S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Wilma R. Poston, Respondent
v.
William S. Poston, Petitioner
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Florence County
Mary E. Buchan, Family Court Judge
Opinion No. 24802
Heard February 17, 1998 - Filed June 8, 1998
Affirmed as modified in part; reversed in part;
and remanded.
John O. McDougall and Patricia L. Forbis, both of
McDougall &, Self, L.L.P., of Sumter, for petitioner.
Frederick K. Jones, of Florence; and Barbara
Tolson-Haywood, of Hartsville, for respondent.
BURNETT, A.J.: In this domestic action, respondent, Wilma
R. Poston, was adjudged guilty of contempt for failing to abide by prior
orders of the family court. The Court of Appeals reversed and remanded
finding the judge applied the wrong standard of proof in holding
respondent in criminal contempt. Poston v. Poston, Op. No. 96-UP-431
p.51
POSTON v. POSTON
(S.C. Ct. App. filed November 26, 1996) (Cureton, J. concurring and
dissenting). We affirm as modified in part; reverse in part; and remand.
FACTS
The parties were married in 1970. They had four children. In
1992, the family court issued a decree of separate maintenance and
support and awarded custody of the children to petitioner. In 1993, the
family court terminated respondent's visitation and barred her from
having any personal and telephone contact with two of the parties' minor
children. The court also restrained respondent from going within one
block of the marital home where the children resided and from going to
their schools, sporting events and church events.
In September 1994, the family court issued an order and rule
to show cause following petitioner's filing of a contempt petition. At the
hearing, petitioner produced evidence demonstrating respondent violated
the 1993 order by visiting the home and telephoning the children on
several occasions. In its order issued in 1995, the court found. respondent
willfully violated the 1993 order. The family court ruled as follows:
[Respondent] is in willful contempt. She shall be sentenced to
120 days incarceration but may purge herself of contempt by
strict compliance with this Order and the prior Order -
[December 21, 1993]. An additional restriction shall be
imposed to prohibit [respondent] from coming within 50 yards
of the children; and [respondent] shall be required to pay the
attomey's fees as ordered herein.
(emphasis added).
The Court of Appeals reversed this order finding the family
court judge held respondent in criminal contempt and applied the wrong
standard of proof. The Court of Appeals remanded the matter to the
family court for further proceedings. Id. Judge Cureton disagreed with
the majority's holding that respondent was held in criminal contempt.
However, he recommended reversing the family court order to the extent it
can be read to impose sanctions in advance for a violation of the new
restriction included in the contempt order issued in 1995. Id.
p.52
POSTON v. POSTON
ISSUES
I. Did the Court of Appeals err in finding the family court
held respondent in criminal contempt?
II. Did the Court of Appeals err in vacating the award of
attorney's fees to petitioner?
DISCUSSION
Petitioner argues the Court of Appeals erred in finding
respondent was held in criminal contempt. We agree.
The major factor in determining whether a contempt is civil or
criminal is the purpose for which the power is exercised, including the
nature of the relief and the purpose for which the sentence is imposed.
17 Am.Jur.2d Contempt § 9 (1990); see also Hicks v. Feiock, 485 U.S. 624,
108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); State v. Magazine, 302 S.C. 55, 393
S.E.2d 385 (1990), abrogated on other grounds by. State v. Easler, 327
S.C. 655, 393 S.E.2d 385 (1997). The purpose of civil contempt is "to
coerce the defendant to do the thing required by the order for the benefit
of the complainant." Gompers v. Buck's Stove & Range Co., 221 U.S. 418,
441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911). The primary purposes of
criminal contempt are to preserve the court's authority and to punish for
disobedience of its orders. State v. Bevilacqua, 316 S.C. 122, 447 S.E.2d
213 (Ct. App. 1994). "If it is for civil contempt the punishment is
remedial, and for the benefit of the complainant. But if it is for criminal
contempt the sentence is punitive, to vindicate the authority of the court."
Hicks v. Feiock, 485 U.S. at 631, 108 S.Ct. at 1429, 99 L.Ed.2d at 731
(quoting Gompers v. Buck's Stove & Range Co., 221 U.S. at 441, 31 S.Ct.
at 498, 55 L.Ed. at 806).
