Noojin v. Noojin

Decision Date06 July 2016
Docket NumberOpinion No. 5423,Appellate Case No. 2014–001573
PartiesAshley Noojin, Appellant, v. Frank Noojin, III, Respondent.
CourtSouth Carolina Court of Appeals

John O. McDougall, of McDougall, Self, Currence & McLeod, LLP, of Columbia, and Katherine Carruth Goode, of Winnsboro, for Appellant.

J. Mark Taylor of Moore Taylor Law Firm, P.A., of West Columbia, for Respondent.

GEATHERS

, J.:

Ashley Noojin, Ph.D. (Mother) appeals the family court's order finding her in contempt and requiring her to pay Frank Noojin's, M.D. (Father) attorney's fees and costs. She argues the family court erred in (1) finding she willfully violated a court order; (2) excluding an exhibit; (3) limiting cross-examination of an expert witness; and (4) ordering her to pay Father's attorney's fees and costs and failing to award her attorney's fees and costs. We affirm.

FACTUAL/PROCEDURAL HISTORY

Father and Mother married in 1993 and divorced on April 8, 2011. Father is a surgeon, and Mother is a licensed clinical psychologist. Two children (Son and Daughter, collectively Children)1 were born of the marriage.

Prior to the final divorce hearing, the couple reached a child custody agreement wherein they shared joint custody, with Mother as the primary custodial parent and Father having frequent “nights of contact and visitation with the children.” The agreement outlined a “phase-in” visitation schedule from December 18, 2010, until February 19, 2011, with the regular schedule to begin on March 1, 2011. The regular schedule allotted visitation every other weekend and one evening dinner on the alternate weeks. The agreement provided Children could extend (1) the weekends to include Thursday or Sunday night when Friday or Monday was a holiday and (2) the weeknight dinner to an overnight visit. The agreement outlined specific visitation schedules for holidays, birthdays, summer vacations, and spring break.

Additionally, the agreement provided:

The visitation provided to Father in this Agreement shall take into consideration each child's wishes and desires in this regard, however, the children's wishes shall not be controlling unless otherwise specifically provided in this Agreement .... The parties agree to engage in family counseling with a therapist mutually agreeable to the parties. They shall attend family counseling once or twice per month and Father will use his weekday time with the children for this counseling, if necessary.

(emphasis added). In addition to the visitation schedule, the agreement provided:

Each party shall exert every reasonable effort to maintain free access and unhampered contact between the children and each of the parties and to foster a feeling of affections between the children and the other party . Neither party shall do anything which may estrange the children from the other party or injure the children's opinion as to his/her mother or father or which may hamper the free and natural development of the children's love and respect for the other party.

(emphases added). The parties also agreed to (1) refrain from making disparaging remarks about the other parent in the presence of Children and discourage third parties from doing so; (2) consult each other regarding Children's education, illness, health, welfare, and “other matters of similar importance affecting” Children; and (3) refrain from having physical or verbal confrontations or allowing another to do so in the presence of Children. On December 15, 2010, the family court approved the agreement and incorporated it into the final decree of divorce (the divorce order).

In February 2013, Father filed a complaint for contempt and the parties proceeded to a three-day contempt hearing.2 At the hearing, Father testified that after the standard visitation began on March 1, 2011, he did not receive regular visits. He outlined the limited visitation he received from 2011 to 2013. Specifically, in 2011,3 according to Father, he received one of the twenty dinners; one full weekend and four partial weekends of the twenty weekends; none of the five days allotted for spring break; one of the two days allotted for Father's Day; none of the five days allotted for Thanksgiving; and two of the ten days allotted for Christmas. In 2012, Father received one of the twenty-three dinners; two weekends of the twenty-five weekends; none of the three days for spring break; five hours of the two days allotted for Father's Day; and two days of the eight days allotted for Christmas. The contempt hearing began on April 30, 2013, and from January to April 2013, Father received one of the eight dinners, none of the eight weekends, and none of the three days allotted for spring break.4

Following the hearing, the family court found Mother in contempt for failure to comply with the divorce order and ordered her to pay Father $41,375.84 in attorney's fees and costs. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in finding Mother in contempt?

2. Did the family court err in excluding a letter Father wrote to Children on December 13, 2010?

3. Did the family court err in limiting cross-examination of a witness?

4. Did the family court err in awarding attorney's fees and costs?

STANDARD OF REVIEW

“In appeals from the family court, [appellate courts] review[ ] factual and legal issues de novo.” Simmons v. Simmons , 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011)

. [W]hile retaining the authority to make our own findings of fact, we recognize the superior position of the family court judge in making credibility determinations.” Lewis v. Lewis , 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). “Stated differently, de novo review neither relieves an appellant of demonstrating error nor requires us to ignore the findings of the family court.” Id. at 388–89, 709 S.E.2d at 654 (emphasis removed). Further, a finding of contempt rests within the sound discretion of the family court. DiMarco v. DiMarco , 393 S.C. 604, 607, 713 S.E.2d 631, 633 (2011). “Such a finding should not be disturbed on appeal unless it is unsupported by the evidence or the judge has abused his discretion.” Id .

