ordinance that closes the door of the court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.’” Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598, 605 (Ct.App. 2004) citing Precision Instrument Mfg. Co. v. Automotive Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed.1381 (1945).

Again there are two aspects to the “unclean hands” defense. The first aspect is where the Plaintiff’s own behavior has prevented the Defendant from complying with the court order. See e.g., Ingram v. Kasey’s Associates, 340 S.C. 98, 531 S.E.2d 287, 291-92 (2000) (tenant’s misleading promise not to exercise an option to purchase the property and his improper ulterior motive to force the subtenant to pay $40,000 estopped the tenant from seeking specific performance of the option). The second is where the Plaintiff seeks a contempt finding on an issue in which he or she has engaged in the same (or worse) behavior regarding the subject matter at issue.^[11]

Laches and equitable estoppel defenses are similar and most often used to defeat enforcement of financial obligations. Laches seeks to void past non-compliance with the order due to one party’s failure to timely enforce the order to the prejudice of the other. Equitable estoppel voids all enforcement of the order because the parties have engaged in a course of conduct that would make enforcement of the order inequitable.

Laches asks the court not to enforce previous violations of an order on the basis that the party seeking enforcement rested on his or her rights to the detriment of the allegedly contemptuous party. The elements of laches are (1) delay, (2) unreasonable delay, and (3) prejudice. Emery, supra, 603 S.E.2d at 602. Further information on the laches defense can be found on my web site at .

In South Carolina, the essential elements of estoppel are divided between the estopped party and the party claiming estoppel. As to the party being estopped, the elements are: 1) conduct which amounts to a false representation, or conduct calculated to convey the impression that the facts are otherwise; 2) the intention that such conduct shall be acted upon by the other party; and 3) knowledge of the true facts. In order to claim estoppel, the claiming party must show: 1) a lack of knowledge and the means of knowledge of truth as to facts in question; 2) justifiable reliance upon the conduct of the party estopped; and 3) prejudicial change in the position of the party claiming estoppel. Kelley v. Kelley, 368 S.C. 602, 629 S.E.2d 388, 392 (Ct. App. 2006).^[12]

Conclusion

I once prosecuted a rule in which my client was attempting to enforce a provision of her divorce decree requiring her ex-husband to pay her $200,000.00 as her share of his now-defunct partnership. The court order she sought to enforce stated that there was “no set timeframe requirement” on the payment; rather her ex-husband was “permitted to do so at such time as he is able to do so.” Fifteen minutes into the hearing the judge motioned me and opposing counsel to the bench and informed us that he saw no way that the opposing party could ever be held in contempt on this issue. The unspoken hint was that my client might wish to dismiss this portion of the rule before her ex-husband incurred further fees in its defense for which she might be liable.

My client and I had anticipated this concern. We had spent months before filing the rule obtaining financial information on her ex-husband. We had gathered up public records of real estate and vehicle purchases. We had subpoenaed records showing her ex-husband’s expensive vacations to the Carribean and Europe. Prior to filing the rule we had offered her ex-husband a payment plan on the obligation. We were prepared to establish that he “was able to so.”

After showing the court that her ex-husband had sold real estate netting over $1.6 million in equity since the divorce and lived an otherwise lavish lifestyle, we convinced the court that her ex-husband had been able to pay the $200,000.00 but had simply refused to do so. He was found in civil contempt, ordered to pay the $200,000.00 within sixty days and ordered to reimburse my client the bulk of her fees and costs. The point is that even a vague provision of an order can be enforced so long as thought and preparation are given as to how willful non-compliance will be established.

Family court orders do not self-enforce. The ability to enforce (or defend enforcement of) family court orders is as vital a part of a domestic attorney’s practice as the ability to obtain beneficial results in the underlying litigation (i.e., getting good final orders).

Think before seeking enforcement of court orders. Carefully read the order your client seeks to enforce. If your client is required to undertake certain acts before enforcing the order, make sure you can prove those acts are undertaken (if necessary, have your client forgo the rule until these acts are undertaken). Think about what the actual violation is and make sure it is properly and clearly pled. How are you going to prove willfulness?^[13]

If you have no answer, do not file a rule. Are there affirmative defenses that are likely to be raised? Think about how you will defeat them. If a potential affirmative defense appears strong, consider negotiating a resolution before seeking contempt sanctions.

Think about what your client hopes to achieve by filing the rule. These goals will determine whether the rule should be filed in South Carolina or where the Defendant lives. These goals will determine whether a new action should be filed and whether the rule should be heard as soon as possible or reserved for the merits hearing. Finally, these goals will determine whether criminal contempt sanctions should be pursued.

