Are you seeking to modify or enforce that family court final order (or do both)?

Posted Saturday, October 10th, 2020 by Gregory Forman
Filed under Child Custody, Contempt/Enforcement of Orders, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

In my eleven-plus years of doing this blog I’ve yet to write about the different procedures and goals in modifying versus enforcing a final order from the family court–considering it too obvious to address. From feedback I received from a Facebook post last week, it’s apparently not too obvious–and likely to be useful to family court litigants as well as some of my younger colleagues.

The issue of whether to modify or enforce a final family court order arises when one party discovers the other party’s violation. That violation can be a basis for a rule to show cause, which is the method of enforcing family court orders. However, sometimes, that violation can be a substantial change of circumstance, which is a basis to modify the prior final order.

When one wishes to force the other party to comply with a court order, the mechanism used is a rule to show cause, which is synonymous with the contempt petition. The procedure governing family court rules to show cause are set forth in Rule 14, SCFCR. “The purpose of civil contempt is to coerce the defendant to do the thing required by the order for the benefit of the complainant.” Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86, 88 (1998). If a party has willfully violated a family court order, the court can impose the sanctions authorized by S.C. Code Ann. § 63-3-620 to enforce compliance. Those sanctions are a $1,500 fine, 300 hours of community service, one year imprisonment, or any combination thereof. The court can also award the aggrieved party attorney’s fees and costs under the doctrine of compensatory contempt. Abate v. Abate, 377 S.C. 548, 660 S.E.2d 515 (Ct.App. 2008).

Some violations of a court order can obviously be remedied through contempt–past due support payments being a primary example. Some violations can not be so obviously remedied. Denied visitation can be made up but the denied time with the child cannot truly be remedied. Some violations cannot be remedied through contempt, the most common example being violations of various restraints on a party’s behavior. With civil contempt, the best the court can do to “remedy” those violations are what I refer to as “go and sin no more” orders. Such orders require the offending party to behave in the future, with the threat of criminal contempt sanctions being imposed for subsequent violations. Only a few times in my career–the Abate case above being a notable example–have such sanctions been required to enforce compliance with a family court order.

Sometimes, however, the violations are so significant that they constitute a substantial change of circumstances. Most often the violations that may also constitute a substantial change of circumstances are in the context of child custody/visitation issues. Abusing hard drugs while the child is in one’s care likely violates a restraint in most South Carolina custody orders but it would also constitute a substantial change of circumstance to modify child custody. Thus such a violation would give rise to a new action to modify custody.

In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question. A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child will be served by the change. The change of circumstance relied on for a change of custody must be such as would substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience. The circumstances warranting a change in custody must occur after the date of the original custody order.

Kisling v. Allison, 343 S.C. 674, 679, 541 S.E.2d 273, 275-276 (Ct.App.2001).

When one wishes to modify a family court final order based upon a substantial change of circumstances one must file a new action. Pitt v. Olds, 327 S.C. 512, 489 S.E.2d 666, 670-671 (Ct.App. 1997) (family court properly dismissed motion to modify custody brought under case in which a final order had issued; party seeking to modify final order based upon substantial change of circumstances must file new action).

As a violation of a court order can be part of a substantial change of circumstances, it can be beneficial to file both a contempt petition and a modification action. As the contempt action will typically be resolved first, any contempt finding becomes res judicata in the ongoing modification case–an excellent reason to seek a contempt finding even if the primary goal is modification.

Most violations of family court orders will not give rise to a substantial change of circumstances finding–especially those that are minor and easily capable of remedy. However, when the goal is modification, the procedure should be a new action and not merely a contempt petition. The few cases that authorize custody modification via a contempt petition predate Pitt v. Olds and the family court’s authority pursuant to Rule 27(d), SCFRC, to modify visitation through pro se contempt petitions is too limited for significant use.

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