Martin v. Allen

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

David Edward Martin, Appellant,

v.

Roxanne Allen, Respondent.

Appellate Case No. 2019-000696

Appeal From Orangeburg County
Vicki J. Snelgrove, Family Court Judge

Unpublished Opinion No. 2021-UP-385
Submitted October 1, 2021 – Filed November 3, 2021

AFFIRMED

Karen Fryar Bloom, of Karen Fryar Bloom, Attorney At
Law, and Mary Cecelia Robinson, both of Columbia, for
Appellant.

Lakesha W. Jeffries, of Jeffries Law Firm, LLC, of
Orangeburg, for Respondent.

PER CURIAM: David Edward Martin appeals the family court's order holding
him in contempt for failing to pay court-ordered attorney's fees. On appeal, Martin
argues the family court erred in holding him in contempt because Roxanne Allen
failed to show his failure to pay was willful, he did not receive adequate notice that
a payment plan would be unacceptable, and he did not receive notice that his
ability to pay in full would be the critical issue at the hearing. Martin further
asserts the family court violated his constitutional rights by treating attorneys
differently than other creditors in terms of debt collection. We affirm.

1. We find the family court did not err in finding Martin in willful contempt for
failing to pay attorney's fees because Allen testified Martin failed to pay
court-ordered attorney's fees. See Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d
486, 487 (2018) (stating an appellate court reviews the family court's decisions de
novo); Stoney v. Stoney, 425 S.C. 47, 62, 819 S.E.2d 201, 209 (Ct. App. 2018)
(stating de novo review "does not require an appellate court to disregard the factual
findings below or ignore the fact that the trial judge is in the better position to
assess the credibility of the witnesses" (quoting Pinckney v. Warren, 344 S.C. 382,
387, 544 S.E.2d 620, 623 (2001))); Ashburn v. Rogers, 420 S.C. 411, 416, 803
S.E.2d 469, 471 (Ct. App. 2017) ("Consistent with this de novo review, the
appellant retains the burden to show that the family court's findings are not
supported by a preponderance of the evidence; otherwise, the findings will be
affirmed."); Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975)
("Contempt results from the willful disobedience of an order of the court."); Miller
v. Miller, 375 S.C. 443, 454, 652 S.E.2d 754, 760 (Ct. App. 2007) ("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." (quoting Hawkins v. Mullins, 359 S.C. 497, 501,
597 S.E.2d 897, 899 (Ct. App. 2004))); Wilson v. Walker, 340 S.C. 531, 538, 532
S.E.2d 19, 22 (Ct. App. 2000) ("Before a party may be found in contempt, the
record must clearly and specifically show the contemptuous conduct."). Although
Martin testified he contacted Allen's attorney at some point during the month
before the deadline, we find Martin's testimony did not justify his failure to pay
when other testimony at the hearing showed Martin had the ability to pay attorney's
fees, including Martin's testimony he received in excess of $2,500 from a tax
refund and did not use the funds to satisfy his obligation. See Miller, 375 S.C. at
454, 652 S.E.2d at 760 ("Once the moving party has made out a prima facie case,
the burden then shifts to the respondent to establish his or her defense and inability
to comply with the order." (quoting Widman v. Widman, 348 S.C. 97, 120, 557
S.E.2d 693, 705 (Ct. App. 2001))). Additionally, to the extent Martin argues he
did not receive adequate notice, we find this issue was not raised to and ruled upon
by the family court; therefore, it is not preserved for appellate review. See Doe v.
Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 (Ct. App. 2006) ("To preserve an issue
for appellate review, the issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the [family] court."); 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.").1

2. As to whether the family court violated his constitutional rights to due process
and equal protection when it found him in contempt, we find this issue is not
preserved for review because it was not raised to and ruled upon by the family
court. See Doe, 370 S.C. at 212, 634 S.E.2d at 54 ("To preserve an issue for
appellate review, the issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial court.").

AFFIRMED.2

KONDUROS, HILL, and HEWITT, JJ., concur.

1
Further, to the extent Martin argues the family court erred in holding him in
contempt because it did not provide safeguards as discussed in Turner v. Rogers,
we disagree. 564 U.S. 431, 447-48 (2011) (discussing safeguards the family court
can employ when an indigent litigant appears pro se and finding Turner was not
provided safeguards like those discussed in the case). Here, Martin received
adequate notice; relevant financial information was elicited at the hearing; Martin
had an opportunity to cross-examine Allen, testify about his financial status, and
answer questions posed by Allen's attorney and the family court; and the family
court found Martin received in excess of $2,000 in a tax refund and earned the
same income as he did when he agreed to pay attorney's fees. Thus, we find
Martin was provided adequate safeguards. See id. (stating counsel need not be
appointed to represent an indigent party when the other party is not represented by
counsel and alternative procedural safeguards equivalent to the following are
provided: "(1) notice to the defendant that his 'ability to pay' is a critical issue in
the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant
financial information; (3) an opportunity at the hearing for the defendant to
respond to statements and questions about his financial status (e.g., those triggered
by his responses on the form); and (4) an express finding by the court that the
defendant has the ability to pay").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.