_____________________________________

[1]“Constructive contempt” is contempt occurring outside of the presence of the court. There is also “direct contempt” which is contempt occurring in the court’s presence. Violation of a family court order is “constructive contempt.” This is the type of contempt family court attorneys will prosecute. This material does not deal with prosecuting or defending direct contempt and different procedural rules apply.

[2]For ease, this material will refer to the alleged contemnor as “Defendant” and the prosecuting party as “Plaintiff.”

[3]Unless otherwise directed by the court, service of orders can be done by regular mail to the Defendant’s last known address. Rule 5(a & b), SCRCP. If the Defendant has no last known address, service of the order can be made upon the clerk of court. Rule 5(a), SCRCP.

[4]If one needs another reason to draft proposed orders promptly, the notion that the ruling cannot be enforced until it becomes a filed court order is a pretty strong reason.

[5]Seeking to enforce a foreign child support or alimony order? Look to the Uniform Interstate Family Support Act (UIFSA). S.C. Code Ann. § 63-17-2900 et seq. There is also a federal statute dealing with multi-state child support enforcement. 28 U.S.C. §1738A.

Seeking to enforce a foreign child custody or visitation order? Look to the Uniform Child Custody Jurisdiction and Enforcement Action (UCCJEA). S.C. Code Ann. § 63-15-300 et seq. Again there is also a federal statute, known as the Parental Kidnaping Prevention Act (PKPA), dealing with multi-state custody enforcement. 28 U.S.C. §1738B.

[6]A pro se Defendant once filed a grievance against me after I used the threat of a enforcing a bench warrant issued as a result of her civil contempt to get her to agree to a modification of custody and visitation. The grievance was quickly dismissed when my letter noted that Rule 4.5 only prohibited the threat of “criminal” prosecution and that the bench warrant was for her civil contempt. However, counsel should be cautious when seeking criminal contempt findings (discussed below) as part of an attempt to resolve domestic litigation.

[7] Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754 (Ct.App. 2007) and Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86 (1998) are well worth reading to develop an understanding of the distinction between civil and criminal contempt.

[8]To turn a “complaint” into a “verified compliant” simply have the client sign a sworn statement with the following language and attached it to the complaint:

PERSONALLY appeared before me,____________________ , who being duly sworn, deposes and says that s/he is the Plaintiff/Defendant in the foregoing cause of action, that s/he has read over the attached Complaint and that the allegations contained therein are true of his/her own knowledge, except those things and matters stated on information and belief, and those s/he believes to be true.

[9]The best form is to file and serve the return (if possible) well before the rule hearing. If a return raising affirmative defenses is served at the hearing the prosecuting attorney faces a difficult decision: one can seek to continue the rule to have time to prepare a response (which allows the defending party to delay any finding of contempt) or go forward with the rule and risk losing on an affirmative defense. To avoid this problem, the prosecuting attorney should try to anticipate whether affirmative defenses common to defending rules might be raised.

[10]Does one need to raise “lack of willfulness” as an affirmative defense? Willfulness is one element required for a finding of contempt. Spartanburg Co. Dep’t of Soc. Servs., supra, 370 S.E.2d at 874. This would seem to indicate that one does not need to plead this defense. However, once the moving party proves the existence of the court order and the lack of compliance, the burden shifts to the other party to prove lack of willfulness. Lindsay, supra, 491 S.E.2d at 588. This would seem to indicate that one does have to plead this defense.

Someday law will be made on this issue in the South Carolina appellate courts. Until then, I would not want to be the attorney whose client was unable to raise a lack of willfulness defense at the trial level due to the failure to plead this defense. I would always plead this defense in a return if I intended to raise this defense.

[11] There are few South Carolina appellate court decisions applying the doctrine of “unclean hands” to a defense of a rule to show cause and none in which the defending party sought to use this doctrine to defeat a finding of contempt based on the claim that the prosecuting party had engaged in the same or worse behavior on the subject matter of the alleged contempt. Dicta in Emery would appear to support this application of the “unclean hands” defense. However, relying on the doctrine of “unclean hands” to defeat a finding of contempt when one’s client violated the court order but the client’s defense is that the prosecuting party violated the same provision just as badly (or worse) is a high risk strategy.

[12]Kelley provides an exceptional explanation and analysis of the laches and equitable estoppel defenses.

[13]Looking to make a name for yourself and/or do some interesting pro bono work? There are some intriguing potential challenges to the bookkeeping rule procedure.

