287 S.E.2d 915 (S.C. 1982), 21642, Curlee v. Howle

Docket Nº:21642.
Citation:287 S.E.2d 915, 277 S.C. 377
Opinion Judge:HARWELL, Justice:
Party Name:Jessica R. CURLEE, Respondent, v. Jerry A. HOWLE, Appellant.
Attorney:Larry D. Estridge, of Wyche, Burgess, Freeman & Parham, Greenville, for appellant. Ronald F. Barbare, of Lathan, Fayssoux, Smith & Barbare, of Greenville, for respondent.
Case Date:February 17, 1982
Court:Supreme Court of South Carolina
 
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Page 915

287 S.E.2d 915 (S.C. 1982)

277 S.C. 377

Jessica R. CURLEE, Respondent,

v.

Jerry A. HOWLE, Appellant.

No. 21642.

Supreme Court of South Carolina.

February 17, 1982

Page 916

[277 S.C. 380] Larry D. Estridge, of Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

Ronald F. Barbare, of Lathan, Fayssoux, Smith & Barbare, of Greenville, for respondent.

HARWELL, Justice:

Appellant was found in contempt of court for failing to return his children to the respondent as required under a previous family court order. As a result, he was sentenced to one year of imprisonment, suspended upon paying to the respondent $14,960.43, the expenses incurred by respondent and her family as a direct consequence of the appellant's contemptuous conduct. We affirm in part, and modify in part.

Appellant and respondent were divorced on December 26, 1973, in South Carolina with custody of the two minor children in respondent. Appellant and respondent have each remarried, and appellant presently resides in Reno, Nevada, where he practices psychiatry. A 1973 South Carolina court order increased the appellant's alimony and child support payments and provided the appellant with a three week summer visitation with the children in Reno, Nevada.

Page 917

On June 9, 1979, the two children left for Nevada; they were to return to South Carolina on July 1, 1979, as agreed upon earlier by the parents and in accordance with the visitation privileges. However, the children were not returned to South Carolina, and on July 12, 1979, the respondent petitioned the family court for a Rule to Show Cause why appellant should not be held in contempt of court for failing to return the children at the end of the three weeks.

Although appellant did not personally appear at the Rule to Show Cause hearing on August 13, 1979, he was represented[277 S.C. 381] by his attorney. His attorney explained that he had retained the children beyond the agreed visitation period under the auspices of a Nevada family court order. The Ex Parte Order, which granted the appellant temporary custody of the children on July 2, 1979, was precipitated by appellant's filing a petition for temporary custody while the children were visiting him. Respondent testified that she and her husband and, later, her parents traveled to Nevada where they spent several weeks attempting to locate the children and to regain custody. Respondent also testified that she hired a private detective to locate the children and a Nevada attorney to petition a Nevada family court for return of the children. After a hearing on the merits on August 2, 1979, the Nevada court ordered that the children be returned to respondent and that the child custody matter be litigated in South Carolina rather than Nevada. (Appellant has appealed that order to the Nevada appellate court. That appeal is presenting pending. However, the respondent was required to post a $20,000 bond with the Nevada court in the event appellant succeeded in his appeal). On August 15, 1979, a South Carolina family court held appellant in contempt of court but withheld sentencing for thirty days in order to grant appellant an opportunity to request a hearing and present evidence in mitigation of his sentence.

On October 1, 1979, at the requested hearing, appellant testified that he had petitioned in Nevada for the temporary custody order because he was fearful of his children's emotional and psychological conditions. Respondent, her husband and her parents offered evidence at the hearing of the various expenses which they incurred during or in connection with their visits in Nevada. Expenses incurred by respondent and her husband, which included air fare, lodging, attorney's fees, and detective's fees, totaled $12,658.79. The respondent's parents incurred expenses of $2,301.64.

On October 12, 1979, the family court judge sentenced appellant to one year imprisonment for contempt of court, provided that he be allowed to purge himself of contempt by the payment of $14,960.43 to respondent and her family.

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