No lesson learned two years after the spanking

Posted Wednesday, May 1st, 2013 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Family Court Procedure, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

Two years after the United States Supreme Court reversed the South Carolina Supreme Court in Turner v. Rodgers, 131 S.Ct. 2507 (2011), I see no evidence that our family court system has taken any of Turner’s ruling to heart.  This is partially the fault of our state Supreme Court, which has failed to exercise its rule making authority pursuant to Article V, § 4, of the South Carolina Constitution.  It is partially the fault of the legislature, which, under that same constitutional provision, has concurrent authority to create procedural rules.  It is partially the fault of the family court system, which has largely failed to apply the holdings of Turner.   However the systemic denial of due process in family court civil contempt collection proceedings, that I noted before Turner, continues.  It is a disgrace.

One thing noteworthy about Turner is that the United States Supreme Court reached an issue not addressed by the South Carolina Supreme Court in order to reverse our state Supreme Court.  It did so despite upholding the primarily holding of the state court decision–that there was no due process right to mandatory appointed counsel for indigent defendants in civil contempt collection proceedings.  In addressing an issue not raised by appellant in the lower court, the United States Supreme Court not only reversed the state Supreme Court’s decision, it also laid out explicit, if not necessarily clear, rules for insuring that family court support collection proceedings comported with due process.  I assume it did this because it had the same concerns regarding South Carolina’s unconstitutional procedures that I had previously noted.

Of great concern to the United States Supreme Court was that South Carolina was doing an inadequate job on the “ability to pay” issue of civil contempt proceedings, leading to the danger that what were ostensibly civil contempt proceedings were imposing defacto criminal contempt sanctions:

Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question.  Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.  And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.

Id. at 2518 (citations omitted).

The South Carolina family courts have utterly failed to assure accurate decisionmaking in respect to the key “ability to pay” question.  Many other states handle these civil contempt proceedings by having family court judges make two separate determinations: the first on the contemnor’s “out of compliance” amount and the second on what the contemnor has the present ability to pay.  To qualify as civil contempt incarceration can only occur until the present-ability-to-pay amount is paid.  Two years after Turner, I have yet to encounter a civil contempt order explicitly making these two distinct factual findings.

Further, in deciding that court appointed counsel was not uniformly required for indigent defendants in civil contempt proceedings, the United States Supreme Court noted that procedural safeguards could reduce the risk that such defendants were erroneously deprived of liberty:

[T]here is available a set of “substitute procedural safeguards” which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

Id. at 2519 (citation omitted)

Two years later there is no uniform procedure to insure that these procedural safeguards are put in place.  Nothing in the current South Carolina Supreme Court promulgated rule to show cause form provides “notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding.”  The current form, SCCA 415, was last modified before Turner, in December 2009.  The financial declaration form, SCCA430, is not routinely or uniformly provided to defendants with the rule to show cause and often such defendants are first asked to fill such forms out at the courtroom during the rule hearing.  I’ve not heard of family court judges asking such defendants questions about their ability to pay triggered from these financial declarations.  The South Carolina Supreme Court promulgated civil contempt order for non support, SCCA 437, requires an explicit finding on the amount of arrears but no explicit finding on the amount the contemnor has the current ability to pay.

Further, one important holding apparently lost on everyone is that the right to court-appointed counsel, while not absolute, was mandated by the United States Supreme Court for family court collection proceedings in which the opposing party was represented by counsel:

We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

Id. at 2520 (first emphasis in original; second emphasis added).

Note the emphasized conjunction in the final sentence.  Under Turner, even if the state provides these alternative procedural safeguards, it must still provide indigent defendants counsel if the opposing parent or other custodian is represented by counsel.  Yet the South Carolina family courts read Turner as not imposing a right to indigent counsel under any circumstances and continue to deny indigent defendants counsel even if the opposing party is represented by counsel.

I don’t handle civil rights cases but some intrepid attorney could make a reputation and some money challenging the due process-denying methods that South Carolina continues to utilize in prosecuting civil contempt support collection.  Two years after Turner, we haven’t learned any lesson from our United States Supreme Court spanking.