"An unconditional penalty is criminal in nature because it is
'solely and exclusively punitive in nature.'" Hicks v. Feiock, 485 U.S. at
633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330
U.S. 585, 593, 67 S.Ct. 918, 922, 91 L.Ed. 1117, 1124 (1947)). "The relief
'cannot undo or remedy what has been done nor afford any compensation
and the contemnor cannot shorten the term by promising not to repeat his
offense."' Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d
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POSTON v. POSTON
at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31
S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of
imprisonment, . . . it is punitive if the sentence is limited to imprisonment
for a definite period." Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429,
99 L.Ed.2d at 731; see also State v. Magazine, supra. If the sanction is a
fine, it is punitive when it is paid to the court. However, a fine that is
payable to the court may be remedial when the contemnor can avoid
paying the fine simply by performing the affirmative act required by the
court's order. Hicks v. Feiock, supra; State v. Magazine, supra.
In civil contempt cases, the sanctions are conditioned on
compliance with the court's order. Hicks v. Feiock, supra; State v.
Magazine, supra. "The conditional nature of the punishment renders the
relief civil in nature because the contemnor 'can end the sentence and
discharge himself at any moment by doing what he had previously refused
to do."' Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d
at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31
S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of
imprisonment, it is remedial if the defendant stands committed unless and
until he performs the affirmative act required by the court's order ......
Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429, 99 L.Ed.2d at 731.
"Those who are imprisoned until they obey the order, 'carry the keys of
their prison in their own pockets."' Hicks v. Feiock, 485 U.S. at 633, 108
S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330 U.S. at
590, 67 S.Ct. at 921, 91 L.Ed. at 1123). If the sanction is a fine, it is
remedial and civil if paid to the complainant even though the contemnor
has no opportunity to purge himself of the fine or if the contemnor can
avoid the fine by complying with the court's order. Hicks v. Felock. supra;
State v. Magazine, supra; see also In re General Motors Corp., 61 F.3d
256 (4th Cir. 1995), opinion after remand, 110 F.3d 1003 (4th Cir.), cert.
denied, U.S. , 118 S.Ct. 61, 139 L.Ed.2d 24 (1997) (remedies for
civil contempt include ordering the contemnor to reimburse the
complainant for losses sustained and for reasonable attorney's fees); 17
Am.Jur.2d Contempt § 237 (1990) (court may impose a fine payable to the
aggrieved party as compensation for losses sustained); Annotation, Right of
Injured Party to Award of Compensatory Damages or Fine in Contempt
Proceeding, 85 A.L.R.3d 895 (1978); United States v. United Mine Workers
of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Curlee v.
Howle, 277 S.C. 377, 287 S.E.2d 915 (1982) (contempt was civil where
appellant could purge himself of one year sentence by paying respondent's
expenses she incurred in recovering the children from appellant).
p.54
POSTON v. POSTON
Compare with State v. Magazine, supra (because contemnor could not
purge himself of the contempt by merely complying with the court's order
where contemnor was ordered to serve one year in prison or pay to the
court a fine of $1500.00 the contempt was criminal).
Civil contempt must be proven by clear and convincing
evidence. United Mine Workers of America v. Bagwell, 512 U.S. 821, 114
S.Ct. 2552, 129 L.Ed.2d 642 (1994) (burden of proof in civil contempt
proceeding is clear and convincing); In re General Motors Corp., supra
(civil contempt must be proven by clear and convincing evidence); 17
Am.Jur.2d Contempt § 207; see also Moseley v. Mosier, 279 S.C. 348, 306
S.E.2d 624 (1983) (willfulness of the violation must be shown by clear and
specific acts or conduct); Curlee v. Howle, supra (before a person may be
held in contempt, the record must be clear and specific as to the acts or
conduct upon which such finding is based). In a criminal contempt
proceeding, the burden of proof is beyond a reasonable doubt. State v.
Bowers, 270 S.C. 124, 241 S.E.2d 409 (1978); State v. Bevilacqua, supra.
The United States Supreme Court has held a defendant
charged with a serious as opposed to a petty criminal contempt 's entitled
to a jury trial. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct.
