Court of Appeals opinion unwittingly exposes serious flaws in South Carolina’s Family Court Rules

Posted Monday, July 26th, 2021 by Gregory Forman
Filed under Child Custody, Contempt/Enforcement of Orders, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The July 7, 2021, Court of Appeals opinion in Taylor v. Taylor, 863 S.E.2d 335, 434 S.C. 307 (Ct. App. 2021), unwittingly exposes serious flaws in South Carolina’s Family Court Rules–specifically the notice provision for rules to show cause and the ability of family court judges to alter custody or visitation as part of a contempt proceeding. It further demonstrates the post-Lewis trend of the appellate courts explicitly rejecting the family court’s credibility determinations–something that almost never happened prior to Lewis.

In Taylor, Father brought contempt proceedings against Mother alleging violations of the visitation order. The contempt hearing was set for January 31, 2017. Mother was served January 15, 2017, and retained counsel January 25, 2017. On January 26 and 27, 2017, Mother’s attorney issued trial subpoenas directing Father and various witnesses to appear at court on January 31, 2017, and to bring requested documentation with them. Father filed a motion to quash these subpoenas, and requested sanctions and attorney’s fees. Mother filed a return to the motion to quash, asserting the requested documents were relevant to Father’s requested relief and his ability to pay attorney’s fees.

At trial, the family court first addressed Father’s motion to quash. One of the subpoenaed witnesses, Christmas, joined in his motion. After reviewing the pleadings and hearing additional argument, the family court orally quashed the subpoenas as to the requested production of documents. The court briefly noted its reasoning on the record and stated it would later reduce its ruling to writing.

Father stipulated he was capable of paying Mother’s attorney’s fees should she prevail on the issue of contempt, and Mother accepted his stipulation. The parties then presented evidence on the issue of contempt. Near the end of the day, the family court assured Mother it would not grant Father visitation for every weekend, holiday, and all of summer break even if he were to prevail. Mother informed the court that because of this assurance and Father’s stipulation for attorney’s fees, she no longer needed to question the nonparty witnesses, and the court released them. The remainder of the trial occurred on April 11 and July 10.

On August 1, 2017, the family court issued an order (the Final Order) finding Mother in contempt for willfully violating the Divorce Decree by denying Father visitation for Thanksgiving and Son’s birthday in 2016. The family court awarded Father $11,742.50 in attorney’s fees under the E.D.M. v. T.A.M. and Glasscock v. Glasscock factors and as a compensatory contempt award under Miller v. Miller.

The family court also awarded Father five days of make-up visitation and made three modifications to the Divorce Decree: the first modified the visitation provision regarding Son’s birthday; the second required any agreed alteration of visitation to be in writing, such as in text messages or emails; and the third established that the alternating weekend visitation would reset after each holiday. The family court sentenced Mother to thirty days’ incarceration but provided her the ability to purge the sentence by paying Father’s attorney’s fees and by cooperating with Father in completing his make-up visitation days.

In the same order, the family court provided its written ruling on Father’s motion to quash and his request for sanctions. The family court listed five grounds for quashing the subpoenas: (1) Mother’s attorney violated Rule 45, SCRCP, by failing to give Father notice of the subpoenas at least ten days before the time specified for compliance; (2) the subpoenas were issued in contravention of Rule 25, SCRFC, which, at that time, prohibited discovery in family court unless the parties consented or the court issued an order of discovery; (3) the subpoenas imposed an undue burden and expense on the witnesses; (4) the subpoenas failed to allow reasonable time for compliance; and (5) the subpoenas required the witnesses to perform affirmative acts. On the same day, the family court also issued a separate order (the Christmas Order) finding the subpoena imposed an undue burden and expense on Christmas. Because it found the subpoenas imposed an undue burden and expense on Father and Christmas, the family court ordered Mother and her attorney to pay Father’s and Christmas’s attorney’s fees of $3,186.25 and $3,465.00, respectively, as a sanction. The award to Christmas also included $140.00 in compensation for childcare Christmas obtained so she could gather the requested material.

Mother filed a Rule 59 motion seeking to alter or amend these orders. After the family court made one small clarification on visitation, Mother appealed.

The Court of Appeals reversed the findings of contempt against Mother for violating provisions regarding Thanksgiving visitation and visitation for the son’s birthday. On the Thanksgiving provision, the Court of Appeals noted the following:

The Divorce Decree provides that Parents are to mutually agree on holiday visitation. If Parents are unable to agree, the Divorce Decree provides default visitation arrangements. The default provision for Thanksgiving is for Mother to have Son from 6:00 P.M. on Wednesday to 6:00 P.M. on Sunday in even-numbered years and for Father to have Son for the same time period in odd-numbered years “[u]nless this rotation is altered at some point.” The Divorce Decree neither explains how the rotation may be altered nor provides that such an alteration automatically occurs if Parents mutually agree for one parent to have Son for the entire holiday.

