Rule 14 Rule to Show Cause

Note:

The long established procedural vehicle to bring a party into court for contempt proceedings has been the rule to show cause.

Direct contempt is an act committed in the presence of the Court while it is in session. A person may be held in direct contempt if his/her conduct interferes with judicial proceedings, exhibits disrespect for the Court, or hampers the parties or witnesses. Stone v. Reddix-Smalls, 295 S.C. 514, 369 S.E.2d 840 (1988). Direct contempt is usually resolved by the trial judge during the regular proceeding already in session.

The rule to show cause provided herein is for contempt of court arising from failure to comply with the Court's orders, decrees or judgments and for enforcement thereof. This form of contempt is known as constructive contempt of court.

Note:

Rules to show cause brought pursuant to Rules 24 and 27, SCRFC, are issued by the clerk of court for enforcement of support and for enforcement of visitation or child custody rights, respectively.

Requiring the rule to show cause in Rule 14, SCRFC, to set forth the date, time and place of the contempt hearing satisfies rudimentary due process requirements. "Permissible relief" is relief normally incident to contempt of court proceedings, such as enforcement of court orders, decrees and judgments and awarding compensatory contempt damages. The judge issuing the rule to show cause is empowered to strike from the rule any request for relief not normally incident to contempt proceedings; e.g., modification (by either decrease or increase) of the child support amount. Such matters should be brought before the court by the filing of a Summons and Complaint as in any other modification action. However, in furtherance of justice and to serve the best interests of children, the judge should be able to consider, in his/her discretion, reasonable requests, e.g., the imposition of a restraining order or modification of visitation. See Rule 27(d), SCRFC.

Note:

Requiring an affidavit or verified petition is consistent with manifest case law and other procedural rules.

A rule to show cause issued to initiate contempt proceedings must be based upon an affidavit or verified "petition." State v. Johnson, 249 S.C. 1, 152 S.E.2d 669 (1967). The failure to support the rule to show cause by an affidavit or verified petition "is a fatal defect." Toyota of Florence v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994) (citing State v. Blackwell, 10 S.C. 35 (1878)). SeeBrasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130 (1986) and Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29, 32 (1938). Requiring the supporting affidavit or verified petition in Rule 14, SCRFC, satisfies due process concerns by ensuring that rules to show cause will only be issued with clear, specific allegations being set forth for the court and the responding party.

Note:

Requiring that rules to show cause be served with the supporting affidavit or verified petition and providing for ten days' notice are consistent with standard motion practice as provided by Rule 6(d), SCRCP. These requirements will also help alleviate the "surprise" problems which have plagued contempt proceedings, thereby satisfying due process. Nevertheless, the rights of the moving party are not ignored as the issuing judge has the discretion to shorten the notice period in emergencies.

Note:

The manner of service provided by Rule 14, SCRFC, is consistent with standard practice in all courts as provided by Rules 4(c) and 4(d), SCRCP, with the exception that the rule to show cause and supporting affidavit or verified petition are to be served by personal delivery upon the responding party.

Personal service as specified within Rule 14(e) ensures due process by facilitating reliable service directly upon the responding party.

Note to 2022 Amendment:

This amendment specifies the manner of proof of personal service, which is consistent with the requirements of Rule 4(g), SCRCP. The amendment also permits a person to accept service of a rule to show cause in a manner consistent with Rule 4(j), SCRCP, in which case no other proof of service is required.

Note:

The requirement of a return satisfies the due process rights of the moving party, thereby balancing the protection for the responding party provided elsewhere by Rule 14, SCRFC. Serving a return is analogous to the required service of an answer or reply or responsive affidavits in other litigation, and provides the moving party with some notice of the responding party's defense to the contempt allegations.

Note:

In Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86 (1998), the Supreme Court defined civil contempt of court and criminal contempt of court, and clarified the separate burden of proof for both forms of contempt. Requiring the moving party to meet the burden of proof at the contempt hearing is consistent with Brasington v. Shannon, 288 S.C. 183, 184, 341 S.E.2d 130, 131 (1986) (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. The burden then shifts to the respondent to establish his defense and inability to comply with the order.); Messer v. Messer, 359 S.C. 614, 598 S.E.2d 310 (Ct. App. 2004); Widman v. Widman, 348 S.C. 97, 557 S.E.2d 693 (Ct. App. 2001); Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct. App. 1997).

Even though a party is found to have violated a court order, the question of whether or not to impose sanctions remains a matter for the court's discretion. Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct. App. 1997) (citing Sutton v. Sutton, 291 S.C. 401, 409, 353 S.E.2d 884, 888 (Ct. App. 1987)). Statutory sanctions for contempt are enumerated at S.C. Code Ann. § 63-3-620 (Supp. 2010).

The court may also award compensatory contempt damages to the moving party. Compensatory contempt seeks to reimburse the party for the costs he or she incurs in forcing the non-complying party to obey the court's orders. SeePoston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86, 90 (1998) ("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."); Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct. App. 1997) ("A compensatory contempt award may include attorney fees."); Curlee v. Howle, 277 S.C. 377, 386-87, 287 S.E.2d 915, 919-20 (1982) ("Compensatory contempt is a money award for the plaintiff when the defendant has injured the plaintiff by violating a previous court order." "Included in the actual loss are the costs of defending and enforcing the court's order, including litigation costs and attorney's fees."). In furtherance of justice and to serve the best interests of children, 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).