6 thoughts on No lesson learned two years after the spanking

  1. Collection actions have become brutal and seem to be driven by the simple goal of maximizing the amount collected and accepting collateral damage. This isn’t really due process any longer. Over the long run, it’s exceptionally destructive to the earning potential of parents making payments since they’re expected to liquidate all their assetts and may go to jail. I’m sure this approach maximizes the amount wrung out of people, but over the long haul there will be staggering costs. We can’t ignore what has happened to this economy over the past five years.

  2. Anonymous says:

    Could A Group Of Fathers Who Have Had Their Rights Violated In This Way Sue The State For Not Following The Law?

    1. jim nimmich says:


      I am ready to start a movement for a class action lawsuit for this as well as the below.

      I also believe that it is discriminatory to make the income earner of a family pay for alimony when there is no proof of contribution of a source of outside income being made available or the potential that it could have been available for the living expenses of both. To apply a formula to an income earners income to determine their liability is outrageous, but has become routine! However, as the income earning spouse gets no “credit” as to the income spent for the support of the family, it further screams of discrimination against the payment of alimony or exorbitant child support in many cases after the income earner no longer has the benefits offered by the spouse.

      It is discriminatory against males in that in the gross majority of the time they are de facto by the court considered to be an inferior parent and therefore relegated to “visitation” ( I just love that term in this context! Not!). The fact that fathers should be denied equal time with their children in this day and age is purely discriminatory with no foundation for such rulings except possibly in the case of extremely young children.

      Lastly, the family court is no venue to determine a division of assets based on the determination of a supposed partnership between spouses. This is not an equity court and these judges are unqualified to make their own decisions based on an in depth knowledge of equity law. Listening to financial witness/mouth pieces is no substitute for true judgement on what can be very complex matters and result in ruinous decisions to those who have been responsible through hard, stressful, imaginative work to obtain such assets. How a court on the one hand can rule that a 50/50 partnership existed in the accumulation of assets and then turn to state that one party is due support flies in the face of all common sense, much less equity law.

      I am ready to argue that the 6th Amendment of the US Constitution is consistently violated by this court by denying the right to a trial by jury for supposed criminal infractions. This court should hear no such accusations, much less testimony on anything of a criminal nature. The Plaintiff in these issues should be directed to take these up with the “proper authorities” as a family court is not a venue for criminal matters. Turning criminal issues into court orders and thereby in the future, in many cases, being allowed to charge someone with criminal contempt of court is a contorted process in violation of this amendment.

      Who’d like to join me?

  3. scott says:

    I’ll join this movement!

    1. Kenny says:

      saw ur blog and agree totally!! SC family courts are a joke!!!!
      can we find an attorney who is up to the challenge and who wants to make a difference and stop the good ole boy network. Mr. Foreman is correct a good attorney could really gain much notoriety and gain thousands of new cases as well as handling appeals.
      What really gets me is that all theses family court judges treat the fathers like they all forced their wives to have children against their will. In my case it was a mutually agreed upon decision by two consenting MARRIED adults who chose to start a family. Both college educated with great careers.. Not out making unwanted babies in the back seat of a station wagon. Anyway enough rambling but COUNT ME IN!

