RULES TO SHOW CAUSE, by Stephanie G. Borsanyi
Confusion abounds around rules to show cause ("RTSC"). Indeed, the lack of uniformity with which the RTSC is employed around the State makes it appear that some lawyers, and possibly some courts, may be a bit confused as to its use and application. This article attempts to provide insight into some of the most common issues.
What is a RTSC?
As any attorney knows, getting a favorable decision is only part of the legal battle. The resultant decree, judgment or order must be enforced, which can present its own obstacles. A RTSC is now generally and most frequently used to enforce a prior court order. The RTSC is a type of process that can be used in place of a summons to establish jurisdiction over a party and to hale a party into court. See, e.g., In re Beckham, 620 S.E.2d 69, 365 S.C. 637 (2005). For simplicity's sake, this article will be restricted to the use of the RTSC to initiate a contempt proceeding to enforce a prior court order.
A RTSC is an order commanding a party to appear and demonstrate why he or she should not be compelled to do the act required by the court, or why the object of the rule should not be enforced. See id. at 1332. In a nutshell, the situation in which a RTSC would generally be used is when the court has ordered A to do X for the benefit of B. A has not done X. B wants A to obey the order, so B informs the court of A's failure, and petitions the court to force A to do it. The court will enforce the order against A unless A can adequately explain to the court why the order should not be enforced. If A cannot sufficiently or convincingly explain why the order should not be enforced, or continues to wilfully fail to do X, the court may find the A in contempt of court and punish A with fines or imprisonment.
RTSC and Contempt of Court - Serious Business!
A RTSC is an effective enforcement tool because it comes with the threat of being found in contempt of court and punitive action. It deals with constructive contempt, or conduct "occurring outside the presence of the court." Toyota of Florence v. Lynch, 314 S.C. 257, 267, 442 S.E.2d 611, 617 (1994); State v. Kennerly, 337 S.C. 617, 524 S.E.2d 837 (1999). "The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice." Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 606, 567 S.E.2d 514, 519 (Ct. App. 2002), quoting Curlee v. Howle, 277 S.C. 377, 287 S.E.2d 915 (1982), a case the South Carolina Court of Appeals termed "a paradigm of an academic and scholarly review of the law of contempt."
As the RTSC is the court's command, the court may find a party in contempt for wilfully violating an earlier court order or for violating the RTSC itself. A finding of contempt rests within the sound discretion of the trial judge. Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989).
The Rule to Show Cause - What to do
When a party fails to comply with a court order, the enforcing party brings the violation to the court's attention by filing a RTSC. The RTSC is an actual order that must be executed by the court and then served upon the contemnor. So although the party or his/her counsel submits the Rule to the court for execution, it is the court, not the complaining party, demanding compliance with its prior order.
The RTSC is used in place of a summons, hales a defendant into court and compels the appearance of the noncompliant party. See Anderson v. Anderson, 198 S.C. 412, 18 S.E.2d 9 (1941); Black's Law Dictionary 1205 (6th ed. 1990).
To comport with due process, a party bringing a contempt proceeding for conduct that occurred outside the presence of the court must adhere to the rules of notice and service of process.
Notice - Subject Matter
With constructive contempt, a RTSC will be fatally defective unless it is accompanied by a "relevant pleading," such as a verified complaint or an affidavit, to provide the court with the underlying facts justifying the issuance of a RTSC. State v. Kennerly, 337 S.C. 617, 524 S.E.2d 837 (1999). See also Rule 3(a) SCRCP.
This relevant pleading must (1) inform the court that an order is in place; (2) clearly and specifically identify the contemptuous conduct, i.e., the respondent's noncompliance or violation of the court's order and (3) specify the relief sought. See, e.g., State v. Kennerly, 337 S.C. 617, 524 S.E.2d 837 (1999); 60 C.J.S. Motions & Orders § 21 (2002). Petitioners should attach a copy of the violated order to the pleading.
Due process requires that the relevant pleadings contain all the matters to be adjudicated at the RTSC hearing. For example, in Murdock v. Murdock, 338 S.C. 322, 334, 526 S.E.2d 241 (Ct. App. 1999), the S.C. Court of Appeals held that the Family Court acted outside the scope of due process in allocating debt, because "neither the notice of hearing, the petition for the rule to show cause, nor the supporting affidavit made any mention of debt allocation as an issue to be addressed." Giving the defaulting party notice reasonably calculated to give him or her the knowledge of the proceeding and an opportunity to be heard satisfies due process. See Everhart v. Everhart, 261 S.C. 322, 326, 200 S.E.2d 87, 88 (1973).
