Ward v. Washington

750 S.E.2d 105, 406 S.C. 249, 2013 WL 5819537, 2013 S.C. App. LEXIS 245
CourtCourt of Appeals of South Carolina
DecidedOctober 30, 2013
DocketAppellate Case No. 2012-212378; No. 5179
StatusPublished
Cited by4 cases

This text of 750 S.E.2d 105 (Ward v. Washington) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Washington, 750 S.E.2d 105, 406 S.C. 249, 2013 WL 5819537, 2013 S.C. App. LEXIS 245 (S.C. Ct. App. 2013).

Opinion

LOCKEMY, J.

Katherine Washington (Mother) appeals a contempt order, arguing the family court erred in (1) finding she willfully violated the family court’s 2009 order, (2) imposing criminal sanctions without a finding of willful violation beyond a reasonable doubt, and (3) awarding Matthew Ward (Father) [252]*252attorney’s fees. We reverse in part and remand to the family court.1

FACTS/PROCEDURAL BACKGROUND

On March 27, 2007, Mother and Father were divorced. The parties have two minor children. Mother and the children live in Charlotte, North Carolina and Father lives in Charleston, South Carolina. In 2009, the parties entered into a settlement agreement regarding visitation and custody of the children. Pursuant to the agreement, the parties retained joint custody of the children with Mother designated as the primary custodial parent and Father designated as secondary custodial parent. The settlement agreement allowed Father to select visitation with the children as follows:

In lieu of his every-other-weekend visitation, Easter, Memorial Day and Labor Day visitation during the school year, Father shall be allowed to select one weekend in August and December, two weekends in September, October, January, February and May, three weekends total in March and April in odd numbered years and four weekends total in March and April in even numbered years, two weekends in November in even numbered years and one weekend in November in odd numbered years. Father shall select these weekends in writing by the 15th of the previous month, and shall not be allowed to select weekends that conflict with Mother’s Spring Break, Thanksgiving or Christmas visitation. Father shall not select Mother’s day weekend for his May visitation. Mother shall provide Father the children’s school schedule as soon as she receives it. Father shall then select the weekends he wants.

The agreement further provided Mother and Father would have the children on alternating Christmas, Thanksgiving, Spring Break, and Easter holidays. On November 3, 2009, the family court approved the settlement agreement and incorporated it into a final order.

On September 19, 2011, Father filed a petition for a rule to show cause alleging Mother willfully violated the 2009 order. Specifically, Father alleged Mother refused to allow him to visit the children on Labor Day 2011 weekend. Father stated [253]*253Mother’s interference with his visitation was an ongoing issue and noted Mother had previously been held in contempt for similar behavior.2 Father requested the family court find Mother in civil and criminal contempt and asked that she be required to pay his attorney’s fees and costs. In her return to Father’s petition for rule to show cause, Mother denied Father’s allegation that she was in willful contempt of the 2009 order. Mother asserted Father was not entitled to Labor Day visitation pursuant to the clear language of the 2009 order. Mother also requested attorney’s fees and costs.

A hearing was held before the family court on January 30 and February 22, 2012. At the hearing, Mother admitted she denied Father’s request for Labor Day 2011 visitation, however she denied she willfully violated the 2009 order. Mother claimed Father, by agreeing to the terms “[i]n lieu of his ... Labor Day visitation,” forfeited his right to Labor Day visitation with the children. Father testified the children had spent the 2010 Labor Day holiday with him in Charleston without objection from Mother.

The family court found Mother willfully violated the 2009 order by denying Father’s Labor Day visitation request and held her in contempt. The court fined Mother $1,500, suspended upon the condition that she not be held in future contempt for further interference with Father’s visitation. Additionally, the family court ordered Mother to pay Father’s attorney’s fees in the amount of $2,500.3 Mother subsequently filed a motion to reconsider. The family court denied Mother’s motion, noting the parties opted out of traditional visitation and “[njothing in the [2009] Order specifically prohibits [Father] from selecting Memorial Day or Labor Day as part of his weekend visitations.” The family court noted that while it understood Mother’s interpretation of the 2009 order, it read the order more broadly and looked at the totality of the circumstances. The family court found it “troubling” that Mother “cited a variety of different reasons” in emails to [254]*254Father as to why Father should not have Labor Day visitation, but indicated in her testimony that the real reason she wanted the children that weekend was that she had planned a birthday party for several family members. Mother appealed.

STANDARD OF REVIEW

“The family court is a court of equity.” Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the appellate court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). “De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the [family] court’s findings.” Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55. However, this broad standard of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of demonstrating error in the family court’s findings of fact. Id. at 387-88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the family court unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by this court. See Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55.

LAW/ANALYSIS

I. Contempt

Mother argues the family court erred in finding her in contempt of the 2009 order for denying Father Labor Day visitation. We agree.

“A party may be found in contempt for the willful violation of a lawful court order.” Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct.App.2004). “A willful act is one ... 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.” Ex parte Lipscomb, 398 S.C. 463, 469, 730 [255]*255S.E.2d 320, 323 (Ct.App.2012) (quoting Ex parte Cannon, 385 S.C. 643, 661, 685 S.E.2d 814, 824 (CtApp.2009)). “A good faith attempt to comply with the court’s order, even if unsuccessful, does not warrant a finding of contempt.” Lipscomb, 398 S.C. at 470, 730 S.E.2d at 324.

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Cite This Page — Counsel Stack

Bluebook (online)
750 S.E.2d 105, 406 S.C. 249, 2013 WL 5819537, 2013 S.C. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-washington-scctapp-2013.