The Supreme Court of South Carolina
RE: Amendments to South Carolina Rules of Family Court
O R D E R
Pursuant to Article V, § 4, of the South Carolina Constitution, the South Carolina Rules of Family Court are hereby amended as provided in the attachment to this order. These amendments shall be submitted to the General Assembly as provided by Art. V, § 4A of the South Carolina Constitution.
IT IS SO ORDERED.
s/Jean H. Toal C.J.
s/Costa M. Pleicones J.
s/Donald W. Beatty J.
s/John W. Kittredge J.
s/Kaye G. Hearn J.
Columbia, South Carolina
January 31, 2012
RULE TO SHOW CAUSE
(a) For Contempt of Court. Except for direct contempt of court, contempt of court proceedings shall be initiated only by a rule to show cause duly issued and served in accordance with the provisions hereof.
The long established procedural vehicle to bring a party into court for contempt proceedings has been the rule to show cause.
Direct contempt is an act committed in the presence of the Court while it is in session. A person may be held in direct contempt if his/her conduct interferes with judicial proceedings, exhibits disrespect for the Court, or hampers the parties or witnesses. Stone v. Reddix-Smalls, 295 S.C. 514, 369 S.E.2d 840 (1988). Direct contempt is usually resolved by the trial judge during the regular proceeding already in session.
The rule to show cause provided herein is for contempt of court arising from failure to comply with the Court's orders, decrees or judgments and for enforcement thereof. This form of contempt is known as constructive contempt of court.
(b) Issuance; Form. A rule to show cause for contempt of court shall be issued by a Family Court judge, except as provided by Rules 24 and 27, SCRFC. The 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 why the responding party should not be held in contempt and why permissible relief requested by the moving party should not be granted.
Rules to show cause brought pursuant to Rules 24 and 27, SCRFC, are issued by the clerk of court for enforcement of support and for enforcement of visitation or child custody rights, respectively.
Requiring the rule to show cause in Rule 14, SCRFC, to set forth the date, time and place of the contempt hearing satisfies rudimentary due process requirements. "Permissible relief" is relief normally incident to contempt of court proceedings, such as enforcement of court orders, decrees and judgments and awarding compensatory contempt damages. The judge issuing the rule to show cause is empowered to strike from the rule any request for relief not normally incident to contempt proceedings; e.g., modification (by either decrease or increase) of the child support amount. Such matters should be brought before the court by the filing of a Summons and Complaint as in any other modification action. However, in furtherance of justice and to serve the best interests of children, the judge should be able to consider, in his/her discretion, reasonable requests, e.g., the imposition of a restraining order or modification of visitation. See Rule 27(d), SCRFC.
(c) Affidavit or Verified Petition. 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.
Requiring an affidavit or verified petition is consistent with manifest case law and other procedural rules.
A rule to show cause issued to initiate contempt proceedings must be based upon an affidavit or verified "petition." State v. Johnson, 249 S.C. 1, 152 S.E.2d 669 (1967). The failure to support the rule to show cause by an affidavit or verified petition "is a fatal defect." Toyota of Florence v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994) (citing State v. Blackwell, 10 S.C. 35 (1878)). See Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130 (1986) and Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29, 32 (1938). Requiring the supporting affidavit or verified petition in Rule 14, SCRFC, satisfies due process concerns by ensuring that rules to show cause will only be issued with clear, specific allegations being set forth for the court and the responding party.
(d) Notice. The rule to show cause, and the supporting affidavit or verified petition, shall be served, in the manner prescribed herein, 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.
Requiring that rules to show cause be served with the supporting affidavit or verified petition and providing for ten days' notice are consistent with standard motion practice as provided by Rule 6(d), SCRCP. These requirements will also help alleviate the "surprise" problems which have plagued contempt proceedings, thereby satisfying due process. Nevertheless, the rights of the moving party are not ignored as the issuing judge has the discretion to shorten the notice period in emergencies.
(e) Service. The rule to show cause shall be served with the supporting affidavit or verified petition by personal delivery of a duly filed copy thereof to the responding party by the Sheriff, his deputy or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.
The manner of service provided by Rule 14, SCRFC, is consistent with standard practice in all courts as provided by Rules 4(c) and 4(d), SCRCP, with the exception that the rule to show cause and supporting affidavit or verified petition are to be served by personal delivery upon the responding party.
Personal service as specified within Rule 14(e) ensures due process by facilitating reliable service directly upon the responding party.
(f) Return. 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 court.
The requirement of a return satisfies the due process rights of the moving party, thereby balancing the protection for the responding party provided elsewhere by Rule 14, SCRFC. Serving a return is analogous to the required service of an answer or reply or responsive affidavits in other litigation, and provides the moving party with some notice of the responding party's defense to the contempt allegations.
(g) Hearing Procedure. The contempt hearing shall be an evidentiary hearing with testimony pursuant to the Rules of Evidence, except as modified by the Family Court Rules. At the contempt 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 law for the specific nature of contempt before the 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.
In Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86 (1998), the Supreme Court defined civil contempt of court and criminal contempt of court, and clarified the separate burden of proof for both forms of contempt. Requiring the moving party to meet the burden of proof at the contempt hearing is consistent with Brasington v. Shannon, 288 S.C. 183, 184, 341 S.E.2d 130, 131 (1986) (In a proceeding for contempt for violation of a court order, the moving party must show the existence of the order and the facts establishing the respondent's noncompliance. The burden then shifts to the respondent to establish his defense and inability to comply with the order.); Messer v. Messer, 359 S.C. 614, 598 S.E.2d 310 (Ct. App. 2004); Widman v. Widman, 348 S.C. 97, 557 S.E.2d 693 (Ct. App. 2001); Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct. App. 1997).
Even though a party is found to have violated a court order, the question of whether or not to impose sanctions remains a matter for the court's discretion. Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct. App. 1997) (citing Sutton v. Sutton, 291 S.C. 401, 409, 353 S.E.2d 884, 888 (Ct. App. 1987)). Statutory sanctions for contempt are enumerated at S.C. Code Ann. § 63-3-620 (Supp. 2010).
The court may also award compensatory contempt damages to the moving party. Compensatory contempt seeks to reimburse the party for the costs he or she incurs in forcing the non-complying party to obey the court's orders. See Poston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86, 90 (1998) ("In a civil contempt 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."); Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct. App. 1997) ("A compensatory contempt award may include attorney fees."); Curlee v. Howle, 277 S.C. 377, 386-87, 287 S.E.2d 915, 919-20 (1982) ("Compensatory contempt is a money award for the plaintiff when the defendant has injured the plaintiff by violating a previous court order." "Included in the actual loss are the costs of defending and enforcing the court's order, including litigation costs and attorney's fees.").
In furtherance of justice and to serve the best interests of children, the judge should be able to consider, in his/her discretion, appropriate requests, e.g., the imposition of a restraining order or modification of visitation. See Rule 27(d), SCRFC (court may modify prior order's provisions in visitation enforcement proceedings).