As Charleston divorces lawyers, we’ve handled many Rules to Show Cause for contempt of family court orders in South Carolina. A contempt action, otherwise known as a Rule to Cause, occurs when someone is alleged to have violated an order such as failing to pay child support. Every case typically ends with a Final Order. Even while the cases are going on, sometimes Temporary Orders are issued. Once someone is ordered to do something, if they don’t do it, they can possibly be held in civil or criminal contempt of court. In this article, we discuss contempt charges in general, the difference between civil and criminal contempt, the procedure for a Rule to Show Cause, and the possible penalties.
Violating a Family Court Order in South Carolina
There are numerous things that people can be ordered to do. Some involve payment of money. For example, if someone is ordered to pay child support, alimony, or some lump sum payment in the division of assets, and that person does not make one or more payments on time, that person might have contempt charges brought against them. If someone is given court-ordered visitation, and the custodial parent withholds the child, the custodial parent might be held in contempt. If someone is ordered to list the marital home but refuses to do so, that person could be in contempt. The list of reasons is numerous. The bottom line is that if you are ordered to do something, you better do everything in your power to do it. It is always advisable to hire legal counsel BEFORE you ever end up in court or sign off on an agreement because of the serious ramifications that come with family court orders.
The Difference Between Direct vs. Constructive Contempt in South Carolina
As our courts have stated, “[t]he power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice.”
In South Carolina, contempt can take place in two ways – direct contempt or constructive contempt. Direct contempt is acts that take place in the presence of the court. That does not mean that a judge must actually see or hear the person’s conduct or words. Instead, this conduct can take place in the courtroom, near jurors (in cases other than family court, anywhere in the courthouse, and “wherever any of [the court’s constituent parts is engaged in the prosecution of the business of the court according to the law.” Unlike direct contempt, construction contempt is acts that take place outside the court’s presence.
The difference between direct and constructive contempt is important because it determines how the contempt proceedings must be brought. If the contempt is direct, then there is no requirement that a rule to show cause be based upon a supporting affidavit or verified petition (sworn under penalty of perjury). For example, if the court views a person engaging in misconduct in the courtroom such as verbally abusing a spouse during a divorce, the court may hold a contempt hearing without any supporting paperwork. However, constructive contempt must be brought by a rule to show cause must be based on an affidavit or verified petition. For example, if a parent fails to pay court-ordered child support, then the other parent can file a verified petition or paperwork with a supporting affidavit explaining why the other parent should be held in contempt.
The Difference Between Civil vs. Criminal Contempt in South Carolina
If the family court finds that someone is in contempt of a family court order, the family judge must decide whether the accused’s contempt is civil or criminal. Whether the contempt is civil or criminal depends on the family court’s purpose behind its contempt ruling. The difference between civil and criminal contempt is very important because there are constitutional safeguards for criminal contempt.
Civil Contempt – The purpose is to coerce a person to do the thing that is required by the family court’s order such as compelling a parent to pay his or her child support. In other words, the punishment is remedial and for the other party’s benefit. A fine that is payable to the court is remedial when the person can avoid payment by performing an affirmative act under the family court order. In other words, in civil contempt cases the sanctions (such as jail and/or a fine) are conditioned on compliance with the court’s order. The person can end their jail sentence by doing what he or she had been previously court-ordered to do. For example, the court may hold someone in contempt for failing to deliver marital property under the divorce decree. The court may order that person to remain in jail for a period of time, but they can get out of jail if they deliver the property. Civil contempt must be proved by clear and convincing evidence.
Criminal Contempt – The primary purpose is to preserve the family court’s authority and to punish any disobedience of its orders. In other words, the sentence is designed to punish the guilty person and to uphold the power of the court. In the case of criminal contempt, the penalty (such as jail time) can’t be undone by promising not to repeat the offense. If the sanction is a fine that is paid to the court (not to the other party) and it can’t be avoided by performing some other act, then the sanction is for criminal contempt because the sanction is punitive and not remedial. Criminal contempt requires proof beyond a reasonable doubt. Also, because a person can be sentenced to imprisonment for more than six months under South Carolina law, the accused is entitle to a jury trial under the Sixth Amendment.
How Do I Hold Someone in Contempt for Violating a Family Court Order?
If the contempt is constructive, then you must file a Rule to Show Cause (“RTSC”) and serve it on the other party. At the RTSC hearing, the filing party presents their evidence as to the other person’s alleged violation of the order. The responding party is also allowed to present evidence to show why they should not be held in contempt. The responding party may try to show that they did not do the things they are accused of, that the filing party’s interpretation of the order is incorrect, that the responding party was unable to do the things required, or some other reason to avoid contempt.
Rules to Show Cause are serious matters. They have many requirements with the initial papers to be filed. There might be timelines that are applicable. At the hearing, the judge will hold the parties to following the procedural rules and the rules of evidence. Ultimately, someone could end up in jail, and anyone could potentially be ordered to pay attorney’s fees. For these reasons, we urge anyone filing or defending a RTSC to contact the attorneys at Futeral & Nelson and schedule a consultation.
Family Law Attorneys in Charleston, South Carolina
If you need to enforce a family court order in Charleston or you are facing a contempt of court charge, please call Futeral & Nelson, LLC today for a consultation.