Tyrus Clark v. Amika Clark

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tyrus J. Clark, Respondent,

v.

Amika T. Clark, Appellant.

Appellate Case No. 2021-001169

Appeal From Greenville County
Rochelle Y. Conits, Family Court Judge

Opinion No. Op. 6103
Submitted October 1, 2024 – Filed March 5, 2025

AFFIRMED

Gregory Samuel Forman, of Gregory S. Forman, PC, of
Charleston, Liza Marie Deever, of Deever Law, LLC, of
Fountain Inn, both for Appellant.

Gwendolynn Wamble Barrett, of Barrett Mackenzie,
LLC, of Greenville, for Respondent.

THOMAS, J.: This appeal arises from an order of the family court awarding
Tyrus Clark (Father) attorney's fees, amending the Final Order and Divorce
Decree, denying Amika Clark's (Mother's) Motion to Reconsider the Order of
Contempt, and denying Mother's motion for attorney's fees. Mother argues the
family court erred in: (1) finding Mother in contempt for "making derogatory
comments about the other [parent] in any manner whereby the child might learn of
same, [failing to] keep[] the child in a moral and safe environment, conduct
detrimental to the child, and allowing the child access to age inappropriate
material," for publishing a book depicting the parties' marriage and divorce, (2)
precluding Father's eighteen-year-old daughter from testifying, and (3) finding
Mother in contempt for violating a restraining order that violates Mother's right to
free speech. Mother also argues if this court reverses the contempt finding against
her, this court should reverse the award of attorney's fees to Father and either
award Mother her fees for defending this contempt petition or remand the matter to
the family court. We affirm.
FACTS

Mother and Father were divorced in 2015 after a contested three-day trial. 1 During
their marriage, the parties had one child, Minor Child, in 2009. The Final Order
and Decree of Divorce (the Final Divorce Order) found exceptional circumstances
and granted the parties joint custody of Minor Child, with each parent having equal
time. The Final Divorce Order also placed various restrictions and restraints on
parental conduct as it pertained to the parents' conduct around Minor Child.
Section 7, Paragraph C of the Final Divorce Order (the disparagement provision)
read, "All parties are restrained against the use of profanity or making any
derogatory comments about or toward the other party, or allowing anyone else to
do so in front of the child, in any manner whereby the child might learn of the
same."
Mother appealed the family court's decision as to custody and visitation and sought
sole custody of Minor Child. In 2017, while the appeal was pending, both parties
filed Contempt Complaints against one another, resulting in a Final Order on
Contempt Actions in March 2017. This court affirmed the family court's shared
custody determination. Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (Ct. App.
2018).

Several months later, on April 27, 2019, Mother published a book (The Book)
depicting the circumstances surrounding the parties' marriage and divorce, as well
as other aspects of Mother's life; and it has been published, marketed, and sold by
national book retailers. The cover of The Book contains a photograph of Mother,
made up of puzzle pieces, with a black eye drawn with makeup. Included in The

1
At the commencement of filing for divorce, both parties alleged physical abuse
by the other party. In the Final Divorce Order, Judge Phillips found neither party
met the burden of proof necessary for a fault-based divorce on the ground of
physical abuse. Instead, the family court granted Father's request for a no-fault
divorce based on the ground of the parties' continuous separation for one year.
Book are allegations by Mother claiming physical, mental, emotional, and sexual
abuse at the hands of Father.

In addition to national book retailers, Mother promotes The Book on her personal
website. Mother also testified she was an ambassador at a private 501(c)(3) non-
profit that offers services to survivors of domestic abuse. Mother promotes her
book through the non-profit and local speaking engagements. Mother and Minor
Child are pictured on Mother's website, along with promotions for The Book and a
book authored by Minor Child published on December 19, 2019. 2 The "About" tab
on Mother's website reads, in part, "As a mother of a young daughter, Amika wants
to change the narrative and cycle for her daughter and give a voice to personal,
internal thoughts."

On March 30, 2020, Father filed a Contempt Complaint alleging Mother violated
multiple restraining orders in the Final Divorce Order, including the disparagement
provision, by writing and publishing The Book. At the hearing on the motion,
when asked about the specific allegations made in The Book, Mother testified the
contents of The Book were truthful and accurate descriptions of the emotional,
physical, and mental abuse she suffered at the hands of Father.3 She admitted to
writing Father was "full of bullshit and lies" during the marriage. Mother further
admitted that she accused Father of being mentally ill. Mother was asked about a
portion of The Book in which she discusses an affidavit she wrote for an expedited
hearing. Father's counsel asked Mother to confirm she wrote: "My shield became
impossible when her father screamed expletives and belligerent names at me
during story time which she witnessed her father follow me from room to room
berating me no matter how much I tried to remove myself from the situation.
Mother's bond is unwaveable [sic]. . . . She hears her dad yelling and screaming at
me, she comes to what she calls 'mommy's rescue.'" Mother also testified to a
poem she wrote entitled "Little Dick Mother" which was "a poem written out of

