Moore v. Moore

• Decision Date: 11 February 2008
• Docket Number: No. 26429.,26429.
• Parties: Donna MOORE, Respondent, v. Lance MOORE, Jr., Appellant.
• Court: South Carolina Supreme Court

657 S.E.2d 743

376 S.C. 467

Donna MOORE, Respondent, v. Lance MOORE, Jr., Appellant.

No. 26429.

Supreme Court of South Carolina.

Heard November 15, 2007.

Decided February 11, 2008.

Gregory Samuel Forman, of Charleston, and Norbert E. Cummings, Jr., of Cummings Law Firm, of Summerville, for Appellant.

Anthony P. LaMantia, III, Allison J. LaMantia, of LaMantia Law Firm, and Mary Kathryn Schmutz, all of Charleston, for Respondent.

Assistant Attorney General Warren V. Ganjehsani, of Columbia, for Amicus Curiae.

Justice BEATTY.

In this direct appeal, Lance Moore, Jr. (Husband) appeals the family court's decision entering an Order of Protection from domestic abuse in favor of Donna Moore (Wife). Husband challenges the court's decision and underlying statutory authority based on due process and equal protection grounds. We affirm as modified.

FACTUAL/PROCEDURAL HISTORY

On October 1, 2006, officers with the Mount Pleasant Police Department were summoned to the Moores' home after 911 personnel received a call from the Moores' fifteen-year-old son. The parties' son reported that Husband had become physically abusive with him and his mother and threatened them with a weapon. Police arrested Husband and charged him with criminal domestic violence (CDV). The next day, Husband was released on bond and ordered not to go near the Moores' residence. According to Wife, Husband drove by the residence and at one point entered the yard to remove several items. On October 3, 2006, Wife filed an action pursuant to section 20-4-50¹ of the "Protection from Domestic Abuse Act" (the Act) requesting an emergency hearing and an Order of Protection against Husband. At 7:50 p.m. on October 4, 2006, Husband was served in Sumter with a summons to appear for an emergency hearing scheduled for 9:00 a.m. on October 5, 2006, in Charleston.

At the hearing, Husband and Wife both appeared without counsel. Initially, the family court judge inquired whether Wife wanted a continuance in order to obtain counsel. Wife declined, stating that she wanted to obtain an immediate restraining order against Husband. When Husband requested a continuance so that he could obtain counsel, the judge denied the request, and stated "[t]his is an Emergency Hearing, [Wife] doesn't want to continue this case, we got to go forward today." Throughout the proceeding, Husband reluctantly responded to the judge's questions and indicated that he did not want to proceed without the assistance of counsel.

After hearing Wife's testimony and questioning the parties, the judge found Husband had abused Wife and their son. As a result, the judge issued an Order of Protection which, inter alia: restrained Husband from committing any further abuse or from having any contact with Wife and the parties' two minor children; awarded Wife temporary custody of the parties' children; ordered Husband to pay temporary child and spousal support; and awarded Wife temporary possession of the marital home. In addition to ordering CDV counseling and invoking the assistance of the Department of Social Services for the minor children, the judge also ordered Husband to relinquish any weapons in his possession to the Charleston County Sheriff's Department until further order of the family court.

On October 13, 2006, Husband, who was then represented by counsel, filed a motion for reconsideration. The family court judge held a hearing on the motion. At the hearing, Husband's counsel alleged the issuance of the order violated due process and denied him equal protection based on the following grounds: (1) Husband did not receive "ample notice and an opportunity to answer [Wife's] charges" with the assistance of counsel; and (2) Husband's request for a continuance was denied whereas Wife was offered a continuance to retain counsel. In making these arguments, Husband's counsel claimed the order, specifically the finding of physical abuse, was a final order which could have future ramifications on Husband's employment and his right to possess weapons. Husband also characterized the proceeding under section 20-4-50(a) as "quasi-criminal" because "it takes away any citizen's rights without due process without a full trial." Based on these arguments, Husband's counsel requested a full hearing on the merits. Counsel, however, recognized that a Temporary Restraining Order could be granted to protect Wife until a final resolution was reached on all of the issues.

