Curlee v. Howle

• Decision Date: 17 February 1982
• Docket Number: No. 21642,21642
• Citation: 287 S.E.2d 915,277 S.C. 377
• Court: South Carolina Supreme Court
• Parties: Jessica R. CURLEE, Respondent, v. Jerry A. HOWLE, Appellant.

Page 915

287 S.E.2d 915

277 S.C. 377

Jessica R. CURLEE, Respondent, v. Jerry A. HOWLE, Appellant.

No. 21642.

Supreme Court of South Carolina.

Feb. 17, 1982.

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.

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 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.

First, appellant alleges that he was not in contempt of court for retaining the children in Nevada because he had a right to rely on his pending action and subsequent order of temporary custody from the Nevada family court. Nevertheless, a previous order from a South Carolina family court required that the children be returned to respondent at the expiration of the three weeks visit. ¹

The 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. McLeod v. Hite, 272 S.C. 303, 251 S.E.2d 746 (1979); State v. Goff, 228 S.C. 17, 88 S.E.2d 788 (1955). In the present case, the appellant willfully disregarded a previous South Carolina family court order. He obtained possession of the children solely under visitation privileges granted him under the South Carolina order. He knew that the order obligated him to return the children to the respondent in South Carolina at the end of the three weeks. The court did not find any justifiable explanation for his failure to comply at the end of the three week period. Contempt results from the willful disobedience of an order of the court, and before a person may be held in contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based. Edwards v. Edwards, 254 S.C. 466, 176 S.E.2d 123 (1970); Bigham v. Bigham, 264 S.C. 101, 212 S.E.2d 594 (1975). The record clearly reflects that the appellant was held in contempt for disobeying the previous South Carolina family court order.

Appellant cites Cannon v. Cannon, 260 S.C. 204, 195 S.E.2d 176 (1973) for support of his argument that his conduct was not contemptuous. In Cannon, the former spouses had entered into a separation agreement in contemplation of the wife and children moving to Connecticut. The agreement gave the husband custody of the children in South Carolina for two months each summer. While in Connecticut to pick up the children, the husband was served with process in a divorce action instituted in Connecticut by the wife. Once the husband returned to South Carolina with the children, he petitioned the South Carolina court for divorce and custody while his wife's action in Connecticut was pending. This Court held that because the children were physically present in South Carolina when the action was commenced by the father, the South Carolina court acquired jurisdiction to determine the issue of custody. However, in that case, there was no prior order of any court; there was merely a separation agreement. In contrast, by a previous South Carolina order, appellant was required to return the children at the end of the three week visitation. Under these circumstances, the court did not err in holding appellant in contempt. ²

Appellant next alleges that even if he is in contempt, his sentence was excessive. His sentence of one year imprisonment was suspended upon his paying the respondent's expenses incurred as a result of the contemptuous conduct. We conclude that under the circumstances, the conditional sentence of one year imprisonment was proper. An issue raised on appeal directly from the bench was not addressed by appellant in his brief or during his oral argument. However, because appellant generally excepted to the sentence as excessive, we consider it here. The issue is whether a judge may impose a conditional sentence of more than six months without allowing the contemnor a jury trial.

In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Supreme Court held that prosecutions for serious criminal contempts are subject to the jury provisions of Art. III, Section 2 of the Constitution, and of the Sixth Amendment, which is made binding upon the states by virtue of the due process clause of the Fourteenth Amendment. In Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2689, 41 L.Ed.2d 912 (1974) the Court held that defendants in state criminal trials who are committed to imprisonment of more than 6 months are entitled to a jury trial.

However, in 1966, a majority of the U. S. Supreme Court directly addressed the matter of a jury in proceedings for civil contempt. In Shillitani v. U. S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), two petitioners had been sentenced to two years imprisonment for contempt of court with the proviso that they would be released upon answering questions put to them by a grand jury. Their contemptuous conduct consisted of not testifying before a grand jury after both had been given immunity. One demanded a jury trial, but the request was denied; on both two year conditional sentences were imposed by a judge without the aid of a jury. The Court held that the conditional nature of the sentences rendered each of the actions a civil contempt proceeding, for which indictment and jury trial are not constitutionally required. The character and purpose of the proceedings rendered them civil rather than criminal contempt proceedings. The conditional imprisonment was for the obvious purpose of compelling the two grand jury witnesses to obey the Court's orders to testify. ...