Smith v. Smith

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

James Randall Smith,       
Respondent,

v.

Karen P. Smith,       
Appellant.

Appeal From Georgetown County

H. E. Bonnoitt, Jr., Family Court Judge

Unpublished Opinion No. 2004-UP-547

Submitted October 1, 2004 – Filed October
27, 2004

AFFIRMED

Margaret D. Fabri, of Charleston, for Appellant.

Robert Wade Maring, of Georgetown, for Respondent.

PER CURIAM: Karen P. Smith (the mother)
appeals the order of the family court finding her in contempt for withholding
the parties’ children from a scheduled visitation with James R. Smith (the father). 
We affirm. [1]

FACTS

The parties were divorced on October 31, 2002. 
Pursuant to the terms of the decree, the mother was granted custody of the parties’
two daughters with liberal visitation to the father.  The girls exercised visitation
with their father without incident until July of 2003. 

After the girls returned from visitation with the
father from June 20, 2003 to July 4, 2003, the mother discovered the older daughter
had a bald spot at the top of her head caused by her pulling her own hair out. 
The mother called the father that night, July 7, 2003, and they discussed the
situation.  The younger girl had told the father about the older daughter’s
actions during their visitation with him.  According to the mother, the father
told her that he “wasn’t too concerned about it” because he himself had developed
obsessive-type habits when he was a child.  The father, however, testified that
he planned on asking Patricia Carter, the girl’s therapist about the condition
when they met for a scheduled family counseling session on Thursday, July 10,
2003.  On that Thursday, the mother instead took the girls to an appointment
with Michael Kollar, Ed.D., a licensed clinical psychologist that the girls
had been seeing for individual counseling, who made the diagnosis of trichotillomania. [2]   Without first calling the father, the mother cancelled the
family counseling session that was scheduled for that evening.  Later that evening,
the father called the mother’s house and spoke to the older daughter.  The mother
testified that after the call, the older daughter began crying and pulling out
her hair for much of the night, saying she didn’t want to go to visitation with
her father. 

The following day the mother left a note in the
father’s mailbox stating that she was refusing to produce the children for the
visitation that was to start that day, July 11, 2003, and to end on July 25,
2003.  The father attempted to pick up the children that evening with the assistance
of a sheriff’s deputy.  Although the older daughter was home, the younger daughter
was at a friend’s house.  The father left without either girl.  As the mother
knew, the father had planned to take the children on a vacation to the Bahamas
during this visitation period.  The trip was to commence on July 15.  As a result
of not being able to start his visitation with the girls, the father had to
buy replacement airline tickets and also had to pay another veterinarian who
had contracted with him to cover for him at work during the vacation days missed. 

The father filed an Emergency Rule to Show Cause
on July 14, 2003.  The mother’s attorney accepted service on her behalf by fax
on the same date.  Although the mother was never personally served, she appeared
at the hearing and agreed to go forward on the Rule. 

At the hearing, the mother introduced evidence
in the form of an affidavit prepared by Dr. Kollar advising that the older daughter
had begun suffering from trichotillomania.  In the affidavit, Dr. Kollar recommended
that the older daughter be evaluated by a pediatrician and also advised that
the mother should not “physically forc[e]” the daughters to visit the father
if they did not want to go. 

After hearing all the evidence, the trial judge found
that the mother had improperly denied visitation to the father and was in willful
contempt.  The judge stated that the mother had “either manipulated [the] children
or allow[ed] them to manipulate her.”  The court ordered the mother to be incarcerated
for a period of 60 days and to pay a fine of $1500.00.  However, the court allowed
the mother to purge these sanctions in the following manner: (1) by delivering
the children to the father for visitation on the following day; (2) by paying
$2,039.00 to the father for the cost of the replacement airline tickets; (3)
by paying $1050.00 to the father for the substitute veterinarian to cover his
practice during the time he would have been on the vacation; and (4) by paying
a $750 fine to the Georgetown County Clerk of Court.  Additionally, the mother
was ordered to pay attorney fees and costs in the amount of $2126.70.

This appeal followed.   

STANDARD OF REVIEW

A finding of contempt rests within the family court’s
sound discretion.  Haselden v. Haselden, 347 S.C. 48, 63, 552 S.E.2d
329, 337 (Ct. App. 2001).  This court will reverse the family court’s determination
regarding contempt only if it is without evidentiary support or is an abuse
of discretion.  Id.

