Wilson v. Walker, No. 3172.

• Court: Court of Appeals of South Carolina
• Writing for the Court: HEARN, Chief
• Docket Number: No. 3172.
• Parties: Matthew Henry WILSON, Appellant, v. Linda Scruggs WALKER, Respondent.
• Decision Date: 22 May 2000

340 S.C. 531
532 S.E.2d 19

Matthew Henry WILSON, Appellant,
v.
Linda Scruggs WALKER, Respondent

No. 3172.

Court of Appeals of South Carolina.

Heard April 10, 2000.

Decided May 22, 2000.

340 S.C. 534

William G. Yarborough, III, of Ashmore & Yarborough, of Greenville, for appellant

Jeffrey A. Merriam, of Carter, Smith, Merriam, Rogers & Traxler, of Greenville, for respondent.

HEARN, Chief Judge:

Matthew Henry Wilson (Father) appeals from two family court orders holding him in contempt and awarding Linda Scruggs Walker (Mother) attorney fees. Father also appeals a third family court order denying his motion for a continuance on the underlying action and awarding Mother additional attorney fees. We reverse and remand.

FACTS/PROCEDURAL HISTORY

Father and Mother divorced in July 1991. The divorce order granted Mother custody of the parties' minor child, granted Father visitation rights, and required Father to pay child support.

In May 1997, Father brought an action to modify his visitation schedule based on changed circumstances. Specifically,

340 S.C. 535

Father relocated to North Carolina and alleged Mother prevented him from exercising all his visitation rights as set forth in the divorce order. Mother answered, admitting Father's visitation schedule should be modified. Mother also counterclaimed, seeking an increase in child support

In July 1997, Mother served Father with two sets of interrogatories and a request for document production. Mother subsequently filed a motion to compel, not based on her discovery requests, which were not yet due, but seeking an order requiring Father to produce the standard financial declaration. See Rule 20(a), SCRFC. Prior to Mother's motion to compel, Father's attorney moved to be relieved as counsel.

The family court held a hearing on the motion to compel and the motion to be relieved. Father did not attend the hearing, allegedly due to medical reasons. On August 4, 1997, the family court granted Father's attorney's motion to be relieved and Mother's motion to compel, ordering Father to submit a sworn financial declaration on or before September 1, 1997. Even though not requested in any written motion, the court further ordered Father to respond to Mother's discovery requests or be sanctioned fifty dollars for every day after September 1, 1997 that he failed to submit the financial declaration or respond to the interrogatories and the document request previously filed by Mother. Father did not appeal this order.

Father alleges the August 1997 order was not served on him until August 26, 1997, only six days before compliance with the order was due. Nevertheless, acting pro se, Father submitted answers to interrogatories, the document request, and his financial declaration by mail on September 2, 1997. Mother's attorney received the information on September 5, 1997.

Almost two months later, without any further correspondence with Father, Mother petitioned the court for a rule to show cause why Father should not be held in contempt for failure to comply with the August 1997 order by furnishing incomplete responses to the interrogatories and document request. After a hearing the family court found Father's responses inadequate, held him in willful contempt for failing to comply with the terms of the August 1997 order, and

340 S.C. 536

ordered Father incarcerated for nine months, suspended upon payment to Mother of $5,100.00 in fines and $1,175.00 in attorney fees within thirty days of the order. Further, the family court ordered Father not to leave the state without first posting an appearance bond. Father timely appealed this order

Approximately two months later, Mother petitioned the family court for a second rule to show cause for Father's alleged continued failure to comply with the August 1997 order and his failure to comply with the mandates of the December 1997 order. After a hearing, the family court issued an order on April 16, 1998, holding Father in contempt for violating both prior orders, ordering Father to pay Mother an additional $5,500 in fines and an additional $850 in attorney fees, withdrawing suspension of Father's nine month sentence of incarceration as set forth in the December 1997 order, sentencing Father to a consecutive three month term of incarceration, and ordering Father's arrest. As a result of the two contempt orders, Father was fined a total of $10,600¹ and ordered to pay $2,025 in attorney fees. Father timely appealed this order.

While Father's appeals from the contempt orders were pending, the family court held a hearing on Father's underlying action to modify his visitation schedule and Mother's counterclaim for increased child support. When the hearing began, Father's attorney moved for a continuance until after resolution of Father's appeals from the contempt orders. The family court denied the motion.

Father's attorney called no witnesses during the trial, but did submit an amended financial declaration which attested Father was no longer employed and had no income. Mother's testimony proposed changes to Father's visitation schedule and requested that the family court increase Father's child support obligation based on his September 1997 financial declaration, which reflected a $4,583 per month income, rather than the declaration submitted at the hearing. Mother also

340 S.C. 537

suggested prohibiting Father from exercising visitation until Father resolved the outstanding bench warrant against him.

The family court issued an order modifying Father's visitation schedule but ordered Father's visitation rights suspended pending resolution of the outstanding bench warrant for his arrest. The court also increased Father's child support obligation based on Father's earning capacity as set forth in his September 1997 financial declaration and gave no weight to Father's August 1998 financial declaration. Finally, the court awarded Mother $6,844.65 in attorney fees. The family court denied Father's...