2
Minor Child's book is marketed and sold on Mother's website. The website
contains a tab labeled "About [Minor Child]" which provides a brief biography and
photograph of Minor Child.
3
Both parties cited physical abuse during the divorce proceedings. However, in
the Final Divorce Order, after considering witness testimony and the existence of
9-1-1 call logs, the family court noted "[Mother] called the police to the residence
numerous times during the marriage; however, [Father] was never charged with a
crime. [Father] called the police to the residence in March of 2014 which resulted
in [Mother] being charged with criminal domestic violence. That charge remains
pending."
anger . . . givin' an analogy to someone being lower than a snake's belly . . . and it
is comparing them to . . . their inability to satisfy me sexually . . . it's basically
saying . . . that I'm tired and I'm movin' on." Mother also admitted to writing in
The Book that Father is a "narcissistic, irrational, manipulative liar." When asked
if she was aware she was prohibited from making disparaging comments about
Father, Mother responded, "I haven't made disparaging comments to where [Minor
Child] would know about it." Despite the admitted testimony, Mother further
testified she had taken precautions so that Minor Child would not have access to
The Book.
At the hearing, Mother sought to introduce testimony from Father's eighteen-year-
old daughter (MCC) from a previous relationship. MCC lived in Arizona, and did
not have a relationship with Father. When asked why Mother wanted to present
MCC's testimony, counsel argued MCC would testify that she had never seen The
Book, and The Book had no bearing on MCC's mother's filing an Order of
Protection against Father on MCC's behalf. Counsel went on to argue:
The reason for calling the daughter is Mr. Clark's given
extensive testimony about how this book is going to have
a terrible effect on his, on his daughters and they're, uh,
they're gonna grow up to be drug addicts and everything
else, I want this court to understand that his daughters
and their relationship and how they turn out has to do
with his behavior, not with a book that they have no
knowledge of.

MCC's mother, Marita Collier, was allowed to testify regarding her and MCC's
past and relationship with Father. The court precluded MCC's testimony based on
relevance and stated, "MCC's proposed testimony . . . is not going to change what's
before me about whether or not your client is in contempt."

At the close of the contempt hearing, the family court requested that each party
brief the First Amendment issue that came up during Mother's testimony at the
hearing. Both parties complied.

On March 17, 2021, the family court issued its Order on Contempt. The family
court found, inter alia, The Book violated various provisions of the parties' prior
orders, including provisions against making derogatory comments about the other
in any manner whereby Minor Child might learn of same, failing to keep Minor
Child in a moral and safe environment, conduct detrimental to Minor Child, and
allowing Minor Child access to age inappropriate material, and held Mother in
criminal and civil contempt. The family court ordered Mother to cease and desist
from selling and disseminating The Book in any manner whatsoever and placed
other restrictions on Mother's use and handling of the material associated with The
Book. The family court sanctioned Mother by sentencing her to jail, suspended
upon her removal of The Book from the open market among other requirements,
ordering her to pay fines totaling $3,500.00, and ordering her to pay attorney's fees
and costs of $10,000.00 within ninety days of the order. In addressing the First
Amendment issue raised by Mother at trial, the family court's order held:

Under the First Amendment, this court may regulate the
content of constitutionally protected speech in order to
promote a compelling state interest as long as it chooses
the least restrictive means to further that interest, and the
Court finds that the current disparagement clause meets
that test. The court finds that if Mother's disparaging and
damag[ing] speech in the form of her book is left
unchecked and unfettered, as it has been since April 27,
2019 due to her egregious violation of this court's order
in writing and publishing this book, the harm to the
minor child is imminent and severe, and this court has a
compelling state interest in limiting Mother's speech in
the best interests of this child. This child is in
counseling, suffering from anxiety, which Mother
indicates is due to anxiety over divorce issues. Mother's
actions have proven, unequivocally, that without court
interference, she would continue to promote her book[,]
which would be detrimental to the emotional and
psychological welfare of this minor child. The court
finds that Mother's book is not constitutionally protected
free speech.

