What is Contempt?

“Contempt results from a willful disobedience of a court order.” Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct.App. 1997).  S.C. Code Ann. § 63-3-620 grants the family court specific powers to enforce its orders:

An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court, or who violates any provision of this title, 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. An adult sentenced to a term of imprisonment under this section may earn good time credits pursuant to Section 24-13-210 and work credits pursuant to Section 24-13-230 and may participate in a work/punishment program pursuant to Section 24-13-910 unless his participation in any of these programs is prohibited by order of the sentencing judge.

In addition to contempt sanctions, the party proving the other party’s contempt is entitled to attorney’s fees and costs for documenting the contempt under the theory of “compensatory contempt.”

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 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. The award of attorney’s fees is not part of the punishment; instead, this award is made to indemnify the party for expenses incurred in seeking enforcement of the court’s order.

Abate v. Abate, 377 S.C. 548, 660 S.E.2d 515, 520, n. 4 (Ct. App. 2008) (citations omitted). Because civil contempt carries serious sanctions, there are numerous procedural protections afforded a party who has allegedly violated a contempt 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.”Spartanburg Co. Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988). 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. Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct. App. 2004). “The language of the commands must be clear and certain rather than implied” in order to support a finding of contempt for violation of a court order. Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973). “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). Where the moving party’s actions frustrate the other parties’ compliance with the order, the other party should not be held in contempt. Abate, supra 660 S.E.2d at 518  (where mother prevented father from determining identity of child’s physicians, it was abuse of discretion to hold father in contempt for failing to consult with child’s psychiatrist before giving child drug holiday).

A civil contempt finding is purgeable: that is once a violating party comes into compliance the sanction is lifted. In civil contempt cases, the sanctions are conditioned on compliance with the court’s order. The conditional nature of the punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by doing what he had previously refused to do. If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court’s order…. Those who are imprisoned until they obey the order, carry the keys of their prison in their own pockets. If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court’s order.

Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754, 761 (Ct.App. 2007). “Charges of constructive contempt are brought by a rule to show cause which must be based upon an affidavit or verified petition.  South Carolina Rule of Family Court 14 establishes formal procedures regarding rules to show cause.  The supporting affidavit or verified petition must “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.” Rule 14(c), SCRFC “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.” Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130, 131 (1986). “Due process requires that a litigant be placed on notice of the issues which the court is to consider.” Bass v. Bass, 272 S.C. 177, 249 S.E.2d 905, 906 (1978). When requested by either party a rule must proceed via testimony. See, e.g., Elvis v. Elvis, 272 S.C. 413, 252 S.E.2d 142, 143 (1979) (without agreement or testimony on the issues, court erred in granting relief on rule).

“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, supra, 491 S.E.2d at 588 (“[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, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct.App.2001), a father brought a rule 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. “Civil contempt must be proved by clear and convincing evidence.” Miller, supra, 652 S.E.2d at 761. 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, which will not be disturbed on appeal unless it is without evidentiary support.” Sutton v. Sutton, 291 S.C. 401, 353 S.E.2d 884, 889 (Ct.App. 1987) (citations omitted).