The record establishes that Parents regularly agreed on visitation, without triggering the default provisions, until 2016. That year, Parents failed to agree on Thanksgiving visitation thereby triggering the default rotation. At trial, Father asserted Parents altered the rotation in 2015 and Mother violated the Divorce Decree by not giving him Son for the entire 2016 Thanksgiving holiday. As the complainant, Father bore the burden of proving this assertion. …Parents offered conflicting testimony as to the 2015 Thanksgiving visitation. Mother argued they simply agreed on a visitation arrangement for that year alone, and Father asserted they agreed to alter the rotation. The family court found that Parents agreed to alter the rotation in 2015 and that Mother violated the Divorce Decree by withholding Son from Father for Thanksgiving in 2016.

Based on our de novo review, we find the family court erred. The basis for Father’s claim that Parents altered the rotation is a series of text messages Parents exchanged prior to Thanksgiving in 2015. Initially, we note the text messages show the parties were attempting to come to an agreement regarding visitation. Father stated he would like to have Son “the entire time” but then asked to have Son Wednesday through Friday. Mother proposed Thursday through Sunday so that Son could visit an older family member in poor health Wednesday night. Father then asked if Parents would begin rotating Thanksgiving going forward. In response, Mother asked to split the 2015 holiday and stated “`rotation’ can start next year with you,” offering to exchange Son with Father on Thursday and allowing Father “a long weekend even though” the weekend was hers under the Divorce Decree’s weekend rotation. Father then responded, “[Son] can stay with you Thanksgiving and through the weekend. If I am going to be alone, I am going to leave town.” He did not state if he accepted Mother’s offer or whether he understood the arrangement to be a mutual agreement on visitation for Thanksgiving 2015 or an agreement to alter the Thanksgiving rotation going forward.

This exchange could be interpreted as one of two results: (a) Parents failed to come to an agreement on how to facilitate visitation, relied on the Divorce Decree’s default rotation, and agreed to alter the rotation so that Mother had odd-numbered years and Father had even-numbered years going forward or (b) Parents reached an agreement on how to conduct visitation for that year and did not invoke the default rotation. We find the messages themselves are inconclusive. Thus, we look to Parents’ conduct following the messages.

Father’s conduct following the text messages does not show an understanding that Parents agreed to alter the Thanksgiving rotation. This is clear when reviewing Parents’ communication in September 2016. Parents were discussing visitation for the Labor Day holiday, and Mother informed Father she wanted to follow the Divorce Decree for the upcoming holidays. Father asked what that was because they had “never followed that agreement,” and he stated he wanted to discuss and agree on a schedule for the upcoming holidays. A couple of weeks later, Parents were again discussing the upcoming holidays, and Father stated he wanted to set a schedule. Mother asked what was wrong with the Divorce Decree’s plan, and Father responded, “I do not know what the court plan is. It is based on sequential events (e.g., one year with you, one year with me, etc.). We have never followed that. . . . If you have time, read over the agreement. Maybe I am wrong. I have not read it. But I can go back and read it too.”

(emphases added). Father did not assert the rotation had been altered until a week before Thanksgiving in 2016. Notwithstanding the family court’s superior position to adjudge the credibility of the witnesses and assess conflicting evidence, we find Father’s statement that he did not know the specifics of the Divorce Decree’s visitation plan, his two statements indicating Parents had never followed the Divorce Decree’s visitation plan, and Mother’s testimony show Parents did not believe in 2015 that the text messages altered the Divorce Decree’s default rotation.

Based on the foregoing, we find the preponderance of the evidence does not clearly and convincingly show that Parents agreed to alter the Thanksgiving rotation such that Father was entitled to the entire 2016 Thanksgiving holiday.

This reversal of contempt on the Thanksgiving visitation is yet another example of the appellate courts explicitly rejecting a family court’s credibility determination. This almost never occurred before Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). It has become increasing common since. Here, Father’s own writing contracted his testimony, so the family court’s determination that he was more credible than Mother on the issue of whether the Thanksgiving rotation continued probably should have been reversed. Still, such reversals almost never happened prior to Lewis.

The Court of Appeals also reversed the finding that Mother had denied Father visitation on the Son’s birthday, because the Birthday Provision did not provide how the visitation is to occur when Son’s birthday falls on a weekend. It noted:

The Birthday Provision is contained within the holiday provisions and is subject to the requirement that Parents mutually agree on visitation. It provides that in the absence of an agreement, in even-numbered years, Mother “shall have [Son] from after school the night before [Son’s] birthday and [Father] shall have [Son] from after school on his birthday until the following morning.” In odd-numbered years, Mother’s and Father’s time with Son is reversed.

