What are the potential remedies for notice-based contempt pleadings?

Posted Thursday, February 14th, 2019 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Family Court Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

Late last month the family court issued a contempt petition against a client of mine in which the petition was a “notice” pleading, not a “fact” pleading. For those unfamiliar with the distinction, a notice pleading (typical in the federal courts as authorized by Federal Rule of Civil Procedure 8), simply provides the Defendant notice of the Plaintiff’s claims, while a fact pleading (required in South Carolina under its parallel rule of civil procedure), requires specific allegations of the facts that state the basis of the claim(s).

A simplistic example of how these two types of pleadings differ follows. Notice pleading: “Plaintiff is suing Defendant for negligence [details of said negligence forthcoming].” Fact pleading: “Plaintiff is suing Defendant for negligence because the Defendant’s negligence in running a red light caused a motor vehicle accident that caused injury to the Plaintiff.”

If the general rule of pleading in South Carolina requires facts, the specific rule of pleading family court contempt is even clearer on the need for factual allegations. Per Rule 14(c), SCFCR, “No rule to show cause shall be issued unless based upon and supported by an affidavit or verified petition, or unless issued by the judge sua sponte. The supporting affidavit or verified petition shall identify the court order, decree or judgment which the responding party has allegedly violated, the specific act(s) or omission(s) which constitute contempt, and the specific relief which the moving party is seeking. Such court order, decree or judgment shall be attached to the affidavit or certified petition.”

There’s excellent reason for the requirement that contempt petitions delineate “the specific act(s) or omission(s) which constitute contempt.” Per S.C. Code Ann. §63-3-620, “[a]n 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.” The defending party in a contempt action runs the risk of leaving the court in handcuffs, led by law enforcement to the county jail. It is an essential element of due process that such Defendants receive full notice of the factual allegations that might lead to this result.

Unfortunately, family court judges are not 100% diligent in reviewing contempt petitions for compliance with Rule 14(c), SCFCR. I’ve had a few experiences in which a pro se litigant slipped a non-conforming contempt petition past a family court judge. In those cases, I’ve felt comfortable showing up at the contempt hearing seeking dismissal based on improper pleading. However last month’s contempt petition was drafted by an experienced attorney. It listed three ways my client was allegedly in violation of the court’s order without describing the specific acts for each violation. I did not want to show up at the contempt hearing raising the lack of specificity for the first time. The family court judges who are not 100% diligent about denying contempt petitions that lack specificity are the same judges who are not 100% diligent about following due process requirements–and the consequences of my client going to jail because we didn’t know what facts she was being required to defend was too great a risk for my comfort. Thus, I filed a motion to dismiss the rule (seeking to have the prosecuting party make his complaint more definite and certain as an alternative remedy). How to procedurally file this motion was a quandary that I still haven’t resolved to my satisfaction.

One option is to direct the motion to the judge who issued the rule as a motion to vacate the order (a rule to show cause is an actual court order directing a party to appear and defend the contempt petition). Since the rule to show cause has some of the qualities of a writ, one could possibly bring this motion under the authority of Rule 65, SCRCP. One could also bring this motion pursuant to Rule 60, SCRCP, however the notice provision for such motions to be heard is longer than the notice provisions of Rule 65. Further, neither of these rules of civil procedure clearly fits the rationale of such a motion.

The second option is to file a motion to dismiss the rule for failing to comply with the requirements of Rule 14(c), SCFCR. A motion brought by this procedure may, but is not likely to, be heard by the issuing judge. However Rule 14, SCFCR doesn’t describe the remedy to address improperly issued rules. The closest remedies are Rule 12(b)(4), SCRCP, for insufficiency of process, or Rule 12(b)(6), SCRCP, for failing to state a claim for which relief can be granted. Yet neither of those procedural rules are perfect fits for the rationale of such motions.

There are other procedural concerns. No matter how polite one is in filing such motions, no judge wants to be told that he or she issued a rule that failed to comport with due process. Thus bringing this a motion to vacate to the issuing judge runs risks of angering a judge. However, “[t]here is a long-standing rule in this State that one judge of the same court cannot overrule another.” County Dept. of Social Services v. Father, Stepmother, and Mother, 317 S.C. 283, 454 S.E.2d 307, 310 (1995). Bringing this as a motion to dismiss to a different judge may cause the second judge concern that he or she is being asked to overrule the initial judge

I finally decided to bring the motion as one to dismiss, pursuant to the authority of SCFCR 14(c). The extent that the opposing party was required to plead all factual allegations he intended to prove a the contempt hearing, I was granted relief. I remain open to persuasion that there are other, better, methods of addressing insufficient contempt pleadings but I am 100% certain that one should never allow a client to defend a family court contempt petition without having substantial advance notice of the factual allegations that might land him or her in jail.

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