Notice - Time
Some confusion surrounds the timing requirement for a RTSC. When a RTSC is used in place of a summons, it must contain the essential elements of a summons, including the time to appear. S.C. Dep't of Revenue v. Elliott, 350 S.C. 404, 566 S.E.2d 196 (App. Ct. 2002), citing Citizens and Southern National Bank of S.C. v. First Palmetto State Bank and Trust Co., Inc., 279 S.C. 252, 305 S.E.2d 80 (1983). If, however, the RTSC is related to an on-going action or arises from an earlier action in which the contemnor had already appeared, the RTSC is considered, by its nature, a supplemental proceeding incidental to the original suit, and is treated like a motion. As the S.C. Supreme Court explained in Everhart v. Everhart:
261 S.C. 322, 325, 200 S.E.2d 87, 88 (1973). The order-enforcing RTSC must give the defendant only the reasonable notice required for a motion, as specified in Rule 6(d), SCRCP. See, e.g., Raines v. Poston, 208 S.C. 349, 38 S.E.2d 145 (1946). The practitioner should treat the RTSC as one would a summary judgment motion, i.e., with appropriate documentation attached.
Because a RTSC is a process, it must be properly served upon the party to be haled into court to give the court jurisdiction and ensure the defendant receives adequate notice. See, e.g., Moore v. Simpson, 322 SC 518, 473 S.E.2d 64 (Ct. App. 1996); Middleton v. Robinson, 202 S.C. 418, 25 S.E.2d 474 (1943).
Lawyers are sometimes confused when it comes to acceptable service of a RTSC. Unfortunately, there appears to be no one single right answer. Some South Carolina courts require the rule to be personally served on the party by a law enforcement officer, possibly because finding a party in contempt might result in jail time. Other courts permit the rule to be served by any method allowed in Rule 4, SCRCP. Some courts allow service by certified or registered mail, return receipt requested, if delivery is restricted to the addressee, while other courts have recognized proper service if the rule is mailed to the defendant's last known address but accepted by someone other than the defendant. See, e.g., In re: Diggs, 344 S.C. 434, 434, 544 S.E.2d 632 (2001).
Service is also allowed by publication, with the court's permission. An affidavit from the publisher must be submitted to the court showing the publication efforts. SCRCP Rule 4(g); Parklands, Inc., v. Gibson, 253 S.C. 367, 170 S.E.2d 669 (1969); S.C. Code Ann. § 15-9-710 (2005). Other states' courts have held that service of a RTSC by mail upon a nonresident spouse is sufficient, but the South Carolina Supreme Court has not actually agreed with the practice yet. See, e.g., Everhart v. Everhart, 261 S.C. 322, 326, 200 S.E.2d 87, 88 (1973), citing Prensky v. Prensky, 146 So.2d 604 (Fla. App. 1962).
As the court retains the authority to direct the manner of service and who may effectuate such service within the RTSC itself, the practitioner should draft the RTSC to include the method of service. For example, the practitioner may include in the Rule a paragraph such as:
The court will let the practitioner know quickly enough if it requires a more specific service method.
Service upon an Agent
Generally, an agent, such as a lawyer, may accept service of a RTSC only if specifically authorized by appointment or by law to receive such service. Rule 4(d)(1), SCRCP. Service upon an agent is not effective unless the agent has "a known actual appointment for the specific purpose of receiving process." See, e.g., Moore v. Simpson, 322 S.C. 518, 523, 473 S.E.2d 64, 67 (Ct. App. 1996).
In Bakala v. Bakala, 352 S.C. 612, 576 S.E.2d 156 (2003), the defendant, who was in the Czech Republic, objected to the efficacy of the service of the RTSC as it did not comport with the Hague Convention. The Supreme Court of South Carolina agreed, stating "the better practice here would have been for the family court to appoint an agent for service when Husband's counsel was relieved. See Rule 4(e), SCRCP ('Whenever ... an order of court provides for service of a summons and complaint or of a notice, or an order upon a party not an inhabitant of or found within the State, service shall be made under the circumstances and in the manner prescribed by the ... order')." Id. at 629.
Unless an exceptional circumstance exists, personally serving the contemnor rather than an agent is generally the better practice.
Response to a Rule to Show Cause
Once the Rule is executed and served, the burden shifts to the respondent to establish the justification for his inability to comply with the order. Pratt v. South Carolina Department of Social Services, 283 S.C. 550, 324 S.E.2d 97 (Ct. App. 1984). The alleged contemnor has several options, although the only real requirement is to show up at the scheduled hearing. The contemnor may file a "Return on the Rule" in response to a RTSC, which may deny or object to the allegations made in the verified complaint or affidavit. The contemnor may also file his or her own affidavit in opposition to the Rule, or his or her own RTSC to deny and contradict the Rule. A contemnor may also challenge the RTSC on the basis of lack of personal or subject matter jurisdiction by filing a motion to quash the rule.