Mother filed a Notice of Motion and Motion to Reconsider Order on Contempt on
March 31, 2021. A hearing on the motions was held on August 12, 2021, and the
family court issued its Final Order on Contempt Actions on August 27, 2021. The
family court awarded Father $5,000 in attorney's fees for having to brief the
constitutional issue, and an additional $2,433.75 in attorney's fees for his motion to
reconsider. The family court further amended the parties' prior disparagement
provision to read:

All parties are restrained against the use of profanity or
making any derogatory comments about or toward the
other party or allowing anyone to do so in front of the
child/children, or in any manner whereby the child might
learn of the same, except where there exists a reasonable
expectation of privacy whereby the child reasonably
would not, could not, or should not learn of the same.

This appeal followed.

STANDARD OF REVIEW
"On appeal from the family court, the appellate court reviews factual and legal
issues de novo." Klein v. Barrett, 427 S.C. 74, 79, 828 S.E.2d 773, 776 (Ct. App.
2019). Despite this standard of review, we are mindful that the family court, which
saw and heard the witnesses, was in a better position to evaluate the credibility
of the witnesses and assign comparative weight to their testimony. Lewis v. Lewis,
392 S.C. 381, 385, 709 S.E.2d 650, 651-52 (2011). The appellant has the
burden of showing this court the greater weight of the evidence is against the
family court's findings. Id. at 392, 709 S.E.2d at 655. "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.
Appellate courts review the family court's evidentiary or procedural rulings using
an abuse of discretion standard. Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813
S.E.2d 486, 486 n.2 (2018).

LAW/ANALYSIS

A. Finding of Contempt Based on The Book

Mother argues the family court erred in finding Mother in contempt despite the
lack of evidence Minor Child had even been exposed to The Book. We disagree.

A party is guilty of contempt when he willfully disobeys a court order. Burns v.
Burns, 323 S.C. 45, 48, 448 S.E.2d 571, 572 (Ct. App. 1994). "A finding of
contempt is within the discretion of the trial court and will not be disturbed on
appeal unless it is without evidentiary support." Id. at 48, 448 S.E.2d at 572-73.
"A willful act is one 'done voluntarily and intentionally with the specific intent . . .
to fail to do something the law requires to be done . . . .'" Spartanburg Cnty. Dep't
of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988) (quoting
Black's Law Dictionary 1434 (5th Ed. 1979)). 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.

Mother argues the finding of contempt based on the disparagement provision of the
Final Divorce Order was erroneous because there was no evidence that Minor
Child knew of or read The Book. Mother asserts The Book was just a "personal
diary of sorts" and there was no evidence Mother ever discussed or exposed Minor
Child to The Book. Mother also argues there is no plausible way to know for
certain when and how Minor Child "might learn of" The Book or any disparaging
comments made towards Father. However, we find Minor Child's knowledge of
The Book or its contents is not a factor important to the analysis of Mother's
contempt. See Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d 515, 518 (Ct. App.
2008) (finding 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).
Here, we find there was ample evidence to support the court's finding of contempt.
The final contempt order in this case is thirty-five pages long. It explained the
family court judge reviewed all of the exhibits, considered the testimony, and
considered witness credibility. The order also summarizes and explains the rulings
on each issue. Mother does not deny writing or publishing The Book. Nor does
she deny that The Book was based on her own personal experiences. Further,
Mother does not argue that The Book is not a violation of the disparagement
provision. Instead, she raises, for the first time at trial, that the disparagement
provision is a prior restraint on her free speech that is not narrowly tailored to meet
a compelling state interest and is therefore unconstitutional.4 In its contempt order,
the family court cited to Mother and Minor Child both being pictured on Mother's
website, both promoting their respective books on Mother's website, the fact that
the mother of Father's older daughter has a copy of The Book and speaks to Minor
Child regularly, and the public promotion and sale of The Book online, to account
for its finding of contempt in Mother's publishing of The Book. We find the
prohibition of "making derogatory comments about the other in any manner
whereby the child might learn of same" was clearly violated by Mother; thus, the
family court did not err in finding her in contempt; accordingly, we affirm.

4
This section will first address just the family court's finding of contempt. Section
C addresses Mother's First Amendment argument in full.
B. Testimony of Father's Eighteen-Year-Old Daughter

Mother argues the family court abused its discretion in precluding MCC from
testifying, particularly when the family court based its contempt finding on what
MCC may have told Minor Child. We disagree.

"'Relevant evidence' means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Rule 401, SCRE. "Evidence
which is not relevant is not admissible." Rule 402, SCRE. Resolving questions of
credibility is the function of the family court judge who heard the witnesses'
testimony. Terwilliger v. Terwilliger, 298 S.C. 144, 147, 378 S.E.2d 609, 611 (Ct.
App. 1989). "Because the appellate court lacks the opportunity for direct
observation of witnesses, it should accord great deference to the [family] court
findings when matters of credibility are involved." Shirley v. Shirley, 342 S.C.
324, 329, 536 S.E.2d 427, 429 (Ct. App. 2000). "This is especially true in cases
involving the welfare and best interests of children." Aiken County Dep't. of Soc.
Servs. v. Wilcox, 304 S.C. 90, 93, 403 S.E.2d 142, 144 (Ct. App. 1991).

