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Appeal of contempt order where NO service of process was done

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  • chemelt
    I am in SC and know the laws vary by state but there is overlap so i am willing to entertain any learned opinions on this issue. I just received in the mail a
    Message 1 of 1 , Nov 6, 2005
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      I am in SC and know the laws vary by state but there is overlap so i
      am willing to entertain any learned opinions on this issue.

      I just received in the mail a 12 page order which includes my
      incarceration in the country jail for 30 days (can be purged if i pay
      my ex spouce 8500 by Nov 20) for contempt of court. I am a single
      working mother. If i go to jail i will lose my son (dont know what the
      state will do, give him to his out of state father or put him in
      somekind of foster home or what???)

      My first question is how this works. If i dont pay this "order" does
      the sherrif just come take me? Does the judge who issued the order
      have to issue a warrant? Does he have to hold a hearing of any kind
      before issuing such a warrant?

      The problem is i was never served any complaint or rule to show cause
      noticing me of this complaint or hearing. There are no findings of
      fact that addess the "service of process". The 12 page order only
      speaks of service in one line that is in the textual portion of the
      order before the findings of fact.

      Statement - "The post office attempted to deliver these pleadings to
      the defendant's residence on October 8, 2005 at 11:52 am. A notice
      was left, but the pleadings went unclaimed."

      If a notice was left, I never saw it.

      There were only 8 business days between the attempted service and the
      hearing. Therefore, the post office would not have even returned the
      mail to plaintiff as unclaimed (they keep it 15 days before returning
      it). Plaintiff most likely "evidenced" my failure to claim
      the mail from some hearsay tracking information he got off the internet.

      In my state you can serve someone by certified mail (if they accept
      it) but if service fails for refuseal or failure to claim the mail
      then plaintiff is still responsible for serving it by alternative
      means (personal, publication, regular mail) see below.

      Rule 4(d)(8) SCRCP - "If delivery of the process is refused or is
      returned undelivered, service shall be made as otherwise provided by
      these rules."

      Nonetheless, the judge had no affidavit of service on first hand
      knowledge in front of him and ruled from hearsay evidence that i had
      "intentionally avoided the process of the court".

      Under the service rules even if i had intentionally avoided the
      process, which i didn't, i still have to be served. I have found some
      old case law that says that defendants threw papers on the ground or
      back in the face of process servers that that was "considered"
      service. But to say that mail wasn't claimed was service is absurd
      and not based on fact or law.

      The order is void on its face for want of personal jurisdiction. Since
      the order is a contempt order it is a final order and immediately
      appealable.

      So here is my question, issue.

      Do i appeal the void on its face order for lack of service, or do i do
      a post trial motion (60b, ??) to have it vacated and then appeal the
      denial (assuming thats what happens and based on past experience it
      will be denied) AND the contempt order?

      My worry is does the contempt order become the law of the case if it
      is not appealed within the 30 days allowed, a 60b motion does NOT toll
      the time for appeal.

      Any ideas?
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