I have little doubt that, if raised in the proper case, the ten-day notice requirement in South Carolina Family Court Rule 14(d) will be held to violate procedural due process. Rule 14(d), SCFCR, allows contempt proceedings to go forward with as few as ten-days notice–and shorter notice if the family court authorizes a shorter notice requirement. For many contempt proceedings ten days is simply insufficient time to prepare.
For contempt proceedings in which there are little or no factual disputes (other than the alleged contemnor’s ability to comply) one can defend a contempt proceeding without issuing discovery or records subpoenas. However, for cases in which evidence may be in the hands of third parties or in which inculpatory or exculpatory evidence may be in the prosecuting party’s possession, ten-days notice is simply insufficient.
Brady v. Maryland, 373 U.S. 83 (1963) set forth a requirement of government disclosure in criminal proceedings based upon due process rights. While most contempt proceedings involve private parties, the due process concerns in criminal proceedings would also seem to implicate contempt proceedings, as they can lead to a similar depravation of liberty interests.
No South Carolina case holds that due process requires allowing a defending party to obtain discovery in contempt proceedings. There is federal case law holding that due process requires allowing the prosecuting party to obtain discovery to demonstrate contempt. See e.g, Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851 (7th Cir. 2005); United States v. City of Northlake, 942 F.2d 1164, 1170 (7th Cir.1991); Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 91 F.3d 914 (7th Cir. 1996). Rockwell noted that even the party alleging contempt had a due process right to seek discovery. Korn v. Korn, 180 So. 3d 1122 (Fla. Dist. Ct. App. 2015), reversed a finding of criminal contempt because the trial court did not allow the alleged contemnor sufficient time to conduct discovery.
Where there are factual disputes regarding a party’s compliance or ability to comply, one would think due process would mandate discovery prior to trial. The ten-day notice provision in Rule 14(d), SCFCR clearly does not allow sufficient time to issue discovery. In the correct circumstance, I believe it would be reversible error to have a family court quash discovery requests in a contempt proceeding (which I am informed the family court sometimes does) or deny a continuance request to allow the alleged contemnor to conduct discovery. However defending attorneys need to issue discovery and seek a continuance in order to raise this issue in our appellate courts.
I agree 100%.