Campbell v. Winstead

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

Jason D. Campbell, Respondent,

v.

Stacey Winstead, Appellant.

Appellate Case No. 2018-000415

Appeal From Spartanburg County
Phillip K. Sinclair, Family Court Judge

Unpublished Opinion No. 2021-UP-058
Submitted October 1, 2020 – Filed February 24, 2021

AFFIRMED

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of
Spartanburg, for Appellant.

J. Falkner Wilkes, of Greenville, for Respondent.

PER CURIAM: Stacey Winstead (Mother) appeals the order of the family court
finding her in willful contempt of a final visitation order. The family court ordered
Mother to pay $100 and awarded Jason Campbell (Father) an additional week of
visitation. We affirm.
Mother and Father never married, and Mother has legal and physical custody of
their child (Child). The parties are subject to a final order (Visitation Order) of the
family court issued in 2014. The Visitation Order gives Father visitation with
Child throughout the year.

In October 2017, Mother apparently made allegations that Child could potentially
be abused by Father. The record does not contain actual allegations of abuse of
Child against Father. Mother signed a DSS safety plan agreeing to no contact
between Father and Child, but Father was not involved in signing the safety plan.
DSS unfounded the investigation in December 2017, and visitation between Father
and Child resumed.

Father brought the present contempt action alleging that Mother violated the
Visitation Order by denying him visitation. At the contempt hearing, Mother
admitted she denied the visitation. Mother acknowledged she had a duty to follow
the Visitation Order regardless of the DSS investigation. The family court noted if
Mother wanted to "change a court order, you just bring an action for an
[e]mergency [h]earing, you have a [c]ourt suspend visitation. You just can't do it
on your own." In its contempt order, the family court found a DSS safety plan "is
not a court order", and noted that Mother "did not file any pleadings to modify
visitation during this period of time." Mother was sentenced to five days in jail,
purged upon the payment of $100 and further strict compliance with the Visitation
Order. Father received an additional week of visitation for the summer of 2018 to
make up for the missed visitation.

"In appeals from the family court, [appellate courts] review[ ] factual and legal
issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011). "Contempt is a consequence of the willful disobedience of a court order."
Tirado v. Tirado, 339 S.C. 649, 654, 530 S.E.2d 128, 131 (Ct. App. 2000). "A
willful act is one 'done voluntarily and intentionally with the specific intent . . . to
fail to do something the law requires to be done . . . .'" Id. (quoting Spartanburg
Cty. Dep't of Soc. Servs. v. Padgett, 296 S.C. 79, 82–83, 370 S.E.2d 872, 874
(1988) (per curiam)). "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." Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d 515, 518
(Ct. App. 2008). "Civil contempt must be shown by clear and convincing
evidence." DiMarco v. DiMarco, 393 S.C. 604, 607, 713 S.E.2d 631, 633 (2011).

Here, Mother admitted she intentionally withheld visitation, and Father has proven
the contemptuous conduct, so the burden shifts to Mother "to establish [her]
defense and inability to comply." Henderson v. Henderson, 298 S.C. 190, 197,
379 S.E.2d 125, 129 (1989). Mother contends her compliance with the DSS safety
plan and withholding of visitation does not constitute an act done with bad
purpose. Mother states "DSS . . . informed her in no uncertain terms that her child
would be placed in an alternative home if she failed to comply." Mother argues it
would be "an abuse of judicial discretion" to require her to file a court action to
change the Visitation Order because if the investigation was unfounded she would
have to pay attorney's fees to Father.

We find the family court did not err in holding Mother in contempt for
disregarding the Visitation Order. The DSS safety plan does not hold the authority
of law and does not give Mother (or DSS) the authority to circumvent an order of
the family court. The DSS safety plan states "I agree that if at any time I find that I
cannot or will not comply with . . . this agreement, I must notify DSS
immediately." Mother could have notified DSS that she could not comply with the
safety plan because of the Visitation Order and DSS could have proceeded from
there. Mother admitted at the family court hearing that she knew she was under a
family court Visitation Order that she must follow regardless of the DSS
investigation. As the family court stated, "[I]f DSS does not file an action, and you
don't intend to [follow] a court order, you need to change the court order. That's
just the way the system has to work." See Bass v. S.C. Dep't of Soc. Servs., 414
S.C. 558, 576 n.2, 780 S.E.2d 252, 261 n.2 (2015) (DSS's expert testified that the
parents "could have refused to sign the safety plan, at which time DSS would have
been required to seek a court order to place the children"); See also Miles v. Miles,
355 S.C. 511, 519, 586 S.E.2d 136, 140 (Ct. App. 2003) ("It is axiomatic that
parties cannot modify a court order.).

AFFIRMED.1

HUFF, WILLIAMS, and GEATHERS, JJ., concur.

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