The March 5, 2025, Court of Appeals opinion in Clark v. Clark, affirms the family court’s determination that Mother could be found in contempt for publishing a book critical of Father under a theory that their Minor Child could learn of the book.
Clark is the outgrowth of a contentious divorce that actually resulted in a prior published opinion, Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (Ct. App. 2018), affirming true joint custody over Mother’s objection. As part of the divorce decree, the family court ordered, “All parties are restrained against the use of profanity or making any derogatory comments about or toward the other party, or allowing anyone else to do so in front of the child, in any manner whereby the child might learn of the same.”
After the divorce, Mother published a book alleging physical, mental, emotional, and sexual abuse at the hands of Father. That book contained photographs of their Minor Child and was published, marketed, and sold by national book retailers. Mother’s website mentions the child and marketed that book along with a book authored by the Minor Child.
Father sought contempt regarding the content of this book. At trial, Mother acknowledged numerous portions of the book that were derogatory of Father but defended the contempt by alleging that the Minor Child never had access to the book or its contents. During her case in chief, she defended her actions by arguing that restraining her from publishing this book violated her First Amendment right to free speech.
After obtaining briefing on the First Amendment issue, the family court disagreed. It found Mother “violated various provisions of the parties’ prior orders, including provisions against making derogatory comments about the other in any manner whereby Minor Child might learn of same, failing to keep Minor Child in a moral and safe environment, conduct detrimental to Minor Child, and allowing Minor Child access to age inappropriate material.” The court held Mother in criminal and civil contempt”
As part of its order, the family court required Mother “to cease and desist from selling and disseminating The Book in any manner whatsoever and placed other restrictions on Mother’s use and handling of the material associated with The Book.” The family court sanctioned Mother by sentencing her to jail, suspended upon her removal of The Book from the open market among other requirements, ordering her to pay fines totaling $3,500.00, and ordering her to pay attorney’s fees and costs of $10,000.00 within ninety days of the order. After her motion for reconsideration was denied, Mother appealed.
The Court of Appeals rejected Mother’s argument that she could not be held in contempt because there was no showing that the Minor Child was even aware of the book. In rejecting Mother’s argument, the Court of Appeals cited factual findings from the family court:
Mother and Minor Child both being pictured on Mother’s website, both promoting their respective books on Mother’s website, the fact that the mother of Father’s older daughter has a copy of The Book and speaks to Minor Child regularly, and the public promotion and sale of The Book online, to account for its finding of contempt in Mother’s publishing of The Book.
At trial Mother sought to have Father’s eighteen year-old daughter testify as to the fact that that the Minor Child was unaware of the book. The family court refused to allow this adult daughter to testify because, pursuant to Rule 23(b), SCFCR, “children should not be offered as witnesses as to the misconduct of either parent, except, when, in the discretion of the court, it is essential to establish the facts alleged.” The family court also found such testimony would not be relevant on the issue of Mother’s contempt. The Court of Appeals affirmed the daughter’s exclusion as a witness.
Finally, the Court of Appeals found that the restraint on Mother’s ability to sell her book did not violate her First Amendment rights. It noted the family court modified the disparagement order so that Mother could make derogatory comments about Father “where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.
The Court of Appeals distinguished a recent Massachusetts Supreme Court case, Shak v. Shak, 484 Mass. 658, 144 N.E.3d 274 (2020), which held a restraint against posting disparaging remarks online was an impermissible prior restraint on speech, It did so by noting the child in Shak was a toddler who was unlikely to learn about these remarks. It noted this child here was eleven years old and a published author, making it more likely she would learn about Mother’s derogatory remarks. The Court of Appeals also noted the emotional issues the child had made her more suspectable to harm should she encounter Mother’s book.
The Court of Appeals concluded:
[T[he disparagement provision was narrowly tailored and the least restrictive means to protect the best interests of Minor Child. The disparagement provision was even altered to protect certain forums for Mother’s disparaging comments. The record evidences years of contention and attempts at parental alienation by both parties.The amended disparagement provision properly restricts the parties’ unprotected speech so as to protect the best interests of Minor Child. We find Mother’s willful contempt of the Final Divorce Order provides further justification for the necessity of the disparagement provision and find no violation of her First Amendment right to free speech.
Because the Court of Appeals affirmed the contempt finding, it also affirmed the attorney fee award.
I held off on blogging about Clark because I represented Appellant/Mother and I don’t believe it appropriate to discuss my appeals until the petition for rehearing is addressed. I no longer represent Mother (she switched counsel before filing the petition for rehearing). It will be interesting to see if the Supreme Court grants certiorari and whether the Supreme Court alters the Court of Appeals decision.
Thanks for the information and case cite. I may use this in one of my pending cases, but that involves Facebook postings.