Appeal of contempt order where NO service of process was done
- 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
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
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.