By order dated December 15, 2006, the family court denied Husband's motion for reconsideration. The court found Husband's due process rights were not violated by the short-time frame preceding the emergency hearing given the statute specifically permitted the court to conduct the hearing within twenty-four hours after Wife's petition was served. Additionally, the court held the denial of Husband's motion for a continuance did not violate due process because the statute was intended to protect the alleged victim of domestic abuse. Because Wife chose to proceed with the hearing, the court believed that allowing Husband to delay the hearing "would defeat the clear legislative intent of the statute which is to provide alleged victims of abuse immediate access to the Court for orders of protection." Finally, the court found Husband's equal protection claim to be without merit. Relying on the terms of the statute, the court found the "Act affords protection for males, females and minor children alike." The court believed that the emergency hearing would not have been conducted differently "if the sexes of the parties were switched." Subsequently, Husband filed this appeal.

I. DUE PROCESS

Husband challenges the issuance of the family court's order on two due process grounds. Given the permanency and collateral consequences inherent in a finding of physical abuse, Husband first contends the provision of section 20-4-50 which permits a hearing within twenty-four hours of the service of the petition violates due process. As a second ground, Husband asserts the family court's denial of his motion for a continuance constituted an abuse of discretion and violated his right to due process. Specifically, he claims the short notice and denial of a continuance prohibited him from procuring counsel.

Although Husband does not differentiate in his argument between substantive and procedural due process, we believe both are implicated in the issues he raises on appeal. Accordingly, both are addressed in our analysis.

No person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; S.C. Const. art. I, § 3. "In order to prove a denial of substantive due process, a party must show that he was arbitrarily and capriciously deprived of a cognizable property interest rooted in state law." Sloan v. S.C. Bd. of Physical Therapy Examr's, 370 S.C. 452, 483, 636 S.E.2d 598, 614 (2006); see Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (recognizing that before due process guarantees are implicated, there must be a deprivation by the government of constitutionally protected interest).

Procedural "[d]ue process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses." Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 235, 642 S.E.2d 565, 567 (2007).

In Sloan v. South Carolina Board of Physical Therapy Examiners, this Court explained:

Procedural due process requirements are not technical; no particular form of procedure is necessary. In re Vora, 354 S.C. at 595, 582 S.E.2d at 416. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Wilson, 352 S.C. at 452, 574 S.E.2d at 733 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). The requirements in a particular case depend on the importance of the interest involved and the circumstances under which the deprivation may occur. S.C. Dept. of Soc. Servs. v. Beeks, 325 S.C. 243, 246, 481 S.E.2d 703, 705 (1997).

Sloan v. S.C. Bd. of Physical Therapy Examr's, 370 S.C. 452, 484, 636 S.E.2d 598, 615 (2006). "`Where important decisions turn on questions of fact, due process often requires an opportunity to confront and cross-examine adverse witnesses.'" S.C. Dep't of Soc. Servs. v. Wilson, 352 S.C. 445, 452, 574 S.E.2d 730, 734 (2002) (quoting Brown v. S.C. State Bd. of Educ., 301 S.C. 326, 329, 391 S.E.2d 866, 867 (1990)).

Applying the above-outlined analysis to the facts of the instant case, we find Husband's substantive due process rights were implicated by the proceedings established in section 20-4-50. See State ex rel. Williams v. Marsh, 626 S.W.2d 223, 230 (Mo.1982)(en banc) (finding property and liberty interests of respondent to a petition for order of protection are implicated and protection of procedural due process is appropriate). Specifically, Husband's constitutionally protected liberty and property interests are subject to temporary deprivation as a result of the issuance of an Order of Protection. Once the order is issued Husband, i.e., a respondent to a petition, is subject to: the immediate loss of his children; reduction in his financial resources if child/spousal support is ordered and immediate loss of possession of the marital residence.² Husband also immediately becomes subject to criminal prosecution or contempt proceedings if he violates the Order of Protection. Additionally, Husband is required to immediately relinquish any weapons in his possession or be subject to federal prosecution pursuant to 18 U.S.C.A. § 922.³ If Husband is employed in law enforcement, the inability to possess a weapon may impact his ability to perform his job.⁴

Significantly, not only is Husband subject to immediate deprivation of constitutionally protected interests, he may also suffer future ramifications as a consequence of the...