LAW/ANALYSIS

I. Finding of Willful Contempt

The mother first argues that the family
court erred in finding her in willful contempt for withholding visitation. 
We disagree.

A party may be found in contempt of court for willfully
violating, neglecting, or refusing to obey or perform a lawful court order. 
S.C. Code Ann. § 20-7-1350 (Supp. 2003).  An act is willful if it is “done voluntarily
and intentionally with the specific intent to do something the law forbids,
or with the specific intent to fail to do something the law requires to be done;
that is to say, with bad purpose either to disobey or disregard the law.” Spartanburg
County Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872,
874 (1988).  “Before a court may find a person in contempt, the record must
clearly and specifically reflect the contemptuous conduct.”  Henderson v.
Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1994).  To show contempt
for violation of a court order, the moving party must prove the existence of
a court order and the facts establishing the respondent’s noncompliance with
the order.  Eaddy v. Oliver, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct.
App. 2001).  Once a prima facie showing has been made, “the burden shifts to
the respondent to establish his defense and inability to comply.”  Id. 

The mother does not dispute the existence of the
court order or her noncompliance with the order.  Instead, she argues that the
family court failed to give proper weight to the evidence establishing her defense. 

The mother relies on Nash v. Byrd, 298 S.C.
530, 381 S.E.2d 913 (Ct. App. 1989), for the proposition that unilateral withholding
of visitation in violation of a court order does not constitute contempt of
court where a child is suffering from the ill effects of the conduct of the
opposing parent.  In Nash, this court found that the father had “engaged
in a course of conduct calculated to harass the mother and gain information
to support a change of custody.”  Id. at 532, 381 S.E.2d at 914.  The
father and his family stalked the mother, made derogatory remarks toward or
about her in front of the child, and encouraged the child to make false allegations
of abuse and neglect against the mother.  The child developed gastrointestinal
problems as a result of anxiety caused by the father’s actions.  He eventually
refused to go with his father for scheduled visitation.  Prior to the cessation
in visitation, the wife had brought two actions for modification of visitation
and restraining orders due to the father and his family’s conduct.  The family
court denied the father’s action to have the mother held in contempt for refusing
visitation.  In affirming the family court, this court found the family court
did not abuse its discretion in concluding that the problems were caused by
the father and that the mother had taken all reasonable steps to resolve the
problems.  Id. at 534, 381 S.E.2d at 916.

We find Nash clearly distinguishable from
the present case.  Here, the mother waited until the day the father was to start
an extended visitation, which she knew included a vacation to the Bahamas, before
dropping the letter off to the father informing him that he would not have his
visitation with his daughters.  Furthermore, unlike in Nash, there is
no evidence of wrongful conduct by the father causing ill effects on the older
daughter.  According to Dr. Kollar, the older daughter was experiencing distress
thinking about going to her father’s for visitation.  He stated that she related
feeling powerless because she has little to say in what she and her sister do
during visitation.  She also told him that she was distressed because her father
does not allow her to go to the barn where the girls take riding lessons and
she was afraid he would not allow her to participate in upcoming horse shows. 
Dr. Kollar did not advise that the father not be allowed to visit with his daughters. 
Rather, Dr. Kollar stated that the mother should not have to physically force
the daughters to go to their father.  He explained that it was up to the father
to work out these issues with the children in family therapy. 

We note the mother’s interference with the father’s
visitation was not unexpected.  In the divorce decree, the family court stated
that it shared the father’s concern that the mother had attempted to alienate
the children’s affections from him in order to receive custody.  The court found:

The Wife is a very bright and well-organized woman who can
be very indiscreet when she sets her mind on achieving a desired result.  She
will do almost anything to get what she wants.  There is also an indication
that the Wife has tried to interfere with the Husband’s visitation with his
daughters.  This Court is concerned that if the Wife is awarded custody, the
Husband’s relationship with his daughters and their relationship with him will
suffer, especially if the Husband were to remarry. 

Despite these expressed reservations, the family
court awarded the mother custody, but granted the father more than standard
visitation to aid him in fostering a closer relationship with his daughters. 

We hold the family court did not abuse its discretion
in determining the mother had willfully withheld visitation from the father. 
As the family court found, the mother had failed to introduce evidence to support
the allegation that the older child suffered harm as a result of visitation
with the father, and further found that she had offered no credible evidence
as to why she had denied visitation of the youngest child.  Moreover, as the
family court noted, the mother did not call the situation to the attention of
the court before taking action.  Instead, she acted unilaterally and in knowing
violation of the court order.  Accordingly, we find the family court did not
err in holding the mother in willful contempt. 

