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2010-UP-289 - DiMarco v. DiMarco

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Cheryl A. DiMarco, Respondent,

v.

Brian A. DiMarco, Appellant.


Appeal From Greenville County
Barry W. Knobel, Circuit Court Judge


Unpublished Opinion No.  2010-UP-289
Submitted April 1, 2010 – Filed May 24, 2010


AFFIRMED AS MODIFIED


Brian A. DiMarco, of Greenville, for Appellant.

Kim Varner, of Greenville, for Respondent.

PER CURIAM: Brian A. DiMarco (Husband) appeals the family court's order finding him in contempt, arguing the court erred in holding him in criminal contempt without his attorney present and a jury trial. We affirm as modified.[1]   

In June 2008, Husband was ordered before the family court on a rule to show cause for noncompliance with a prior support order.  Two days prior to the hearing, Husband paid the outstanding balance on his support obligation.  At the hearing, the family court noted Husband was in compliance with the support order, but found him in contempt.  The court stated, "The sentence is going to be 12 months, it'll be civil contempt I will suspend that he is to have a $250.00 court cost that'll be due by July 11th. We'll let him out of detention at this point in time."

Here, the family court's contempt sanction has elements of both civil and criminal contempt.  The sanction is civil in that the jail sentence will not be imposed unless and until Husband fails to pay the $250 in court costs.  See Poston v. Poston, 331 S.C. 106, 112, 502 S.E.2d 86, 89 (1998) (noting the "conditional nature of [a] punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by" complying the court's order).  On the other hand, the sanction is criminal in that if Husband fails to pay the $250 in court costs he will go to jail for a definite period of time.  See id. at 111-12, 502 S.E.2d at 89 (noting contempt is criminal "[i]f the relief provided is a sentence of imprisonment, . . . [and] the sentence is limited to imprisonment for a definite period").  However, during the hearing the family court indicated several times it intended to hold Husband in civil contempt.  Further, in stating the sanction the family court indicated it was civil contempt.  We find the family court intended to hold Husband in civil contempt but inadvertently stated the sanction unclearly.  Therefore, we modify the family court's sanction to impose a one-year sentence that Husband may purge by payment of $250 in court costs, thus releasing himself from confinement.  Husband shall have fifteen days from the filing of this opinion to pay the $250 in court costs before the one-year sentence commences.  For the foregoing reasons, the decision of the family court is 

AFFIRMED AS MODIFIED.

HUFF, THOMAS, and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.