Four Rule to Show Cause Pitfalls to Avoid

By Gregory S. Forman - Published in South Carolina Trial Lawyers Magazine, Fall 2001; Material for South Carolina Bar “Cool Tips” Lecture, April, 2001

"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." S.C. Code Ann. § 20-7-1350 (Supp. 2000). The proper procedure for raising allegations of contempt is to bring a rule to show cause. New attorneys and attorneys who do not frequently appear in Family Court can get tripped-up in handling rules to show cause. Here are four pitfalls to avoid:

I. SERVICE

Service of a rule to show cause cannot be done in the same manner as serving a summons and complaint. This is because the rules for service of a summons (listed in Rule 4(d), SCRCP) are not the same as the rules for service of other items (listed in Rule 4(c),SCRCP) For example, service via certified mail or private process server or upon an adult household member may not be good service for a rule to show cause. Rule 4(c), which describes these service rules, reads as follows:

By Whom Served. Service of summons may be made 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. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.

Rule 4(c), SCRCP (emphasis added).

Since a rule to show cause is not a summons, a strict reading of Rule 4(c), indicates that, unless the court orders otherwise, service needs to be done by sheriff or his deputy or any other duly constituted law enforcement officer. However, Rule 4(c) explicitly allows the court to designate other methods for service. When I began practicing, Judge Segars-Andrews suggested that any rule to show cause explicitly allow for service via any manner allowed under Rule 4(d). It is a suggestion worth following.

A sample rule to show cause form is below. Note that this form specifically allows that "This order and rule to show cause can be served on the above person by any means allowable under SCRCP 4(d)," thus allowing for service via certified restricted-delivery mail, by private process servers or upon suitable household members. Note also that it includes my name, address and telephone number. Often the identity of the attorney bringing the rule will not be apparent from the rule itself, especially if the case has resulted in a final order. By providing this information, you allow the other party or that party's attorney to contact you in order to negotiate a resolution to the rule prior to the hearing.

TO: ________________________

Based upon the attached affidavit, it appears that you have not obeyed certain court Order(s), as described in the affidavit. Therefore,

IT IS ORDERED THAT YOU APPEAR BEFORE THE Family Court for Charleston County on the ____day of ____, 200 _at _____o'clock __.m., then and there to be prepared to show cause, if any, why the relief requested in the affidavit should not be granted and why you should not be held in contempt of court for such disobedience. This order and rule to show cause can be served on the above person by any means allowable under Rule, 4(d), SCRCP.

_________________________________

PRESIDING JUDGE, FAMILY COURT

NINTH JUDICIAL CIRCUIT

at Charleston, South Carolina

this __day of_______ , 200__.

Gregory S. Forman, Esquire

II. VERIFICATION

Any rule to show cause that a private attorney files will allege "constructive contempt." "Constructive contempt ... is that occurring outside the presence of the Court."Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611, 617 (1994) (citations omitted). "Charges of constructive contempt are brought by a rule to show cause which must be based upon an affidavit or verified petition. The failure to support the rule to show cause by an affidavit or verified petition is a fatal defect." Id.

In Toyota, the Supreme Court reversed the lower court's contempt finding because the rule to show cause was not verified. Rules to show cause must have affidavits or verified complaints attached. A rule to show cause which is not done via an affidavit or verified complaint is subject to dismissal.

III. VIOLATION OF ORDER AND TESTIMONY

While it seems obvious, a rule to show cause requires a violation of a specific provision of a court order. See, Spartanburg County Dept. of Social Services v. Padgett, 296 S.C. 79, 370 S.E.2d 872, 874 (1988) (where no valid order was violated, finding of contempt could not be sustained). "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." Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877, 881 (Ct. App. 1992). While the court is generally willing to enforce-and impose a reasonable interpretation on-provisions such as "reasonable visitation," there must still be a specific violation of an existing order in order to sustain a finding of contempt.

Bringing a rule to show cause to enforce a provision of a temporary order that is not subsequently included in an existing final order or bringing a rule to show cause to enforce typical restraints (such as a prohibition against overnight paramours being around the child) which were not part of any order is improper.

However, there does not have to be a written order for a finding of contempt. See 17 Am Jur 2d Contempt §131, p. 488. "[P]ersons who, knowing of oral decisions, violate their provisions, may be held liable for contempt, although the decision has not yet been formulated into an order or writ." Id.

