Andrew Desilet v. Amanda Desilet

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

Andrew Davis Desilet, Appellant,

v.

Amanda Leslie Desilet, Respondent.

Appellate Case No. 2021-000727

Appeal From Lexington County
W. Greg Seigler, Family Court Judge

Unpublished Opinion No. 2024-UP-029
Heard September 12, 2023 – Filed January 24, 2024

REVERSED

Martin Rast Banks, of St. Matthews, and Larry Conrad
Marchant, Jr., of Columbia, both for Appellant.

Alicia Staley Higgins, of Burriss & Ridgeway, and Carrie
Ann Warner, of Warner Law Firm, LLC, both of
Columbia, for Respondent.

PER CURIAM: Andrew Desilet (Husband) appeals the family court's order
sentencing him to six months' imprisonment for violating a contempt order by
directly contacting Amanda Desilet (Wife). Husband argues the family court erred
because (1) it applied the incorrect burden of proof, (2) the record lacked
evidentiary support for its finding, and (3) the method and procedure of the
contempt hearing violated his due process rights. We reverse.

FACTS AND PROCEDURAL HISTORY

Husband and Wife married on September 27, 2015, in Lexington County. On
October 5, 2019, Husband stated he wanted a separation, and on November 1,
2019, he moved out. Wife filed an action for separate support and maintenance,
and Husband filed an answer and counterclaim.

On April 3, 2020, the family court issued a temporary order that included a mutual
restraining order prohibiting both parties from having any direct or indirect contact
except through their attorneys. The temporary order stated,
The parties are strictly restrained from contacting the
other party directly or indirectly except through his or her
attorney. Neither party shall contact the other party
through a third party (other than his or her attorney)[.]
The parties are strictly restrained from coming around the
other's home, place of business or any other location
where the other is likely to be seen. The parties are
strictly restrained from harassing, threatening, cursing, or
stalking the other party, directly or indirectly,
electronically or in person.

On June 18, 2020, Wife filed an amended rule to show cause complaint alleging
Husband violated the temporary order by posting disparaging remarks about her on
Facebook and sending her threatening text messages.

On December 7, 2020, a rule to show cause hearing was held before the family
court. At the hearing, Husband entered a plea allocution in which he admitted he
violated the temporary order by posting on Facebook and texting, thus directly
contacting Wife. The plea allocution stated Husband understood he could be
detained if he "violate[d] the restraining order that is in place even one more time
in directly contacting [Wife] as restricted by the Temporary Order." The family
court issued a contempt order on December 7, 2020 (the December Order), which
found Husband in civil contempt and imposed a suspended sentence of six months'
imprisonment. The December Order stated "[Husband] is placed under an Order
which may result in [him] being detained on a Bench Warrant if he violates the
restraining orders that are in place even one more time in directly contacting
[Wife] as restricted by the Temporary Order." The December Order also
reaffirmed the restraining orders contained in the temporary order and required
Husband to wear an ankle monitor while under the terms of his bond.

On June 1, 2021, Wife filed an affidavit in support of a bench warrant, alleging
that since she moved to a new home on April 25, 2021, she had seen Husband
drive past her home at least twelve times. She stated her counsel informed her that
on April 28, 2021, Husband's ankle monitor had been removed. Wife's affidavit
also noted she had taken eight photos of Husband's car passing her house since she
moved. On June 2, 2021, an order for a bench warrant was issued and a hearing
was scheduled for June 30, 2021.

On June 17, 2021, Wife gave a statement to the Richland County Sheriff's
Department alleging Husband had driven by her home more than twenty times
since April 25. The Richland County Sheriff's Department issued arrest warrants
for Husband for stalking and violating an order of protection, and on June 24,
2021, Husband was arrested and transferred to Lexington County Detention
Center.
On June 30, 2021, Wife filed a complaint for a rule to show cause for emergency
relief, requesting the court order Husband to comply with the previous restraining
orders and serve his six-month sentence. Wife provided the family court with
time-stamped photos depicting Husband driving by her residence twenty-one times
between May 6, 2021, and June 21, 2021.

The same day, the family court conducted a virtual hearing regarding the bench
warrant. Due to technical issues, the family court continued the hearing until the
next day, when the parties could appear in person. While determining when to
reschedule the hearing, Husband's counsel argued against moving the hearing to
the following day, stating, "[M]y client's been in jail for six days already and I
believe it is bogus." He did not argue postponing the hearing was a due process
violation.
At the hearing, Husband acknowledged he drove by Wife's house, but he alleged
he did not know she lived there because she did not inform him she had moved.
He claimed he drove by Wife's house on the route to his church and that he
regularly drove around listening to music to relax. Husband contended he planned
to take a job in Missouri, which he would not do if he was trying to stalk Wife.
Husband also argued this was a criminal contempt action, and therefore the burden
of proof was beyond a reasonable doubt. He acknowledged he previously admitted
to being in civil contempt of the temporary order and that the December Order
found him to be in civil contempt. The family court stated the December Order
gave Husband the opportunity to purge his six-month sentence by suspending the
sentence unless he violated the temporary order and December Order again.
Wife indicated Husband had felony stalking charges pending in Richland County
from his arrest on June 24, 2021, which occurred after she made a statement to the
Richland County Sheriff's Department.