Sarcastically called “Daddy Roundups” (See, e.g. Pompey v. Broward County, 95 F.3d. 1543 (11^th Cir. 1996), these bookkeeping rules frequently involve a dozen or more hearings within an hour involving “deadbeat dads” with each father being give a minute or two to explain his late payment before a large percentage are carted off to detention.

There are a couple of potential challenges to this procedure. The first is that these indigent fathers are not provided court-appointed counsel. There is some authority requiring the appointment of such counsel in civil contempt cases in which incarceration is a potential sanction. See e.g. Walker v. McLain, 768 F.2d 1181 (10^th Cir. 1985); Rodriguez v. District Court, 102 P.3d 41 (Nev. 2004). See also Robert Monk, The Indigent Defendant’s Right to Court-Appointed Counsel in Civil Contempt Proceedings for Nonpayment of Child Support, 50 U. CHI. L. REV. 326 (1983).

Another is that the court, in making the willfulness finding, is not determining that the father has the present ability to pay all of the past due support before incarcerating him until the full amount of such support is paid. This is probably improper. See e.g In Re Marriage of Hartt, 43 Colo. App. 335, 603 P.2d 970 (1979) (“the trial court must make findings both of the facts constituting the underlying contempt and that the contemnor has the present duty and ability to purge himself of contempt at the time of the entry of the remedial order”); see also, Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982); In re Marriage of Crowley, 663 P.2d. 267 (Colo. App. 1983); Bryant v. Bryant, 228 Conn. 630, 637 A.2d 1111 (1994); Lynch v. Lynch, 342 Md. 509, 521, 677 A.2d 584, 590 (1996); Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1985); McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985) Ex parte Rojo, 925 S.W.2d 654, 656 (Tex. 1996).

In Hughes v. Department of Human Resources, 269 Ga. 587, 502 S.E.2d. 233 (1998) the Georgia Department of Human Resources filed a petition for contempt against Hughes for his failure to pay child support. The trial court found Hughes in willful contempt for failing to make payments of $100.00 per week and that his arrearage totaled over $31,000.00. The trial court ordered Hughes incarcerated, but provided that Hughes could purge himself by paying $19,860.10 and $85.00 in court costs.

Almost two months later, Hughes filed a petition for release from incarceration, alleging that he did not have funds or property with which to pay the amount required. At a hearing on his petition, the evidence showed that Hughes had no money or property. Before his incarceration he had employment paying $10.00 per hour and his employer offered to pay $500.00 towards the arrearage if Hughes were released. The trial court found that Hughes had no means by which to pay the arrearage, but that incarceration was warranted because Hughes had allowed his support obligation to accrue for six years.

The Georgia Supreme Court held:

A party who has failed to pay support under a court order when he has the ability to pay may be found guilty of civil or criminal contempt and incarcerated under either. When the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil. Because the trial court ordered Hughes’ incarceration until he paid $19,945.10, the contempt in this case was civil in nature.

A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. As we have long held, “[t]he moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party.” Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders, the justification for imprisonment is lost when that compliance is impossible. The trial court found and DHR admits that Hughes lacks the ability to purge himself because he lacks money and property and his only source of income is manual labor. Under these circumstances, the trial court abused its discretion in continuing Hughes’ incarceration for civil contempt.

Florida had so many fathers successfully petitioning the appellate courts for writs of habeas corpus when the lower court found them in civil contempt and required them to pay all arrears to be released from incarceration that, in 1998, it implemented Family Court Rule of Procedure 12.615, which holds in part:

(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. The court may grant the contemnor a reasonable time to comply with the purge conditions. If the court orders incarceration but defers incarceration for more than 48 hours to allow the contemnor a reasonable time to comply with the purge conditions, and the contemnor fails to comply within the time provided, the movant shall file an affidavit of noncompliance with the court. If payment is being made through the Central Governmental Depository, a certificate from the depository shall be attached to the affidavit. The court then may issue a writ of bodily attachment. Upon incarceration, the contemnor must be brought immediately before the court within 48 hours for a determination of whether the contemnor continues to have the present ability to pay the purge.

(f) Review after Incarceration. Notwithstanding the provisions of this rule, at any time after a contemnor is incarcerated, the court on its own motion or motion of any party may review the contemnor’s present ability to comply with the purge condition and the duration of incarceration and modify any prior orders.

Finally there is a reasonable argument that incarcerating these deadbeat dads when they lack the ability to pay the full amount ordered for their release violates S.C. Const. Art. I, Sec. 19, which prohibits imprisonment for debts.