A good method of drafting the verified complaint or affidavit in support of a rule to show cause is to attach the specific order allegedly violated (if the order has been reduced to writing), and specifically reference the language of that order in alleging the violations. For example:

• · The January 29, 2001 temporary order in this case prohibits the parties from "exposing the minor child to paramours overnight." See January 29, 2001 order attached as Exhibit A, p. 2, ¶6.
• · On March 12, 2001, the Defendant allowed his current paramour to spend the night in his home while the minor child was present.
• · The Defendant's actions are in violation of the above provision of the court's January 29, 2001 order.
• · The Defendant should be held in contempt for his violation(s) of the court's January 29, 2001 order, be sanctioned for his contempt, and be made to pay Plaintiff's reasonable attorney's fees and costs.

Once the movant makes a prima facie showing by pleading an order and demonstrating noncompliance, "the burden shifts to the respondent to establish his defense and inability to comply." Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989); see also Lindsay v. Lindsay, 328 S.C. 329, 338, 491 S.E.2d 583, 588 (Ct. App. 1997) ("[T]he moving party must show the existence of a court order and the facts establishing the respondent's noncompliance with the order.").

In Eaddy v. Oliver, Op. No. 3312 (Ct. App. filed March 5, 2001) (Shearouse Adv. Sh. 9 at 84, 87) a father brought a rule to show cause for violation of a visitation order. After father presented a prima facie case, mother presented no evidence or testimony. Because father had made a prima facie case and mother presented no evidence, the Court of Appeals found that the family court had erred in failing to find mother in contempt.

Because live testimony is generally required for rules, make sure the rule is set for enough time to handle the matter. Few things anger judges more than too little time being set aside for a hearing (thus backing up their dockets). In the Padgett case, supra, the family court attempted (unsuccessfully) to hold an attorney in contempt for underestimating the amount of time a hearing would require. Also, clients get angry when a hearing gets continued because too little time was requested.

IV. WILLFULNESS

Contempt is not a strict-liability offence: to have someone held in contempt of court requires proof of willfulness. For purposes of contempt, "[a]n act is willful if 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." Wilson v. Walker, 340 S.C. 531, 538, 532 S.E.2d 19, 22 (Ct. App. 2000) (emphasis added). See also, Padgett, supra. 370 S.E.2d at 874 (where no bad purpose, court erred in holding attorney in contempt); Black's Law Dictionary 1434 (5th Ed. 1979). Furthermore, the "intent" required for a finding of willfulness is subjective, not objective. State v. Bowers, 270 S.C. 124, 241 S.E.2d 409, 413 (1978); State v. Goff, 228 S.C. 17, 88 S.E.2d 788, 792 (1955). And "[a]lthough the Family Court is empowered to find and punish for contempt, there is no requirement that sanctions be imposed upon a finding of contempt." Sutton v. Sutton, 291 S.C. 401, 409, 353 S.E.2d 884, 888-89 (Ct. App. 1987); Eaddy, supra.

In State v. Bevilacqua, 316 S.C. 122, 447 S.E.2d 213 (Ct.App. 1994), the Department of Mental Health, believing there was a problem with a family court order, did not seek relief from the family or an appellate court. Instead, the Department simply failed to follow the order. The Court of Appeals reversed a finding of contempt against the Department, noting:

Courts have no more important function to perform in the administration of justice than to ensure their orders are obeyed. The appellate courts of this state have zealously defended the right of trial courts to vindicate their authority by way of contempt. Nevertheless, contempt is an extreme measure and the power to adjudge a person in contempt is not to be lightly asserted. Id., 447 S.E.2d at 216. Without a "bad purpose either to disobey or disregard the law," a finding of contempt was inappropriate. Id. at 217.

Before bringing a rule to show cause, determine if a bad purpose, as well as a violation of the order, can be proven. With most rules, the "bad purpose" will be obvious from the violation. Violation of restraints against doing illegal drugs around a child or stalking an ex-spouse almost require a bad purpose. However, there are cases in which willfulness will be an issue. A custodial parent who refuses the other parent visitation when the other parent shows up intoxicated will most likely not be held in contempt of court for denying the intoxicated parent's visitation. If there are issues regarding the willfulness of the alleged contemnor, be prepared to prove it. And where a lack of willfulness is apparent from the factual situation, it may be wise to forgo bringing a rule to show cause.

CONCLUSION

Rules to show cause are a powerful tool for enforcing and documenting a parties' non-compliance with court orders. "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." S.C. Code Ann. § 20-7-1350. Further, courts are generally willing to award the prevailing attorney most or all of the requested fee for successfully prosecuting a rule to show cause, as a party is entitled to all reasonable fees and costs incurred in documenting another parties' contempt. Whetstone, supra. Avoiding the above pitfalls greatly increases the practitioner's ability to successfully pursue and prosecute rules to show cause.