Sun v. Sun

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

Liling Sun, Respondent,

v.

Joseph Sun, Appellant.

Appellate Case No. 2010-162926

Appeal From Beaufort County
Robert S. Armstrong, Family Court Judge

Unpublished Opinion No. 2014-UP-336
Submitted May 1, 2014 – Filed September 24, 2014

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Joseph Sun, of Bluffton, pro se.

Liling Sun, of Beaufort, pro se.

PER CURIAM: The family court held Joseph Sun in criminal contempt and civil
contempt for violating two separate orders prohibiting him from going onto the
premises of the marital home, and it sentenced him consecutively to six months'
imprisonment for each conviction. Joseph appeals, arguing the family court: (1)
denied him due process by not granting his request for a continuance; (2) erred in
holding him in both criminal contempt and civil contempt and imposing
consecutive sentences; (3) erred in rejecting his defense of double jeopardy; and
(4) erred in admitting his confession over his objection. We affirm the criminal
contempt conviction, reverse the civil contempt conviction, and remand to the
family court.1

I. Continuance

The issue of whether the family court denied Joseph due process by not granting
his request for a continuance is not preserved. See Doe v. Roe, 369 S.C. 351, 375-
76, 631 S.E.2d 317, 330 (Ct. App. 2006) (stating an issue must be both raised to
and ruled upon by the family court in order to be preserved for appellate review);
id. at 376, 631 S.E.2d at 330 ("An issue is not preserved where the [family] court
does not explicitly rule on an argument and the appellant does not make a Rule
59(e)[,SCRCP,] motion to alter or amend the judgment."); State v. Langford, 400
S.C. 421, 432, 735 S.E.2d 471, 477 (2012) ("Constitutional questions must be
preserved like any other issue on appeal."); Bakala v. Bakala, 352 S.C. 612, 625,
576 S.E.2d 156, 163 (2003) ("A due process claim raised for the first time on
appeal is not preserved.").

II. Contempt

The family court found Joseph in both civil and criminal contempt. First, the
family court found Joseph in criminal contempt for violating a June 2009 order that
prohibited him from "harassing, interfering[,] or bothering [Liling Sun] at . . . [her]
place of residence[,]" and an August 2009 order "restraining [him] from going to
[the marital home] unless requested by the sequestrator." The family court found
beyond a reasonable doubt that Joseph violated the June 2009 order when police
found Joseph hiding in a garage in Liling's residence on March 10, 2010, and it
sentenced him to six months' imprisonment for the criminal contempt. We affirm
this conviction and sentence because it is supported by the record. See Simmons v.
Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) (recognizing the standard
of review in an appeal from the family court is de novo); Burgess v. Burgess, 407
S.C. 98, 103, 753 S.E.2d 566, 569 (Ct. App. 2014) ("An appellate court will affirm
the decision of the family court unless the decision is controlled by an error of law

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
or the appellant satisfies the burden of showing the preponderance of the evidence
actually supports contrary factual findings by the appellate court.").

Second, the family court held Joseph in civil contempt for actions that arose from
Joseph's presence at the marital home between March 16 and 17, 2010. The family
court previously issued an order (March 12, 2010 order) that provided it would
sentence Joseph to six months' imprisonment "if he entered the [marital] home for
any reason in the future." The family court found Joseph violated the March 12,
2010 order because he entered the marital home between March 16 and 17, 2010,
and wrote, "You Die," in Chinese on a note pinned to a mattress in the home.
Thereafter, the family court held Joseph in civil contempt and sentenced him to six
months' imprisonment, consecutive to his criminal contempt sentence.

The family court incorrectly classified this contempt charge as civil, when it
actually was criminal contempt. See Ex parte Jackson, 381 S.C. 253, 258, 672
S.E.2d 585, 587 (Ct. App. 2009) ("The determination of whether contempt is civil
or criminal hinges on the underlying purpose of the contempt ruling."). In
Jackson, this court concluded the defendant's contempt was criminal because she
received a definite term of ninety days' imprisonment and had no opportunity to
purge herself of the sanctions if she complied with the court order. Id. at 259, 672
S.E.2d at 587-88. Here, the second contempt imposed was criminal because the
purpose of the sanctions was to punish Joseph for violating the March 12, 2010
order. Namely, the family court punished Joseph because he violated the order
prohibiting him from entering the marital home. Moreover, the punishment
imposed—six months' imprisonment—was unconditional because Joseph did not
have an opportunity to purge himself of the sanctions. See id. at 258-59, 672
S.E.2d at 587 ("Punishment for civil contempt is remedial in that sanctions are
conditioned on compliance with the court's order, whereas an unconditional
penalty is considered criminal contempt because it is solely and exclusively
punitive in nature."). Because the punishment was for a definite term, Joseph's
offense was criminal contempt, and the family court erred in classifying this
contempt as civil.

III. Double Jeopardy

Joseph next argues his second contempt charge violates the Double Jeopardy
Clause of the United States and South Carolina Constitutions because he was
previously held in contempt for the same conduct by the magistrate's court. See
State v. Brandt, 393 S.C. 526, 538, 713 S.E.2d 591, 597 (2011) ("The Double
Jeopardy Clauses of the United States and South Carolina Constitutions operate to
protect citizens from being twice placed in jeopardy of life or liberty for the same
offense."). The family court determined the second contempt charge did not
violate double jeopardy because the second contempt was civil. In light of our
finding that the second contempt charge was criminal, we remand this issue to the
family court to determine whether the second contempt charge is barred by the
Double Jeopardy Clause.

IV. Confession

We find evidence supports the family court's determination that Joseph voluntarily
confessed. See State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240, 252 (2001)
("When reviewing a trial court's ruling concerning voluntariness, [an appellate
c]ourt does not reevaluate the facts based on its own view of the preponderance of
the evidence, but simply determines whether the trial court's ruling is supported by
any evidence."); id. ("The trial court's factual conclusions as to the voluntariness of
a statement will not be disturbed on appeal unless so manifestly erroneous as to
show an abuse of discretion."); State v. Myers, 359 S.C. 40, 47, 596 S.E.2d 488,
492 (2004) ("A confession is not admissible unless it was voluntarily made.");
Saltz, 346 S.C. at 135-36, 551 S.E.2d at 252 ("A statement obtained as a result of
custodial interrogation is inadmissible unless the suspect was advised of and
voluntarily waived his rights under [Miranda v. Arizona, 384 U.S. 436 (1966)].");
State v. Von Dohlen, 322 S.C. 234, 243, 471 S.E.2d 689, 694-95 (1996) ("A
determination of whether a confession was given voluntarily requires an
examination of the totality of the circumstances."); Saltz, 346 S.C. at 136, 551
S.E.2d at 252 ("The trial [court]'s determination of the voluntariness of a statement
must be made on the basis of the totality of the circumstances, including the
background, experience, and conduct of the accused."); Von Dohlen, 322 S.C. at
243, 471 S.E.2d at 695 ("The question is whether the defendant's will was
overborne when he confessed."); Saltz, 346 S.C. at 136, 551 S.E.2d at 252 ("A
statement induced by a promise of leniency is involuntary only if so connected
with the inducement as to be a consequence of the promise.").

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FEW, C.J., and SHORT and GEATHERS, JJ., concur.