Court of Appeals clarifies standards for service of notice of UIFSA action and issuance of child support bench warrant

Posted Tuesday, January 5th, 2010 by Gregory Forman
Filed under Child Support, Contempt/Enforcement of Orders, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The December 30, 2009 Court of Appeals opinion in SCDSS v. Johnson, 386 S.C. 426, 688 S.E.2d 588 (2009), clarifies the service requirements for notification of attempted registration of a foreign order under the Uniform Interstate Family Support Act (UIFSA) and clarifies when the court can issue a bench warrant for an alleged failure to pay support.

Johnson involved registration and enforcement of a North Carolina child support order in South Carolina.  After North Carolina properly issued a child support order against Johnson he moved to South Carolina.  The North Carolina order required Johnson to keep NCDSS “informed of his current residence and mailing address.”  SCDSS mailed Johnston notice of its intent to register and enforce the North Carolina order to the address the postal service has provided NCDSS.  On appeal Johnson alleged this notice was insufficient.

The Court of Appeals disagreed, finding that S.C. Code Ann. § 20-7-1140(A) (Supp. 2006) [now § 63-17-3710] authorized notification to the nonregistering party of the registration of a support order or income withholding order issued in another state by first-class mail.  The Court of Appeals further found that Rule 5, SCRCP (regarding service of pleadings and other papers) rather than Rule 4, SCRCP (regarding service of summons and complaints) applied to registration of foreign support orders pursuant to UIFSA and therefore notice could be sent via first class mail.  Thus, South Carolina properly registered the North Carolina support order.

Johnson was already subject to a previous SCDSS child support order.  Pursuant to § 63-17-450 (Supp. 2008), he was required to provide SCDSS his current home address and provide SCDSS notification of any changes of home address within ten days of the change.  He acknowledged that he had failed to do this.

After SCDSS registered the North Carolina support order, the bookkeeping clerk attempted to enforce the order through a rule to show cause.  Because Johnson could not be served at his last known address, he did not appear at the bookkeeping rule and the family court issued a bench warrant for his arrest.  At the subsequent family court contempt hearing, after he was arrested, Johnson admitted that he had failed to pay the required support and was found in civil contempt.  On appeal, Johnson argued that the procedure by which he was found in contempt, being arrested without being served with the rule to show cause, violated due process.

The Court of Appeals noted two statutory bases under which the family court can issue a bench warrant when a obligor fails to appear at a rule to show cause.   The first basis is when the obligor is properly served but simply fails to appear.  However, the Court of Appeals noted that even when an obligor is not properly served with a rule to show cause, § 63-17-390 (Supp. 2008) states that “[w]here a respondent shall neglect or refuse to obey an order for support or upon agreement signed by the respondent and approved by the court, and the court is satisfied thereof by competent proof, it may, with or without notice, issue a warrant to commit the respondent to jail until the order is obeyed or until the respondent is discharged by law.”

Citing a previous Attorney General opinion, the Court of Appeals noted “If, however, an alleged contemnor is not personally served with the rule to show cause, the family court may, pursuant to the provisions of section 20-7-870 [now § 63-17-390], use the scheduled court time to conduct a hearing to determine whether there is ‘competent proof’ of disobedience of the court order.  Id.  If there is such proof, the family court may issue a warrant for the contemnor’s arrest, which would be based on section 20-7-870, rather than the failure to respond to the rule to show cause.”  Since “the records clearly reflects Johnson failed to comply with the prior support order, of which he was properly notified,” the Court of Appeals held that the bench warrant was properly issued.

Kudos to local DSS attorney Chuck Magera for his victory in the Court of Appeals.

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