Joan Fancy v. Howard Fancy

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

Joan Fancy, Respondent,

v.

Howard Fancy, Appellant.

Appellate Case No. 2016-000085

Appeal From Dorchester County
Nancy C. McLin, Family Court Judge

Unpublished Opinion No. 2017-UP-382
Submitted September 1, 2017 – Filed October 18, 2017

AFFIRMED

Howard Fancy, of Goose Creek, pro se.

Ashley Elizabeth Ameika, of Ameika Law, LLC, of
North Charleston, for Respondent.

PER CURIAM: Howard Fancy appeals the family court's civil contempt order
for nonpayment of support, arguing this court should reverse the family court's
finding of contempt because (1) his counsel was ineffective at the contempt
hearing and throughout the case; (2) the family court violated his rights under the
Sixth and Fourteenth Amendments of the United States Constitution; (3) the
preponderance of the evidence did not show he willfully violated a court order and
instead he proved beyond a reasonable doubt he was unable to pay $1,000 per
month in alimony; (4) he proved his wife failed to declare all her assets; and (5) the
family court violated the rules of professional conduct. We affirm.1

1. A claim for ineffective assistance of counsel does not apply to a civil contempt
hearing before the family court. See State v. Carpenter, 277 S.C. 309, 310, 286
S.E.2d 384, 384 (1982) (providing claims of ineffective assistance of counsel must
be asserted under the Post-Conviction Relief Act); S.C. Code Ann. § 17-27-20
(2014) (stating the Post-Conviction Relief Act applies to persons convicted of or
sentenced for a crime).

2. The constitutional protections afforded to criminal defendants under the Sixth
Amendment did not apply to the rule to show cause hearing in this case because
the family court found Fancy in civil contempt. See Miller v. Miller, 375 S.C. 443,
457, 652 S.E.2d 754, 761 (Ct. App. 2007) (stating contempt is civil if the person
found in contempt may purge the sanctions imposed by the court by complying
with the court order); see also U.S. Const. amend. VI (recognizing that "[i]n all
criminal prosecutions, the accused shall enjoy" additional constitutional
protections); DiMarco v. DiMarco, 393 S.C. 604, 609, 713 S.E.2d 631, 634 (2011)
(recognizing that the protections of the Sixth Amendment may be applicable to
criminal contempt proceedings).

3. The family court did not abuse its discretion in finding Fancy in contempt. See
Miller, 375 S.C. at 454, 652 S.E.2d at 760 ("The determination of contempt
ordinarily resides in the sound discretion of the [family court]."); id. at 443, 452,
652 S.E.2d at 759 ("An appellate court should reverse a decision regarding
contempt 'only if it is without evidentiary support or the trial [court] has abused
[its] discretion.'" (quoting Durlach v. Durlach, 359 S.C. 64, 70, 652 S.E.2d 754,
759 (Ct. App. 2007))). A prima facie case for contempt existed because the family
court's temporary order required Fancy to make alimony payments, and Fancy
failed to make payments. See Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d
897, 899 (Ct. App. 2004) ("In a proceeding for contempt for violation of a court
order, the moving party must show the existence of a court order and the facts
establishing the respondent's noncompliance with the order."). Further, Fancy
failed to establish a defense or an inability to comply with the court order because
although he claimed he could not afford to pay alimony, evidence of Fancy's
earnings support the family court's finding Fancy could have paid some or all of
the alimony required by the temporary order. See Miller, 375 S.C. at 454, 652

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
S.E.2d at 760 (providing that after a prima facie case for contempt is established,
the burden shifts to the contemnor to establish a defense or inability to comply
with the court order).

4. Any issues regarding whether Fancy's wife failed to disclose assets in her
financial declaration before the family court's temporary hearing are irrelevant to
whether Fancy failed to comply with a court order. A contempt hearing is not the
appropriate time to raise issues regarding the family court's temporary order. See
Terry v. Terry, 400 S.C. 453, 457, 734 S.E.2d 646, 648 (2012) ("Perceived errors
in family court temporary orders are to be redressed . . . at the final hearing.").

5. This court lacks jurisdiction over allegations of judicial misconduct. See Rule
3(b)(1), RJDE, Rule 502, SCACR ("The Commission [on Judicial Conduct] has
jurisdiction over judges regarding allegations that misconduct occurred before or
during service as a judge and regarding allegations of incapacity during service as
a judge."); Rule 27, RJDE, Rule 502, SCACR (allowing for review by the supreme
court of the hearing panel's decision in judicial disciplinary matters).

AFFIRMED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.