In some cases, an alleged contemnor files a "counterclaim" in the return, presumably to save the fee that would be charged to file an opposing RTSC. Based on anecdotal evidence gathered from South Carolina lawyers, these "counterclaims" are allowed, or tolerated, in some South Carolina courts, but not in others. A court has the discretion to hear and decide the any and all procedural disputes at the scheduled RTSC hearing, provided due process has been satisfied.
The failure to file a responsive pleading to a RTSC may result in the admission of the factual allegations in the accompanying petition, affidavit or verified complaint, but not of the legal conclusions. 60 C.J.S. Motions & Orders § 21 (2002).
Failure to Appear
It is never a good idea to ignore a RTSC. Failing to appear, or other non-compliance with the RTSC, may well result in a contempt charge, a bench warrant, and other appropriate sanctions, including jail time. If a defendant ignores a RTSC or fails to appear at the scheduled hearing, the court has the authority to find the defendant in contempt, and may have the defendant arrested and imprisoned. A neglected RTSC may result in the defendant acquiring status as a fugitive. See, e.g., Scelba v. Scelba, 342 S.C. 223, 535 S.E.2d 668 (Ct. App. 2000).
Damages for Contemptuous Conduct
In addition to other sanctions, the court may also order the contemnor to pay reasonable compensation to the complainant for being forced to petition the court to enforce the order. Curlee v. Howle, 277 S.C. 377, 287 S.E.2d 915 (1982); Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 607, 567 S.E.2d 514, 519 (Ct. App. 2002). Compensatory contempt damages reimburse the party for the costs incurred in having to force the non-complying party to obey the court's orders. The compensation is to restore the plaintiff as nearly as possible to his or her original position. Poston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86, 90 (1998); Floyd v. Floyd, 615 S.E.2d 465, 473, 365 S.C. 56 (Ct. App. 2005).
Family Court Specifics
Because the RTSC appears to be utilized most frequently in Family Court to enforce orders related to custody, visitation, child support and alimony payments, South Carolina's legislature enacted two Family Court rules addressing the nonpayment of familial support paid through the Family Court Clerk of Court (Rule 24, SCRFC) and the pro se enforcement of visitation orders (Rule 27, SCRFC).
Rule 24 is an automatic remedy for the nonpayment of child support or periodic alimony ordered to be paid through the clerk of court. The Rule requires the clerk of court to monitor these payments at least once per month. Rule 24(a), SCRFC. When a party is in arrears, i.e., when the payment is over five days late (id.), the clerk of court has the obligation to automatically "issue a rule to show cause and an affidavit identifying the order of the court which requires such payments to be made and the amount of the arrearage, directing the party in arrears to appear in court at a specific time and date." Rule 24(b), SCRFC. The clerk's RTSC has "the same force and effect as a rule to show cause issued by a judge." Id. The complainant does not have to do or file anything, including get an attorney, and is not required to appear at the RTSC hearing, although it would probably be in his or her best interests to do so.
If a party wants to enforce an order for the payment of child support that had not been ordered paid through the clerk of court, the party must submit his or her own RTSC and verified pleading or affidavit to the court. The usual $25.00 filing fee is waived if the RTSC is filed to enforce an order for child support or spousal support. See the August 16, 2002 Memorandum written by the Honorable Jean H. Toal, Chief Justice of the South Carolina Supreme Court.
Pursuant to Rule 27, SCRFC, a party may instigate a contempt proceeding to enforce visitation orders pro se by notifying the court by affidavit of the contemptuous conduct. When a party submits such an affidavit, the clerk of court issues the RTSC directing the other party to appear in court. This RTSC also has the same force and effect as if issued by a judge. Rule 27(c), SCFCR. The court will then conduct a hearing to determine if the non-complying party is in contempt. At the hearing the court may modify the visitation, if in the best interest of the child, or force compliance with the prior order, or both. Filing a RTSC to enforce custody or visitation order in Family Court requires the payment of the $25.00 filing fee. See S.C. Code Ann. § 8-21-320 (Cum. Supp. 2006). Of course, a party may always retain a lawyer to draft and submit the Rule to Show Cause and to represent the party's interests and position at the hearing.
Although some procedural questions remain, rules to show cause are an effective tool with which to enforce a court's decree, order or judgment.