At the contempt hearing, the family court precluded MCC from testifying because
the court found her testimony was not relevant. The court properly found MCC's
testimony would not make the finding of Mother's contempt more or less probable.
MCC's potential testimony regarding whether she read The Book, or whether she
discussed The Book with Minor Child, had no bearing on Mother's willful
contempt of the court. MCC's testimony was not relevant or necessary to establish
Mother wrote The Book as Mother previously admitted to writing The Book.
Similarly, MCC's testimony was not required to establish what was in The Book as
The Book itself was in evidence. Further, the court allowed MCC's mother to
testify regarding her relationship with Father, her own allegations of domestic
violence, and the Order of Protection she filed in Arizona. Although MCC was
eighteen at the time of the hearing, the court considered MCC's age and
relationship with her father when it stated, "I'm not puttin' that 18-year-old on the
stand about her father, I'm not gonna do that."5

5
Rule 23(b) of the South Carolina Family Court Rules states that children should
not be offered as witnesses as to the misconduct of either parent, except, when, in
the discretion of the court, it is essential to establish the facts alleged.
In this case, MCC's testimony was not essential to establish Mother's willful
contempt, which we believe was sufficiently evidenced in the remainder of the
record. We find the court properly excluded the testimony of MCC.
C. Finding of Contempt and Mother's Free Speech

Mother argues the family court violated her First Amendment right to free speech
by finding her in contempt. We disagree.

The First Amendment commands, "Congress shall make no law . . . abridging the
freedom of speech." U.S. Const. amend. I. However, the government may
regulate the content of constitutionally protected speech in order to promote a
compelling interest as long as it chooses the least restrictive means to further that
interest. Sable Commc'ns of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). In
this case, we agree with the family court that the best interests of Minor Child are a
sufficient compelling interest to warrant restricting Mother's speech; thus, there
was no violation of Mother's rights under the First Amendment.
South Carolina courts have long held that "[i]n making a custody determination,
the child's welfare and best interest are the paramount and controlling
considerations of the court." Lewis, 400 S.C. at 364, 734 S.E.2d at 327. In making
an award of custody, there are several factors that the family court must consider
when determining what is in the best interest of the child. See S.C. Code Ann.§
63-15-240 (B). Inherent in several of those factors is a requirement of judicial
consideration of parents' behavior, which includes speech, as being relevant to the
child's best interest. § 63-15-240 (B)(6)-(8). The family court must also consider
whether there has been domestic violence involved. Furthermore, it must consider
any effort by one parent to disparage the other in front of the child as a factor in
awarding custody. § 63-15-240 (B)(8). We believe it would be inconsistent for
the family court to find that parents have a First Amendment right to make
disparaging comments about the other parent to the child, or in a manner in which
the child might learn of same, when it would not be in the child's best interest.

Mother raised, for the first time at trial, that the disparagement provision is a
content and viewpoint based prior restraint on her free speech that is not narrowly
tailored to meet a compelling state interest and is therefore unconstitutional. 6

6
The contempt order notes Mother did not appeal the constitutionality of the
disparagement provision's restriction on speech when it was written into the Final
Divorce Order. In fact, Mother never raised this defense until she testified at the
second half of the contempt hearing on January 6, 2021. Even then, the court
Specifically, she claims the disparagement provision "prohibits 'making any
derogatory comments about or toward the other party' but does not prohibit the
same character of comments about or toward any other person, including the child,
or praise concerning any party or the child." Because the disparagement provision
only applies to speech deemed to be derogatory, Mother argues it is a content-
based restriction that may only withstand challenge to its constitutionality based
upon a showing that the restriction is "necessitated" by a compelling government
interest that is narrowly tailored to serve that interest. Mother raises issues of
overbreadth and vagueness within the disparagement provision and argues it was
not narrowly tailored enough to withstand a constitutional challenge. However, the
family court seemingly took this into account when it amended the original
disparagement provision after contempt findings against Mother. The family court
amended the order from reading, "All parties are restrained against the use of
profanity or making any derogatory comments about or toward the other party, or
allowing anyone else to do so in front of the child, in any manner whereby the
child might learn of the same," to:
All parties are restrained against the use of profanity or
making any derogatory comments about or toward the
other party or allowing anyone to do so in front of the
child/children, or in any manner whereby the child might
learn of the same, except where there exists a
reasonable expectation of privacy whereby the child
reasonably would not, could not, or should not learn
of the same. (emphasis added).
The family court, in amending the disparagement provision, allowed for specific
instances of disparaging comments to be made by Mother so long as she had a
reasonable expectation of privacy at the time. According to the rewritten
disparagement provision, Mother has available forums for disparaging Father.

