Stasi v. Sweigart

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

Lukas Stasi and Brittney L. Stasi, Appellants,

v.

Mallory Sweigart, and Matthew Kidwell, Defendants,

Of whom Mallory Sweigart is the Respondent.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2018-000044

Appeal From York County
David G. Guyton, Family Court Judge

Unpublished Opinion No. 2019-UP-384
Submitted November 1, 2019 – Filed December 10, 2019

REVERSED

Thomas Franklin McDow IV, of McDow and Urquhart,
LLC; and Barrett Wesley Martin, of Barrett W. Martin,
P.A., both of Rock Hill, for Appellants.

Stephen D. Schusterman, of Schusterman Law Firm, of
Rock Hill, for Respondent.
April Dawn Porter, of Law Office of April D. Porter,
P.C., of Chester, for the Guardian ad Litem.

PER CURIAM: Lukas Stasi and Brittney L. Stasi appeal an order finding them in
contempt of court for not allowing Mallory Sweigart (Mother) to visit Mother's
minor child (Child). On appeal, the Stasis argue (1) a person cannot be held in
contempt for violating an order that fails to tell him in definite terms what he must
do, (2) Mother testified the 2015 order awarding the Stasis custody was vague, and
(3) the facts do not support the contempt finding. Next, they assert they were
justified in denying visitation because the 2015 order required Mother to attend
counseling as a prerequisite to visitation, and an April 2016 order dismissing
Mother's custody modification action found no substantial change in
circumstances. Finally, they contend the family court erred in awarding attorney's
fees. We reverse the finding of contempt and the award of attorney's fees.

On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court
reviews the family court's findings de novo, we are not required to ignore the fact
that the family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 385, 709 S.E.2d at 651-52.

"Contempt is a consequence of the willful disobedience of a court order." Noojin
v. Noojin, 417 S.C. 300, 306, 789 S.E.2d 769, 772 (Ct. App. 2016) (quoting Tirado
v. Tirado, 339 S.C. 649, 654, 530 S.E.2d 128, 131 (Ct. App. 2000)). "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." Id.
(quoting Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d 515, 518 (Ct. App. 2008)).
"Once the movant makes a prima facie showing by pleading an order and
demonstrating noncompliance, 'the burden shifts to the respondent to establish his
defense and inability to comply.'" Id. at 307, 789 S.E.2d at 772 (quoting Eady v.
Oliver, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct. App. 2001)). "Civil contempt
must be shown by clear and convincing evidence." Id. at 306-07, 789 S.E.2d at 772
(quoting DiMarco v. DiMarco, 393 S.C. 604, 607, 713 S.E.2d 631, 633 (2011)).

Mother did not prove by clear and convincing evidence that the Stasis willfully
violated the October 2015 custody order. The 2015 order, which granted Mother
monthly visitation, required Mother to "continue in weekly Borderline Personality
Disorder therapy sessions." Pertinently, the order provided that if Mother "fail[ed]
to attend regular therapy sessions, [her] visitation shall be suspended pending a
subsequent one month of regular therapy attendance." At the contempt hearing,
Mother acknowledged Robert Klein, her psychologist, was not treating her for
borderline personality disorder. She also testified the Stasis refused her visitation
in October and November 2017 after they spoke with Klein and learned he was not
treating Mother using dialectical behavioral therapy (DBT).1 Mother maintains she
successfully completed the DBT program and therefore was no longer bound by
the order to attend weekly therapy. Lukas stated the Stasis denied visitation
because Mother was not attending therapy for borderline personality disorder. The
order contained no language allowing Mother to modify or omit therapy upon
successful completion of the DBT program. Because the 2015 order provided
Mother's visitation would be suspended if she did not attend weekly therapy for
borderline personality disorder and Mother admitted she was not attending weekly
therapy for borderline personality disorder, the Stasis did not willfully violate the
2015 order. See Cty. of Greenville v. Mann, 347 S.C. 427, 435, 556 S.E.2d 383,
387 (2001) ("One may not be convicted of contempt for violating a court order
which fails to tell him in definite terms what he must do." (quoting Welchel v.
Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973))).

Because we reverse the finding of contempt, we also reverse the award of attorney's
fees. See Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993) (providing
appellate courts have reversed awards of attorney's fees when "the substantive results
achieved by counsel were reversed on appeal").

REVERSED.2

LOCKEMY, C.J., and KONDUROS and HILL, JJ., concur.

1
DBT is a type of therapy used to treat borderline personality disorder. Mother
was attending DBT when the parties mediated the custody agreement.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.