2687, 41 L.Ed.2d 912 (1974) (a contemnor had no right to a jury trial
where the sentence imposed is confinement for six months or less); Frank
v. U.S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (lengthy
probation was not serious enough to entitle conterrmor to a jury trial);
Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975)
(payment of a $10,000 fine was not serious). But see Ex Parte Griffin,
682 S.W.2d 261 (Tex. 1984) (a $104,000 fine and a sentence to jail for 30
days was a serious offense entitling the contemnor to a jury trial). A civil
contempt proceeding does not require a jury trial. Shillitani v. U.S., 384
U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) (no jury trial is required
for a civil contempt proceeding even though the resulting imprisonment
may be long because the contemnor may avoid the sanction-by complying
with the court's order); see also 17 Am.Jur.2d Contempt § 203.
In a civil contempt proceeding, a contemnor may be required to
reimburse a complainant for the costs he incurred in enforcing the court's
prior order, including reasonable attorney's fees. The award of attorney's
fees is not a punishment but an indemnification to the party who
instituted the contempt proceeding. Thus, the court is not required to
provide the contemnor with an opportunity to purge himself of these
p.55
POSTON v. POSTON
attorney's fees in order to hold him in civil contempt. See Whetstone v.
Whetstone, 309 S.C. 227, 420 S.E.2d 877 (Ct. App. 1992) (court properly
awarded wife attorney's fees incurred as the result of husband's contempt);
17 Am.Jur.2d Contempt § 241 (it is within the trial court's discretion to
award reasonable attorney's fees to the prevailing party in a civil contempt
proceeding); A.S. Klien, Annotation, Allowance of Attorney's Fees in Civil
Contempt Proceedings, 43 A.L.R.3d 793 (1972); see also Curlee v. Howle,
supra; Golden v. Gallardo, 295 S.C. 393, 368 S.E.2d 684 (1988) (attorney's
fees are recoverable in post-divorce litigation concerning visitation and
support of parties' minor children). A governmental body, as a
complainant, may recover attorney's fees in a successful contempt
proceeding, provided no statute prohibits recovery. Donovan v. Burlington
Northern Inc., 781 F.2d 680 (9th Cir. 1986) (an award of attomey's fees to
the governmental agency, the complainant, is within the court's discretion);
Matter of St. Charles Mfg. Co., 663 F. Supp. 310 (N.D. 111. 1987) (holding
an award of attorney's fees to government was proper because such an
award is within the inherent power of the court to remedy civil contempt);
United States v. Greyhound Corp., 370 F. Supp. 881 (N.D. 111. 1974) (upon
a finding of civil and/or criminal contempt, a court may award to the
complainant, as part of the civil relief, attorney's fees); 17 Am.Jur.2d
Contempt § 243. Although usually a complainant is not entitled to
attorney's fees in a criminal contempt proceeding, depending on the
circumstances, such an award may be proper. 17 Am.Jur.2d Contempt §
247. After all, the award of attorney's fees is not part of the punishment;
instead, this award is made to indemnify the party for expenses incurred
in seeking enforcement of the court's order.
The following are examples of civil contempt sanctions:
I. The contemnor is ordered to pay a fine to the
court; however, he may purge himself of the fine by
complying with the prior court order.
II. The contenmor is given a jail sentence to be,
served until he agrees to comply with the prior
court order.
III. The conteirmor is ordered to pay a
fine/damages to complainant and is ordered to pay
a fine to the court; however, the contenmor may
purge himself of the fine payable to the court by
p.56
POSTON v. POSTON
complying with the prior court order.
IV. The contemnor is ordered to pay a
fine/damages to complainant and is given a jail
sentence to be served until he agrees to comply
with the prior court order.
The following are examples of criminal contempt sanctions:
1. The contemnor is ordered to pay a fine to the
court. Even if the contemnor performs the
affirmative act required by the prior court order,
the fine must still be paid.
II. The contemnor is sentenced to jail for a definite
period of time. Even if the contemnor performs the
affirmative act required by the prior court order,
the contemnor must still serve the entire jail
sentence.
III. The contemnor is given a choice between
paying a fine to the court or serving a definite
period of time in jail. The contemnor must do one
or the other, thus he cannot purge himself entirely
of the sanction.
In our opinion, it is impossible to determine whether the
contempt sanction in this case is criminal or civil.1 The contempt order is
1The Court of Appeals based its finding that the contempt was
criminal in nature on the fact that respondent had to pay petitioner's
attorney's fees regardless of whether she complied with the family court
orders prohibiting her from having contact with her children. However, as
discussed above, the award of the attorney's fees is not determinative.