LAW/ANALYSIS

I. Willful Contempt

Mother raises several grounds as to how the family court erred in its finding of contempt. We have reduced those arguments to their analytical essence.

At the outset, we note that because the family court was in a better position to assess the credibility and demeanor of the witnesses, we defer to the family court as to any alleged error regarding the specific factual findings. After observing these parties over the course of a three-day hearing, the family court was in a better position to evaluate their credibility and assign comparative weight to their testimony. See S.C. Dep't of Soc. Servs. v. Mary C. , 396 S.C. 15, 26, 720 S.E.2d 503, 509 (Ct. App. 2011)

(holding it is proper to defer to the family court even if conflicting evidence is presented on appeal as long as ample evidence in the record supports the family court's findings and conclusions); Pinckney v. Warren , 344 S.C. 382, 387–88, 544 S.E.2d 620, 623 (2001) (holding the appellant carries the burden of demonstrating error in the family court's findings of fact); Lewis , 392 S.C. at 388–89, 709 S.E.2d at 654 (stating the appellate court generally defers to the factual findings of the family court regarding credibility because the family court is in a better position to observe the witness and his or her demeanor).

Within that framework, we find the record supports the family court finding Mother in contempt for her willful disobedience of the divorce order. “Contempt is a consequence of the willful disobedience of a court order.” Tirado v. Tirado , 339 S.C. 649, 654, 530 S.E.2d 128, 131 (Ct. App. 2000)

. “A willful act is one ‘done voluntarily and intentionally with the specific intent ... to fail to do something the law requires to be done ....’ Id . (alterations by court) (quoting Spartanburg Cty. Dep't of Soc. Servs. v. Padgett , 296 S.C. 79, 82–83, 370 S.E.2d 872, 874 (1988) ). A finding of contempt, therefore, must be reflected in a record that is “clear and specific as to the acts or conduct upon which such finding is based.” Curlee v. Howle , 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982). “Contempt is an extreme measure; this power vested in a court is not lightly asserted.” Bigham v. Bigham , 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975). “Prior to invoking this power, the court must necessarily consider the ability of the defendant to comply with the order.” Id. “A party seeking a contempt finding for violation of a court order must show the order's existence and facts establishing the other party did not comply with the order.” Abate v. Abate , 377 S.C. 548, 553, 660 S.E.2d 515, 518 (Ct. App. 2008). “Civil contempt must be shown by clear and convincing evidence.” DiMarco , 393 S.C. at 607, 713 S.E.2d at 633

.

When considered in the aggregate, Mother's actions and her failure to act when necessary demonstrated a willful violation of the divorce order. The facts of this case are similar to Eaddy v. Oliver , 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct. App. 2001)

, in which a father argued the family court erred in failing to find a mother in contempt for her violation of a visitation order. During the family court hearing in Eaddy, the father testified to ongoing problems with the mother in arranging visitation and stated there had been periods of several months when he did not see the child. Id. at 43, 545 S.E.2d at 832. He stated plans were made for the child without his knowledge and the child went on other social outings instead of visiting him as provided in the order. Id . The father testified regarding the mother's refusal to cooperate or keep him informed about the child. Id. at 43, 545 S.E.2d at 833. He stated he had made several attempts to discuss his lack of visitation with the mother but the mother “responded by telling him [the...

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  • Taylor v. Taylor
    • United States
    • South Carolina Court of Appeals
    • July 7, 2021
    ...502 S.E.2d at 89."Contempt is an extreme measure; this power vested in a court is not lightly asserted." Noojin v. Noojin , 417 S.C. 300, 306, 789 S.E.2d 769, 772 (Ct. App. 2016) (quoting Bigham v. Bigham , 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975) ). "One may not be convicted of contem......
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    • United States
    • South Carolina Court of Appeals
    • August 30, 2023
    ... ... respondent to establish his defense and inability to ... comply." Noojin v. Noojin , 417 S.C. 300, 307, ... 789 S.E.2d 769, 772 (Ct. App. 2016) (quoting Eaddy ... v ... Oliver , 345 S.C. 39, 42, 545 S.E.2d 830, ... ...
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    • South Carolina Court of Appeals
    • May 27, 2020
    ...was in a better position to evaluate their credibility and assign comparative weight to their testimony"); Noojin v. Noojin, 417 S.C. 300, 306, 789 S.E.2d 769, 772 (Ct. App. 2016) ("Contempt is a consequence of the willful disobedience of a court order." (quoting Tirado v. Tirado, 339 S.C. ......
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