Poston v. Poston

• Decision Date: 08 June 1998
• Docket Number: No. 24802.,24802.
• Court: South Carolina Supreme Court
• Parties: Wilma R. POSTON, Respondent, v. William S. POSTON, Petitioner.

331 S.C. 106

502 S.E.2d 86

Wilma R. POSTON, Respondent, v. William S. POSTON, Petitioner.

No. 24802.

Supreme Court of South Carolina.

Heard February 17, 1998.

Decided June 8, 1998.

Rehearing Denied July 17, 1998.

John O. McDougall and Patricia L. Forbis, both of McDougall & Self, L.L.P., Sumter, for petitioner.

Frederick K. Jones, Florence; and Barbara Tolson-Haywood, Hartsville, for respondent.

BURNETT, Justice:

In this domestic action, respondent, Wilma R. Poston, was adjudged guilty of contempt for failing to abide by prior orders of the family court. The Court of Appeals reversed and remanded finding the judge applied the wrong standard of proof in holding respondent in criminal contempt. Poston v. Poston, Op. No. 96-UP-431 (S.C.Ct.App. filed November 26, 1996) (Cureton, J. concurring and dissenting). We affirm as modified in part; reverse in part; and remand.

FACTS

The parties were married in 1970. They had four children. In 1992, the family court issued a decree of separate maintenance and support and awarded custody of the children to petitioner. In 1993, the family court terminated respondent's visitation and barred her from having any personal and telephone contact with two of the parties' minor children. The court also restrained respondent from going within one block of the marital home where the children resided and from going to their schools, sporting events and church events.

In September 1994, the family court issued an order and rule to show cause following petitioner's filing of a contempt petition. At the hearing, petitioner produced evidence demonstrating respondent violated the 1993 order by visiting the home and telephoning the children on several occasions. In its order issued in 1995, the court found respondent willfully violated the 1993 order. The family court ruled as follows:

[Respondent] is in willful contempt. She shall be sentenced to 120 days incarceration but may purge herself of contempt by strict compliance with this Order and the prior Order [December 21, 1993]. An additional restriction shall be imposed to prohibit [respondent] from coming within 50 yards of the children; and [respondent] shall be required to pay the attorney's fees as ordered herein.

(emphasis added).

The Court of Appeals reversed this order finding the family court judge held respondent in criminal contempt and applied the wrong standard of proof. The Court of Appeals remanded the matter to the family court for further proceedings. Id. Judge Cureton disagreed with the majority's holding that respondent was held in criminal contempt. However, he recommended reversing the family court order to the extent it can be read to impose sanctions in advance for a violation of the new restriction included in the contempt order issued in 1995. Id.

ISSUES

I. Did the Court of Appeals err in finding the family court held respondent in criminal contempt?

II. Did the Court of Appeals err in vacating the award of attorney's fees to petitioner?

DISCUSSION

I.

Petitioner argues the Court of Appeals erred in finding respondent was held in criminal contempt. We agree.

The major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised, including the nature of the relief and the purpose for which the sentence is imposed. 17 Am.Jur.2d Contempt § 9 (1990); see also Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988)

; State v. Magazine, 302 S.C. 55, 393 S.E.2d 385 (1990),

abrogated on other grounds by, State v. Easier, 327 S.C. 121, 489 S.E.2d 617 (1997). The purpose of civil contempt is "to coerce the defendant to do the thing required by the order for the benefit of the complainant." Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911). The primary purposes of criminal contempt are to preserve the court's authority and to punish for disobedience of its orders. State v. Bevilacqua, 316 S.C. 122, 447 S.E.2d 213 (Ct.App.1994). "If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Hicks v. Feiock, 485 U.S. at 631, 108 S.Ct. at 1429, 99 L.Ed.2d at 731 (quoting Gompers v. Buck's Stove & Range Co., 221 U.S. at 441, 31 S.Ct. at 498, 55 L.Ed. at 806).

"An unconditional penalty is criminal in nature because it is `solely and exclusively punitive in nature.'" Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330 U.S. 585, 593, 67 S.Ct. 918, 922, 91 L.Ed. 1117, 1124 (1947)). "The relief `cannot undo or remedy what has been done nor afford any compensation and the contemnor cannot shorten the term by promising not to repeat his offense.'" Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31 S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of imprisonment, ... it is punitive if the sentence is limited to imprisonment for a definite period." Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429, 99 L.Ed.2d at 731; see also State v. Magazine, supra. If the sanction is a fine, it is punitive when it is paid to the court. However, a fine that is payable to the court may be remedial when the contemnor can avoid paying the fine simply by performing the affirmative act required by the court's order. Hicks v. Feiock, supra; State v. Magazine, supra.

In civil contempt cases, the sanctions are conditioned on compliance with the court's order. Hicks v. Feiock, supra; State v. Magazine, supra.

"The conditional nature of the punishment renders the relief civil in nature because the contemnor `can end the sentence and discharge himself at any moment by doing what he had previously refused to do.'" Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31 S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court's order...." Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429, 99 L.Ed.2d at 731. "Those who are imprisoned until they obey the order, `carry the keys of their prison in their own pockets.'" Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330 U.S. at 590, 67 S.Ct. at 921, 91 L.Ed. at 1123). If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court's order. Hicks v. Feiock, supra; State v. Magazine, supra; see also In re General Motors Corp., 61 F.3d 256 (4th Cir.1995),

opinion after remand, 110 F.3d 1003 (4th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 61, 139 L.Ed.2d 24 (1997) (remedies for civil contempt include ordering the contemnor to reimburse the complainant for losses sustained and for reasonable attorney's fees); 17 Am.Jur.2d Contempt § 237 (1990) (court may impose a fine payable to the aggrieved party as compensation for losses sustained); Annotation, Right of Injured Party to Award of Compensatory Damages or Fine in Contempt Proceeding, 85 A.L.R.3d 895 (1978); United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Curlee v. Howle, 277 S.C. 377, 287 S.E.2d 915 (1982) (contempt was civil where appellant could purge himself of one year sentence by paying respondent's expenses she incurred in recovering the children from appellant). Compare with State v. Magazine, supra (because contemnor could not purge himself of the contempt by merely complying with the court's order where contemnor was ordered to serve one year in prison or pay to the court a fine of $1500.00 the contempt was criminal).

Civil contempt must be proven by clear and convincing evidence. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (burden of proof in civil contempt proceeding is clear and convincing); In re General Motors Corp., supra (civil contempt must be proven by clear and convincing evidence); 17 Am.Jur.2d Contempt § 207; see also Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983)

(willfulness of the violation must be shown by clear and specific acts or conduct); Curlee v. Howle, supra (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). In a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt. State v. Bowers, 270 S.C. 124, 241 S.E.2d 409 (1978); State v. Bevilacqua, supra.

The United States Supreme Court has held a defendant charged with a serious as opposed to a petty criminal contempt is entitled to a jury trial. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974)

(a contemnor had no right to a jury trial where the sentence imposed is confinement for six months or less); Frank v. U.S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (lengthy probation was not serious enough to entitle contemnor to a jury trial); Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975) (payment of a $10,000 fine was not serious). But see Ex Parte Griffin, 682 S.W.2d 261 (Tex.1984) (a $104,000 fine and a sentence to jail for 30 days was a serious offense entitling the contemnor to a jury trial). A civil contempt proceeding does not require a jury trial. Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) (no jury trial is required for a civil contempt proceeding even though the resulting imprisonment may be long because the contemnor may avoid the sanction by complying with the court's order); see also 17 Am.Jur.2d Contempt ...