While South Carolina courts have not ruled on the issue of the constitutionality of
prior restrictions on parental speech, courts in some jurisdictions have held that the

notes, Mother did not attempt to defend her actions in writing and publishing the
disparaging book, she simply raised a constitutional defense against the provision
as a whole. Accordingly, the court found Mother wrote and published The Book
knowing fully that it was a violation of the disparagement provision in the Final
Divorce Order.
state's interest in protecting the best interests of a child is a compelling interest that
can justify limiting a parent's constitutional right to free speech. See, e.g., Borra v.
Borra, 756 A.2d 647, 650 (N.J. Super. 2000) (finding an injunction against a
father's efforts to contest a mother's application for country club membership was
proper in light of the state's parens patriae interest in the welfare of the children,
which was threatened by the parents' conflict over the membership; although the
father had a First Amendment right to speak his mind freely, "New Jersey courts
have consistently recognized that the 'best interests' of the children can be made
paramount to other fundamental rights").
The Massachusetts Supreme Judicial Court recently addressed the issue of parental
speech and prior restraints in Shak v. Shak. 7 In that case, there was an order
prohibiting both parents from posting disparaging remarks about each other and the
ongoing litigation on social media. The Massachusetts court ruled that an order
preventing a parent from posting about his child on social media violated the
father's constitutional right to freedom of speech. The court in Shak held the State
had a compelling interest in protecting children from exposure to disparaging
remarks from the parents but that more was required to justify such a significant
burden on free speech. We find Shak is distinguishable. First, the child in Shak
was a toddler, while Minor Child is a sophisticated eleven-year-old who has
written and published a book of her own. The court in Shak noted, "[a]s a toddler,
the child is too young to be able either to read or to access social media." 144
N.E.3d at 280. Here, Minor Child is capable of accessing the Internet and is able
to Google her own name, which inevitably leads to Mother's website promoting
The Book. The family court further found Minor Child's mental, physical, and
emotional wellbeing is unstable as evidenced by Mother taking her to counseling.
The court reasoned this makes Minor Child even more vulnerable to the grave
harm she would experience as a result of reading The Book.

The Kentucky Court of Appeals addressed prior restraints on parental speech in
Wedding v. Harmon.8 There, the father appealed an order of the Jefferson Family
Court granting the mother's motion to prohibit the father from harassing her by
copying and forwarding routine co-parenting emails to individuals within the
parties' local community and from sending mass emails to the parties' friends,
family and other members of their community regarding the parties' dissolution,
custody proceedings and co-parenting. The father's sole contention on appeal was
that the order was an unconstitutional infringement on his speech. 492 S.W.3d at

7
144 N.E.3d 274 (Mass. 2020).
8
492 S.W.3d 150 (Ky. Ct. App. 2016), as modified (Apr. 22, 2016).
151. The Kentucky court affirmed the order of the family court because: (1) the
father's emails were constitutionally unprotected conduct intended to harass, annoy
or alarm the mother; (2) the injunction was narrowly drawn to proscribe the father's
unprotected conduct; and (3) the best interests of the children were supported by
the family court's limitation on the father's speech. Id. at 153. Like the court in
Wedding, we find the contents of The Book are solely aimed at disparaging,
annoying, and ruining the reputation of Father.

We conclude the disparagement provision was narrowly tailored and the least
restrictive means to protect the best interests of Minor Child. The disparagement
provision was even altered to protect certain forums for Mother's disparaging
comments. The record evidences years of contention and attempts at parental
alienation by both parties. The amended disparagement provision properly
restricts the parties' unprotected speech so as to protect the best interests of Minor
Child. We find Mother's willful contempt of the Final Divorce Order provides
further justification for the necessity of the disparagement provision and find no
violation of her First Amendment right to free speech.
D. Attorney's Fees

Mother argues if this court reverses the finding of contempt, it should reverse the
award of attorney's fees to Father and either award Mother her fees for defending
this contempt petition or remand the matter back to the family court. Based on our
affirmance of the matter on the merits, we affirm the award of attorney's fees.

Based on the foregoing, the order of the family court is
AFFIRMED. 9

HEWITT and VINSON, JJ., concur.

9
We decide this case without oral argument pursuant to Rule 215, SCACR.