II. Procedural Due Process Violation

The mother argues that she was denied procedural
due process in that she was never personally served with the Rule to Show Cause,
and that the hearing was held less than 24 hours after she received notice of
the hearing.  As the mother admits in her reply brief, she did not contest the
personal jurisdiction of the family court and did not make a formal motion for
a continuance.  While the mother did request and obtain a ruling as to whether
the affidavit of Dr. Kollar would be admitted into evidence in part on the grounds
that Dr. Kollar himself was unavailable on such short notice, the mother did
not object to the fairness of the hearing itself on due process grounds.  Accordingly,
we find the mother’s argument is not preserved.  See 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.”).

III. Excessive Fees, Costs, and Fines

The mother’s final argument is that the fees, costs,
and fines imposed by the family court were excessive. 

The mother challenges the family court’s imposition
of a fine payable to the court contending the imposition of a criminal sanction
was inappropriate and excessive in a civil contempt proceeding.  There is no
indication in the record that the mother raised this issue to the family court
at the hearing or in a post-trial motion.  Accordingly, it is not preserved. 
Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It
is axiomatic that an issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the trial judge to be preserved for
appellate review.”); Pelican Bldg. Ctrs. v. Dutton, 311 S.C. 56, 60,
427 S.E.2d 673, 675 (1993) (stating that although the appellant learned for
the first time upon receiving the order on a post-trial motion that the respondent
would be granted certain additional relief, the appellant must move under Rule
59(e), SCRCP, to alter or amend the judgment to “preserve the record for appeal”).

The mother next contends the family court’s award of
costs and attorney’s fees to the father was not supported by the record. This
issue is not properly before this court because the wife failed to present this
issue in her statement of the issues on appeal.  See Rule 208(b)(1)(B),
SCACR (“Ordinarily, no point will be considered which is not set forth in the
statement of the issues on appeal.”).   

Furthermore, the mother failed to raise several of
the points contained in this section of her brief to the family court.  The
mother complains on appeal that the father was not entitled to reimbursement
for the veterinary help he had hired because it was an expense he would have
incurred even if visitation had begun as scheduled.  The mother never argued
to the family court that the father was not entitled to this expense.  Accordingly,
it is not preserved.  See Wilder Corp., 330 S.C. at 76, 497 S.E.2d
at 733.

Similarly, the mother never argued to the family court
that the father was not entitled to all of his attorney’s fees, nor did she
object to the admission of the father’s affidavit of attorney’s fees.  Thus,
this issue is not preserved.  See Id. at 76, 497 S.E.2d at 733. 
Moreover, we find no error in the family court’s award of attorney’s fees to
the father.  A contemnor may be required to reimburse a complainant for the
costs he or she incurred in enforcing the court’s prior order, including reasonable
attorney’s fees.  Poston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86,
90 (1998).  “It is well settled that an award of attorney fees is within the
sound discretion of the trial judge and will not be disturbed absent an abuse
of that discretion.”  Smith v. Smith, 308 S.C. 492, 496, 419 S.E.2d 232,
234-35 (Ct. App. 1992).   

Finally, the mother argues the family court erred in
awarding the father $2,039.00 for having to change his airline tickets to the
Bahamas.  She asserts there is no indication that the tickets were non-refundable. 
The father explained that he was not able to change the tickets because he did
not know when he was going to get the children and be able to leave for the
Bahamas.  The father presented into evidence the airline tickets and his testimony
of the expenses he had incurred due to the change of departure date. 

“Compensatory contempt is a money award for the
plaintiff when the defendant has injured the plaintiff by violating a previous
court order.”  Curlee v. Howle, 277 S.C. 377, 386, 287 S.E.2d 915, 919
(1982).  The goal of compensatory contempt awards is to restore the plaintiff
as nearly as possible to his or her original position.  Id.  We hold
the family court judge did not err in finding that these expenses were reasonable
and necessary to restore the father to his original position. 

CONCLUSION

Based on the above reasons, we hold the order of
the family court is

AFFIRMED.

HEARN, C.J., and HUFF and KITTREDGE, JJ., concur. 

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

[2] According to Dr. Kollar, trichotillomania is a
self-destructive behavior involving the recurrent pulling of one’s hair as
a means of relief from anxiety.