In 2016, Son’s birthday fell on a Saturday. Mother organized a party for Son on his birthday and Father attended. Following the party, Parents, Son, other family members, and friends returned to Mother’s house for Son to open presents. Mother also organized for some of Son’s friends who did not live in town to spend the night. Father asserted Mother violated the Divorce Decree by denying him visitation with Son from the afternoon of Son’s birthday until the following morning.

In the Final Order, the family court found Mother willfully violated the Birthday Provision by denying Father overnight visitation on Son’s birthday and held her in contempt. The family court stated it was unreasonable to believe Parents would have agreed to sharing time with Son on his birthday only when it fell on a weekday. Noting that “this provision should have been more articulately drafted,” the family court interpreted the provision’s words “after school” as “defining words” referencing time, rather than “limiting words.” The family court found that because Mother testified Son’s school ended at 3:00 P.M., the Divorce Decree required her to relinquish Son to Father at that time if Son’s birthday fell on a weekend.

We hold the family court erred in finding Mother willfully violated the Birthday Provision. The Birthday Provision does not provide how Parents are to conduct visitation with Son when his birthday falls on a weekend, and both parties acknowledged this. Therefore, the family court erred in finding Mother in contempt for failing to deliver Son to Father at 3:00 P.M. on Son’s birthday.

The Court of Appeals did not find the family court erred in quashing Mother’s subpoenas. It noted there was no exception for the ten-day notice requirement to provide records under Rule 45(a)(2), SCRCP, when a subpoena seeks the records to be provided for a trial. It noted that in In re Fabri, 418 S.C. 384, 389, 793 S.E.2d 306, 309 (2016), the Supreme Court stated Rule 45 requires “that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents, regardless of when the documents are commanded to be produced.” (first emphasis added). While Mother argued Father wasn’t prejudiced by the untimely notice, the Court of Appeals declined to impose a prejudice requirement, in this case, before quashing an untimely subpoena.

However the Court of Appeals rejected the family court’s determination that the subpoenas to Father and Christmas imposed an undue burden. It found that the financial information Mother sought in these subpoenas was relevant on issues of attorney’s fees. If noted Father’s rule to show cause sought modification of his visitation schedule and Father’s work travel information, which Mother sought in these subpoenas, was relevant on that issue. It further noted that the notes to Rule 14, SCRFC, allows that “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).” Based upon this determination, and the decision to reverse the contempt findings, the Court of Appeals reversed the award of attorney’s fees and ordered each party to pay his or her own fees and costs.

The Court of Appeals’ opinion, while correct from a technical sense, is likely to create chaos in the prosecution of rules to show cause. By its terms, Rule 27(d), SCRFC, only applies to pro se contempt proceedings, and the rule was rarely involved. Taylor appears to give the family court carte blanch to modify custody or visitation as part of a visitation contempt proceeding if the prosecuting party requests it. How the family court is to make this determination as part of a contempt proceeding while considering the seventeen custody factors under S.C. Code § 63-15-240(B) is not something Taylor addresses.

One would think due process would require a continuance any time a party attempts to use a rule to show cause to modify custody or visitation to give the defending party sufficient time to conduct discovery (and potentially provide time for a guardian ad litem to be appointed and investigate). One would think due process would require a continuance every time a rule to show cause is served in which the defending party does not have realistically sufficient time to retain counsel and have that counsel issue records subpoenas. However, given the awesome contempt powers of the family court–one year incarceration; $1,500 fine; 300 hours of community service; or any combination thereof–a defending attorney might realistically file an expedited motion for a continuance any time he or she encounters this situation (assuming the prosecuting party won’t agree to the continuance). I see family court dockets getting clogged with expedited motions to continue rules to show cause and week-long rules to show cause in which compliance should be the main issue but the seventeen factors of S.C. Code § 63-15-240(B) become the real issue.

As indicated above, I think Taylor is technically correct. However in failing to note that the family court must grant a continuance if service is not effected in enough time to allow the defending party to issue necessary records subpoenas, this opinion basically encourages due process violations. Taylor would seem to allow a rule to show cause to proceed upon such short notice (ten-days) that unless a defending party is able to retain counsel and have that counsel serve records subpoenas on the same day the defending party is served, the defending party could be precluded from issuing records subpoenas to defend a proceeding in which custody could potentially be changed. One cannot imagine that this was the intent of these procedural rules.

Further, in reading Rule 14, SCFCR, to allow a family court unfettered discretion to modify custody or visitation when requested as part of a rule to show cause, this opinion turns the orderly process of custody modification litigation into an unruly hash. This ruling would also appear to contradict Pitt v. Olds, 327 S.C. 512, 489 S.E.2d 666, 670-671 (Ct.App. 1997), which required a new action be filed when a party attempted to modify a final custody order.

The Taylor opinion is a disaster.