  4. Kenny says:

    Dear Mr. Forman

    This comment is to bring to attention how the state of South Carolina and the family courts continue to ignore the U.S. Supreme Court ruling in the case of Turner v. Rogers on June 20, 2011.
    The state of South Carolina and the family courts continue to jail indigent parents as a first option in civil contempt proceedings (ie child support) despite their inability to pay due to loss of job and income. In Turner v. Rogers, Michael D. Turner was jailed repeatedly for his inability to pay child support that had reached over $5700.00 in arrearages. Mr. Turner appealed to the SC Supreme Court stating that his 6th and 14th Amendment rights were violated because the family court did not provide him with a public defender. The SC Supreme Court did not agree with Mr. Turner and denied to overturn his conviction. Mr Turner then appealed to the US Supreme Court and the high court ruled that while his 6th Amendment rights were not violated his14th Amendment rights were. The US Supreme Court then enacted new requirements on how civil contempt cases were handled. All 50 states were directed by the high court to revise how they handle civil contempt cases of indigent parents who are unable to pay child support. The high court determined that Mr Turner was not entitled to a public defender under the constitution. However, the high court determined that his right to Due Process was violated since they were no procedural safe guards or options in place for an indigent defendant facing civil contempt charges more specifically imprisonment.
    As my case is concerned, I received a phone call from Lindsay Scoggins from the York County Clerk of Courts office Friday afternoon October 11, 2013.
    I was instructed by Ms. Scoggins that I was to turn myself in at 9:00 am Monday October 14, 2013. Ms. Scoggins advised that I was to be placed in front of the judge to offer my explanation as to why I did not pay my child support. I reported as suggested by Ms. Scoggins. Ms. Scoggins explained to me that if I did not comply that the judge would issue a bench warrant for my arrest. Upon my arrival I went before The Honorable Judge Robert Guess. Judge Guess proceeded to read the charge to the court and asked me why I failed to pay. I attempted to explain to Judge Guess that I was involuntarily unemployed since December 4th 2012 and had not regained employment. Additionally, I advised Judge Guess that I rely on $1304.00 per month unemployment (which has since been eliminated) and was broke. I explained to Judge Guess that I am very actively seeking work and that in the last 6 months had sent out over 250 resumes and had not even received a phone call for an interview. I elaborated on my search for work and expressed that I was networking and involved with several recruiters and headhunters as well as most online job search providers. Upon my attempt to validate my claim I was cut short on my explanation and Judge Guess looked at my ex wife and asked her what she wanted him to do with me. She replied “I want this to be enforced”. Judge Guess then advised the court that he finds me in willful contempt and that he remands me to the county jail for a sentence of 6 months or pay $2100 in back child support. Once again I expressed my inability to pay to no avail. I was taken to the York County Jail and booked for several hours until my sister who is up from Florida was able to borrow the money from her husband in south Florida. My sister paid the money and I was released.
    On the very next day Tuesday October 15th 2013 I return to the Clerks office to pick up some paperwork for a different reason and the thought came to mind to pick up a copy of the Rule to Show Cause. The girls behind the counter looked through my files and failed to locate the Rule. They then began to start offering up excuses about why I never was served with the Rule. The primary excuse was that the sheriff most likely was not able to locate me. Once they were unable to locate the document they brought Ms. Scoggins from the back and she explained to me that no Rule to Show Cause was ever issued. It was my ex wife that appeared at the Clerk of Courts office and filed a bench warrant for my arrest. As in the Turner case and in hundreds of thousands of other similar cases involving child support and civil contempt I truly believe that my constitutional rights were violated as well as follows:

    1. No Rule to Show Cause was issued and served upon Me as guaranteed by Due Process of law.
    2. I was not provided public counsel.
    3. I was not provided a proper timeline to enable me to secure counsel or to obtain crucial documents such as unemployment documents, work search records, bank and financial declarations etc. crucial to my defense and that would have without a doubt proven I did not have the ability to comply.
    4. The procedural safe guards in civil contempt cases as described in Turner v. Rogers are required by the US Supreme Court consistent with Turner v. Rogers and are guaranteed by the 14th Amendment. These “safeguards” either are not in place at all or merely not being practiced or are being ignored and were not made available to me.
    5. The family court failed to prove that I had the ability to pay and that I willfully refused to pay.

    For your convenience I have included a link to the US Supreme Courts findings in the case of Turner v. Rogers

    I sincerely appreciate your attention in this matter as not only have I been denied my constitutional rights but hundreds of thousands of other indigent parents have as well and because their rights have been denied or violated they continue to rot in debtors prisons across the country. While many states are complying with the high courts ruling and have instituted “safeguards” in civil contempt cases South Carolina is not and has not. Ohio is just one of many that now provides a public defender in these cases. Others have also adopted a jobs not jail policy that attempts to place the indigent parent back into the work force and not jail as a first option. Several universities such as Cornell have concluded studies that jail time is not an effective means or resolution. Consistent with my latest research South Carolina has paid in excess of 75 million dollars in fines to the Federal Government for noncompliance. In addition to fines, South Carolina also continues to lose many federally funded programs, grants, aid etc as punishment for failure to comply in the wake of Turner v. Rogers.
    In short the old school or early 70’s approach of simply jailing an indigent parent who is unable to comply needs to be shelved and that way of thinking needs to go with it.

    Please understand that I am not an advocate for noncustodial parents that do have the financial resources to comply and pay but simply refuse or don’t. I firmly agree that parents should take care of their children including child support when and if they are able. And that goes for both mothers and fathers and should share an equal burden.

    Again your attention in this matter is greatly appreciated

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