Contempt of Family Court Orders

A sizable portion of most South Carolina family law practices are enforcing or defending enforcement of family court orders. Other than child support or spousal support orders where support is paid through the court, family court orders are not enforced unless a party to the order seeks enforcement. The method of enforcement is called a rule to show cause and the mechanism to enforce is called contempt. Contempt basically employs the police powers of the state to the benefit of private individuals.

South Carolina code authorizes the following sanctions for a contempt of family court order:

An adult who willfully violates, neglects, or refuses to obey or perform a lawful order of the court may be proceeded against for contempt of court. An 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.

South Carolina has set procedures for rules to show cause. A rule to show cause shall be signed by the issuing judge with the date of issuance and shall require the responding party to appear in court, at a clearly stated date, time and place, to show cause for why the responding party should not be held in contempt and why permissible relief requested by the moving party should not be granted.

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.

The rule to show cause, and the supporting affidavit or verified petition, shall be served not later than ten days before the date specified for the hearing, unless a different notice period is fixed by the issuing judge within the rule to show cause. In an emergency situation, the notice period of ten days may be reduced by the issuing judge.

If at the contempt proceeding the responding party intends to seek counsel fees and costs, or other appropriate relief permitted by law, then he shall serve a return to the rule to show cause prior to the commencement of the hearing, unless a Family Court judge requires a return to be served at some other time. The responding party’s failure to serve a return does not relieve the moving party from the burden of establishing contempt of family court.

The contempt of family court hearing shall be an evidentiary hearing with testimony pursuant to the Rules of Evidence, except as modified by the Family Court Rules. At the civil contempt of court hearing, the moving party must establish a prima facie case of willful contempt by showing the existence of the order of which the moving party seeks enforcement, and the facts showing the respondent’s noncompliance. The moving party shall satisfy the burden of proof required by family law for the specific nature of contempt of family court. Once the moving party establishes a prima facie case, the respondent is entitled to present evidence of a defense or inability to comply with the order. If requested, the Court may allow reply testimony. The Court may impose sanctions provided by law upon proper showing and finding of willful contempt, and may award other appropriate relief properly requested by a party to the proceeding.

Some family court judges are starting to employ criminal contempt sanctions for contempt that cannot be purged. For example, if someone is $2,000 behind on child support, then that person can come into compliance by paying $2,000. The contempt of family court order is purgeable and hence is considered civil contempt of court. However, some civil contempt cannot be purged. For example if an order restrains a party from speaking poorly of the other parent in the child’s presence and that party does so, then there is no way to undo that contempt. In such circumstances some family court judges are using criminal contempt sanctions and sending parents to jail for days or weeks. When allegations of civil contempt are potentially criminal contempt, awareness of this fact and experience in negotiating and defending such claims can be vital to a client avoiding incarceration.

Because civil contempt of family court orders carry serious sanctions, there are numerous procedural protections afforded a party who has allegedly violated a contempt order. Punishment for contempt of court in family court result from a willful disobedience of a court order. Willful disobedience requires an act to be done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law. A party seeking a contempt finding for violation of a court order must show the order’s existence and facts establishing the other party did not comply with the order. In order to sustain a finding of contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based. Where the moving party’s actions frustrate the other parties’ compliance with the order, the other party should not be held in contempt. Civil contempt of family court orders must be proved by clear and convincing evidence. Finally, a finding of contempt does not require the imposition of sanctions. Although the Family Court is empowered to find and punish for contempt, there is no requirement that sanctions be imposed upon a finding of contempt. A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge.

Courts, by exercising their contempt power, can award attorney’s fees under a compensatory contempt theory. Compensatory contempt seeks to reimburse the party for the costs it incurs in forcing the non complying party to obey the court’s orders. In a civil contempt of family court proceeding, a contemnor may be required to reimburse a complainant for the costs he incurred in enforcing the court’s prior order, including reasonable attorney’s fees. The award of attorney’s fees is not a punishment but an indemnification to the party who instituted the contempt proceeding. The court is not required to provide the contemnor with an opportunity to purge himself of these attorney’s fees in order to hold him in civil contempt of court. The award of attorney’s fees is not part of the punishment for contempt of court for family court; instead, this award is made to indemnify the party for expenses incurred in seeking enforcement of the court’s order.

Although not really recognized as such, family court orders are a court of equity’s creation of private law. While applicable South Carolina civil or criminal code sections set limits on conduct for all citizens or some class of citizens, a family court order sets rights and responsibilities for the parties subject to that particular order. And the consequences of not following such orders are powerful. Having an experienced, knowledgeable and diligent family law attorney prosecute a contempt of court action is often the difference between having a court order that actually requires the other party to do certain things (or refrain from doing certain things) and a worthless piece of paper. Having such an attorney defend a contempt of family court order can often be the difference between a successful defense and defeat. In cases where the contempt is clear, experienced counsel can be the difference between a settlement that does not unduly harm the contemnor and incarceration. If you would like to retain Gregory Forman for your civil contempt of family court case contact him here.