On July 27, 2021, the family court issued an order regarding the bench warrant,
finding Husband violated the temporary order and the December Order when he
drove by Wife's house at least twenty-two times between May 6, 2021, and June
23, 2021, and ordering him to serve what had been the suspended six-month
sentence. The family court noted one of the documents Husband presented to
show Wife's name was not associated with her new residence included Wife's
maiden name, and it found that driving by Wife's house "would be out of
[Husband]'s way" when driving to his church. The family court held that driving
by Wife's house constituted direct contact, which violated the "strict prohibition"
of the temporary order and the December Order. The family court stated, "[T]he
[c]ourt's intent is not to punish [Husband] as much as it is to provide relief that
[Wife] has requested, namely the provisions of the restraining order to live free of
harassment, stalking, and threats." The family court also stated that whether the
burden was clear and convincing or beyond a reasonable doubt, it was difficult to
believe Husband unintentionally drove by Wife's house twenty-two times. This
appeal followed.

STANDARD OF REVIEW

"[T]he proper standard of review in family court matters is de novo . . . ." 1 Stoney
v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). "Thus, this [c]ourt has
jurisdiction to find facts in accordance with its own view of the preponderance of
the evidence; however, this broad scope of review does not require the [c]ourt to
disregard the findings of the family court, which is in a superior position to make

1
As Justice Hill stated in Campione v. Best, we recognize that the standard of
review for contempt orders may be abuse of discretion. 435 S.C. 451, 458, 868
S.E.2d 378, 381 (Ct. App. 2021) ("We review contempt orders for abuse of
discretion, meaning we may only disturb them if they are based on incorrect law or
inadequate evidence."). Even if we narrowed the scope of review of the issues on
appeal to abuse of discretion, we would decide the issues the same.
credibility determinations." Crossland v. Crossland, 408 S.C. 443, 451, 759
S.E.2d 419, 423 (2014).

LAW AND ANALYSIS

I. Contempt

Husband argues Wife failed to establish that he made direct, willing, and knowing
contact with her beyond a reasonable doubt. He asserts Wife cited no case law and
provided no corroborating testimony to support her claim that he directly contacted
her by driving by her house. Husband maintains driving by Wife's residence
without knowing she lived there did not constitute direct contact. Husband further
argues this was a criminal contempt action, and therefore the family court erred in
applying the civil contempt burden of proof of clear and convincing evidence
instead of the criminal contempt standard of beyond a reasonable doubt. We agree
in part.

We hold the family court erred in finding that Husband directly contacted Wife by
driving by her residence when the December Order did not clearly state what
constituted "direct contact." See Stoney, 422 S.C. at 596, 813 S.E.2d at 487
(stating the standard of review in family court matters is de novo); see also Curlee
v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982) ("Contempt results from
the willful disobedience of an order of the court, and 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."). The December Order stated Husband could be
detained on a bench warrant "if he violate[d] the restraining orders that are in place
even one more time in directly contacting [Wife] as restricted by the Temporary
Order." The December Order did not state Husband would be detained if he
violated any of the restraints set forth in the temporary order; rather, it only
provided he would be detained if he "violate[d] the restraining orders . . . in
directly contacting [Wife]." 2 Based on the language of the December Order, we

2
We acknowledge that Husband's conduct of driving by Wife's residence likely
violated the restraining orders contained in the temporary order, which restricted
Husband and Wife from "stalking the other party, directly or indirectly,
electronically or in person" and "from coming around the other's home." We also
find Husband's claim that he did not know Wife's new address—which is not on
the way to Husband's church—strains credulity. However, these specific
hold it is arguably unclear that Husband driving by Wife's home constituted direct
contact. Thus, we hold the family court erred in finding Husband violated the
December Order when it did not clearly and specifically state what constituted
direct contact. See Curlee, 277 S.C. at 382, 287 S.E.2d at 918 ("Contempt results
from the willful disobedience of an order of the court, and 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."). Accordingly, we reverse the family court's
order sentencing Husband to six months' imprisonment for violating the December
order by directly contacting Wife. 3

II. Due Process

Husband argues the family court's decision to delay the hearing due to poor video
quality and Wife's scheduling issues violated his due process rights. He contends
his counsel's statement, "[M]y client's been in jail for six days already and I believe
it is bogus" was a sufficient objection to preserve the issue. We hold Husband's
due process argument is not preserved for appellate review. See Washington v.
Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992) (holding an issue is
not preserved for appellate review when an appellant does not raise an issue at trial
or through a Rule 59(e), SCRCP, motion).

CONCLUSION
Based on the foregoing, the family court's order is
REVERSED.

MCDONALD and VINSON, JJ., and BROMELL HOLMES, A.J., concur.

restrictions were not expressly included in the December Order that the family
court found Husband violated when it sentenced him to six months' imprisonment.
3
Because we reverse the family court's order on the ground that the December
Order was not clear and specific as to what constituted direct contact, we need not
reach the issue of whether this action constituted civil or criminal contempt. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (providing that an appellate court need not address remaining
issues when the resolution of a prior issue is dispositive).