Moseley v. Mosier, No. 21983

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHARWELL; LEWIS; LEWIS
Citation306 S.E.2d 624,279 S.C. 348
PartiesDeborah C. MOSELEY, Appellant, v. John R. MOSIER, Respondent.
Docket NumberNo. 21983
Decision Date30 August 1983

Page 624

306 S.E.2d 624
279 S.C. 348
Deborah C. MOSELEY, Appellant,
v.
John R. MOSIER, Respondent.
No. 21983.
Supreme Court of South Carolina.
Aug. 30, 1983.

Page 625

[279 S.C. 350] Jan L. Warner and C. Dixon Lee, III, Sumter, for appellant.

J. Kennedy DuBose, Jr., of Holland & DuBose, Camden, and Henry Hammer, of Hammer & Bernstein, Columbia, for respondent.

HARWELL, Justice:

Appellant alleges the family court erred in deferring respondent's sentence for contempt of court. Respondent replies that the family court did not have jurisdiction to hold him in contempt. We reverse the case and remand for a new trial.

Appellant petitioned the family court to hold respondent in contempt for failing to pay the full amount of child support as provided in the parties' separation agreement. The agreement, which provided $150 a week child support, was incorporated but not merged into the divorce decree. The family court found respondent in contempt but deferred sentencing. Because of a change in circumstances, it ordered him to pay $500 of the $2000 child support arrearages, attorney's fees of $200, and $75 a week future child support. It did not forgive any past [279 S.C. 351] or future remaining support

Page 626

payments but ordered that all arrearages would accrue and accumulate. Appellant alleges the court erred by altering the previous support obligation of the separation agreement. She argues that the obligation arises out of contract and cannot be judicially altered. On the other hand, respondent contends that if the separation agreement governs his support obligation, the family court was without jurisdiction to hold him in contempt. He alleges appellant's remedies are found in contract law.

Initially, we address the child support jurisdiction issue. Family courts may always modify child support upon a proper showing of a change in either the child's needs or the supporting parent's financial ability. Smith v. Smith, 275 S.C. 494, 272 S.E.2d 797 (1980). Today we clarify the issue by stating that family courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies. Therefore, on remand the family court has jurisdiction to determine what is the best interests of the child.

Next, we address the contempt issue. We agree with respondent that the family court erred in finding him in contempt for failure to comply fully with the separation agreement. Contempt results from the willful disobedience of a court's order. The family court order fails to state facts showing that respondent willfully failed to pay child support. Before a court finds a person in contempt, the record must clearly and specifically reflect the contemptuous conduct. Curlee v. Howle, 277 S.C. 377, 287 S.E.2d 915 (1982). Contempt occurs when a parent ordered to pay child support voluntarily fails to pay. When the parent is unable to make the required payments, he is not in contempt. The record in this case reveals that respondent faithfully paid each week as much child support as he could afford.

Furthermore, the second element of contempt, a court order, is absent in this case. Respondent's child support obligation arises out of a separation agreement, not a court order. Even if respondent willfully failed to pay, the court could not hold him in contempt. On remand, appellant's cause of action will be for breach of contract. If the court determines respondent is able to comply, it may order him to specifically perform the terms of the agreement. If he does [279 S.C. 352] not, the court then could hold him in contempt of its order. On the other hand, if the court determines that respondent cannot comply with the agreement, it may judicially set a smaller amount of temporary child support. In those circumstances, we believe the child's best interests are met by setting a smaller amount than by sentencing the child's supporter for contempt.

Both parties have briefed and argued extensively the subject matter jurisdiction issue of the separation agreement. Their divorce decree theoretically disposed of the issue by stating the agreement was approved by the court and incorporated without merger into the final decree. Words of art such as "ratified", "adopted", "approved",...

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94 practice notes
  • Davis v. Davis, No. 4188.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ..."may agree to any terms they wish as long as the court deems the contract to have been entered fairly, voluntarily and reasonably." 279 S.C. 348, 353, 306 S.E.2d 624, 627 The parties may specifically agree that the amount of alimony may not ever be modified by the court; they may contract o......
  • Toni v. Toni, No. 20010084.
    • United States
    • United States State Supreme Court of North Dakota
    • December 5, 2001
    ...435 N.W.2d 501, 503-04 (Minn.1989) (upholding right to waive modification before right was legislatively established); Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624, 627 (1983); Nichols v. Nichols, 162 Wis.2d 96, 469 N.W.2d 619, 623 (1991). Other jurisdictions, through court decisions, ha......
  • Turner v. Rogers, No. 10–10.
    • United States
    • United States Supreme Court
    • June 20, 2011
    ...that he is not in contempt, say, by showing that he is not able to make the required payments. See 131 S.Ct. 2513 Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983) ("When the parent is unable to make the required payments, he is not in contempt"). If he fails to make the requ......
  • Hudson v. Hudson, No. 3154.
    • United States
    • Court of Appeals of South Carolina
    • April 24, 2000
    ...agreed upon tax exemption does not "fall[ ] within the ambit of the pervasiveness of the Supreme Court's statement in Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983)] that family courts shall have `continuing jurisdiction to do what is in the best interest of the child regardless of ......
  • Request a trial to view additional results
94 cases
  • Davis v. Davis, No. 4188.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ..."may agree to any terms they wish as long as the court deems the contract to have been entered fairly, voluntarily and reasonably." 279 S.C. 348, 353, 306 S.E.2d 624, 627 The parties may specifically agree that the amount of alimony may not ever be modified by the court; they may contract o......
  • Toni v. Toni, No. 20010084.
    • United States
    • United States State Supreme Court of North Dakota
    • December 5, 2001
    ...435 N.W.2d 501, 503-04 (Minn.1989) (upholding right to waive modification before right was legislatively established); Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624, 627 (1983); Nichols v. Nichols, 162 Wis.2d 96, 469 N.W.2d 619, 623 (1991). Other jurisdictions, through court decisions, ha......
  • Turner v. Rogers, No. 10–10.
    • United States
    • United States Supreme Court
    • June 20, 2011
    ...that he is not in contempt, say, by showing that he is not able to make the required payments. See 131 S.Ct. 2513 Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983) ("When the parent is unable to make the required payments, he is not in contempt"). If he fails to make the requ......
  • Hudson v. Hudson, No. 3154.
    • United States
    • Court of Appeals of South Carolina
    • April 24, 2000
    ...agreed upon tax exemption does not "fall[ ] within the ambit of the pervasiveness of the Supreme Court's statement in Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983)] that family courts shall have `continuing jurisdiction to do what is in the best interest of the child regardless of ......
  • Request a trial to view additional results

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