Petitioner was awarded attorney's fees for successfully bringing this
matter before the family court. The family court had the discretion to
determine whether to reimburse petitioner for the expenses he incurred in
pursuing this matter. Thus, the court is not required to provide
respondent with an opportunity to purge herself of these attorney's fees in
order to hold her in civil contempt.
p.57
POSTON v. POSTON
not clear; instead, it is a hybrid because the sanction has characteristics of
both civil and criminal contempt.
While the potential sentence of imprisonment is for a definite
period, it will not be imposed unless and until respondent violates one of
the orders at issue. This is a characteristic of civil contempt because
respondent can avoid the prison sentence by complying with the orders
prohibiting her from having contact with her children. Respondent can
purge herself of the prison term by performing the affirmative act --
complying with the family court's orders. Moreover, other language in the
family court order at issue indicates the purpose of the contempt sanction
is to coerce respondent to comply with the orders prohibiting her from
having contact with her children, not to punish her for violating the
previous court order. If the purpose of the sanction was to punish
respondent for violating the order, the family court would have ordered
respondent to prison immediately instead of making the sentence
conditional upon future violations of the orders.
On the other hand, if respondent violates the orders
prohibiting her from having contact with her children, she will go to jail
for a fixed period of time with no ability to purge herself of the sentence.
This is a characteristic of criminal contempt.
Further, the family court order can be read as imposing a
sanction on respondent for future alleged violations of the orders without
any determination by a tribunal that respondent willfully violated the
order on that occasion.2By punishing respondent for future violations
without first holding a hearing to determine if respondent willfully
violated the orders, the court could potentially violate respondent's due
process rights under the Fourteenth Amendment of the United States
Constitution and Article I, § 3 of the South Carolina Constitution. See
Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (most
procedural requirements applicable to other criminal trials are applicable
to a hearing on criminal contempt including notice and an opportunity to
2JudgeCuretondiscussedthis possibility in his concurring and
dissenting opinion. Poston, supra. However, Judge Cureton only
addressed the new restriction added in the 1995 order. He concluded the
order can be read to prematurely sanction respondent for violating the
new restriction in the 1995 order in the future.
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POSTON v. POSTON
be heard); Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429-30, 99
L.Ed.2d at 731-32 ("criminal penalties may not be imposed on someone
who has not been afforded the protections the [United States] Constitution
requires of such proceedings"); State v. Brown, 178 S.C. 294, 182 S.E. 838
(1935), appeal dismissed by, 298 U.S. 639, 56 S.Ct. 750, 80 L.Ed. 137
(1936) (due process requires a person shall have a reasonable opportunity
to be heard before a legally appointed and qualified impartial tribunal
before any binding order can be made affecting his rights to life, liberty, or
property); 16A Am.Jur.2d Constitutional Law § 812 (1979) (due process
requires notice and an opportunity to be heard). Compare with Morrissey
v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (requiring a
hearing be held prior to revoking probation because it must be determined
if the violations warrant revocation); see also 59 Am.Jur.2d Pardon and
Parole §§ 101 & 106 (1987). Like probation revocation, respondent cannot
be punished for violating the orders in the future unless the willfulness of
the violation is shown by clear and specific acts or conduct. Moseley v.
Mosier, supra. If in the future respondent violates the family court orders,
a new contempt proceeding must be initiated.
Therefore, we affirm that portion of the Court of Appeals'
opinion remanding the case to the family court. However, we reverse the
Court of Appeals' finding respondent was held in criminal contempt. Upon
remand, the family court should clarify its intent and issue an order
setting forth a contempt sanction that is either clearly criminal or clearly
civil in accordance with this opinion.
II.
Petitioner claims because the contempt was civil in nature, the
Court of Appeals erred in vacating the award of attorney's fees to
petitioner. We agree.
As discussed in Section 1, the imposition of attorney's fees on
respondent was not intended as part of the sanction. Instead, the family
court imposed the attorney's fees on respondent because petitioner was
successful in bringing this action and petitioner should be reimbursed for
the expenses he incurred. Thus, we reinstate the family court's award of
attorney's fees to petitioner.
AFFIRMED AS MODIFIED IN PART; REVERSED IN
PART; AND REMANDED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
p.59