Haley Burns v. Julius Burns

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Haley S. Burns, Plaintiff,

v.

Julius W. Burns, III, Respondent.

Of whom South Carolina Department of Social Services
is the Appellant.

Appellate Case No. 2021-000935

Appeal From Cherokee County
Timothy E. Madden, Family Court Judge

Unpublished Opinion No. 2023-UP-156
Submitted February 1, 2023 – Filed April 19, 2023

REVERSED

James Victor McDade, of Doyle Tate & McDade, PA,
and Andrew Troy Potter, both of Anderson, for
Appellant.

J. Benjamin Stevens and Stephen Lundy Chryst, Jr., both
of Offit Kurman, of Spartanburg, for Respondent.
PER CURIAM: The South Carolina Department of Social Services (DSS)
appeals the family court's order sanctioning it for violating prior orders. On
appeal, DSS argues Family Court Judge Madden erred (1) in awarding sanctions
without a properly filed and served rule to show cause, specific findings of
criminal contempt, and proof beyond a reasonable doubt; (2) in failing to review
the transcript of the hearing in which Family Court Judge Thigpen issued the oral
bench order that DSS allegedly violated; (3) in finding he had jurisdiction over
DSS when DSS had not been served with pleadings or added as a party in the
domestic action; and (4) failing to make specific findings as to damages in
determining the amount of the sanctions. We reverse.

1. We hold Judge Madden committed an error of law by sanctioning DSS without
requiring Father's compliance with Rule 14, SCRFC. See Holmes v. Holmes, 399
S.C. 499, 504, 732 S.E.2d 213, 216 (Ct. App. 2012) (stating the appellate court
"will affirm the decision of the family court in an equity case unless its decision is
controlled by some error of law or the appellant satisfies the burden of showing the
preponderance of the evidence actually supports contrary factual findings by th[e
appellate] court"). Judge Madden sanctioned DSS because he found a Cherokee
County DSS (CCDSS) caseworker (Caseworker) willfully violated Judge
Thigpen's orders. This alleged violation of a court order falls squarely within the
definition of constructive contempt. See Widman v. Widman, 348 S.C. 97, 119,
557 S.E.2d 693, 705 (Ct. App. 2001) ("The power to punish for contempt is
inherent in all courts and is essential to preservation of order in judicial
proceedings." (quoting In re Brown, 333 S.C. 414, 420, 511 S.E.2d 351, 355
(1998))); id. ("Contempt results from the willful disobedience of a court order . . .
."); Miller v. Miller, 375 S.C. 443, 455, 652 S.E.2d 754, 760 (Ct. App. 2007)
("Constructive contempt is contemptuous conduct occurring outside the presence
of the court." (quoting State v. Kennerly, 331 S.C. 442, 451, 503 S.E.2d 214, 219
(Ct. App. 1998))). Accordingly, we hold that under the plain language of Rule 14,
Father was required to file a petition for a rule to show cause in order to initiate
contempt proceedings against DSS. See Rule 14(a), SCFCR ("Except for direct
contempt of court, contempt of court proceedings shall be initiated only by a rule to
show cause duly issued and served in accordance with the provisions hereof."
(emphasis added)); See Rule 14(a), note ("The rule to show cause provided herein
is for contempt of court arising from failure to comply with the Court's orders,
decrees or judgments and for enforcement thereof. This form of contempt is
known as constructive contempt of court."); Kosciusko v. Parham, 428 S.C. 481,
496, 836 S.E.2d 362, 370 (Ct. App. 2019) ("In interpreting the meaning of
[procedural rules], the [c]ourt applies the same rules of construction used to
interpret statutes." (alterations in original) (quoting Ex parte Wilson, 367 S.C. 7,
15, 625 S.E.2d 205, 209 (2005))); id. ("If a rule's language is plain, unambiguous,
and conveys a clear meaning, interpretation is unnecessary and the stated meaning
should be enforced.").

2. Moreover, we hold Judge Madden erred in sanctioning DSS based on
Caseworker visiting Children's school after the October 15, 2020 hearing before
Judge Thigpen. See Taylor v. Taylor, 434 S.C. 307, 316, 863 S.E.2d 335, 340 (Ct.
App. 2021) ("Contempt results from the willful disobedience of a court order, and
before a court may find a person in contempt, the record must clearly and
specifically reflect the contemptuous conduct." (quoting Widman v. Widman, 348
S.C. 97, 119, 557 S.E.2d 693, 705 (Ct. App. 2001))). It appears the family court
relied to its detriment upon a statement in Father's sanctions filings that
Caseworker visited Children's school after Judge Thigpen ruled from the bench
that CCDSS had a conflict in investigating this matter. Our review of the October
15, 2020 transcript of the hearing before Judge Thigpen reveals no such ruling. At
the hearing, Judge Thigpen asked counsel for CCDSS, "Do you feel like you have
a conflict or your office has a conflict?" Counsel responded, "Speaking with the
caseworker I believe that out of an abundance of caution we would agree with [the
guardian ad litem's] motion for this to be transferred due to the potential conflict."
Judge Thigpen then discussed possible county DSS offices that might take the
investigation and asked DSS counsel, "Assuming I do that, can you make that
referral and—probably York [County] would be the closest?" DSS counsel agreed;
Mother's counsel had no objection to York County; Father's counsel expressed a
preference for Greenville County; and Mother's counsel noted either York County
or Greenville County DSS would be fine. Father's counsel then immediately
moved on to the other issues being discussed at the emergency hearing. No further
discussion of transferring the case occurred (at least not on the record), and Judge
Thigpen made no oral ruling on the conflict or investigative transfer issues raised.

A review of the October 15 hearing transcript reveals the following findings in the
family court's sanctions order lack evidentiary support: 1) Judge Thigpen "ruled
from the bench on the issue of the conflict of CCDSS and this family"; 2) Judge
Thigpen, in the presence of CCDSS counsel and Caseworker "ordered the transfer
of the investigation of the CCDSS case to another county"; and 3) "[b]oth [CCDSS
counsel and Caseworker] heard his ruling on the issue of the conflict." Simply put,
at the time of Caseworker's October 15 school visit, there was no order—oral or
written—in place to support a consideration of contempt or an award of sanctions.
See id. at 317, 863 S.E.2d at 340 ("One may not be convicted of contempt for
violating a court order which fails to tell him in definite terms what he must do.
The language of the commands must be clear and certain rather than implied."
(quoting Phillips v. Phillips, 288 S.C. 185, 188, 341 S.E.2d 132, 133 (1986))); id.
"A court need go no further in reviewing the evidence in a contempt action when
there is uncertainty in the commands of an order." (quoting Phillips, 288 S.C. at
188, 341 S.E.2d at 133).

Because the above issues are dispositive, we decline to address DSS's remaining
issues. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (holding when the disposition of a prior issue is
dispositive, an appellate court need not address remaining issues).

REVERSED. 1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.