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  • chemelt
    Ok, I live in SC. This is a family court issue. I recently received a signed and entered DEFAULT contempt order. The order states i was not present at the
    Message 1 of 2 , Dec 1, 2005
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      Ok, I live in SC. This is a family court issue.

      I recently received a signed and entered DEFAULT contempt order. The
      order states i was not present at the hearing. The order states (not
      as a finding just a comment) that I was served with the contempt
      complaint and rule to show cause when the post office allegedly left a
      single notice in my mailbox of an attempt to deliver certified mail.

      I dont know about your state by in my state certified mail has to be
      delivered and signed for it to be considered served.

      The "default" contempt order ordered me to pay my ex over $8500 within
      4 days of receipt of the order to purge myself of contempt OR turn
      myself into the sherriff to be incarcerated for 30 days.

      I did neither.

      The day after receiving the "default" contempt order i made a motion
      to vacate the default contempt order for failure of my ex to serve
      process on me. I faxed it to the judge and sent it to him certified mail.

      The following day i served and filed an emergency ex-parte motion to
      stay enforcement of the [void] contempt order until after my motion to
      vacate was heard.

      the judge had in his possession both motions when on Nov 22 he signed
      a bench warrant for my arrest.

      On Nov 28 at 1:30 two sherrifs showed up at my door to arrest me. I
      unfortunately didn't see them approach my house and they saw me. I
      stupidily opened my door. Bad move.

      I spent 27 hours in jail before i could post a bond to get out. I am
      a single mother. My ex lives in tx. He had the sherrif time my
      arrest to coincide with his flight arrival from tx so that he could
      steal my son and take him to tx. (amazing what a couple bribs can do
      for you).

      At my bond hearing the judge (different one than entered the default
      against me) told me that my motions to vacate (scheduled to be heard
      on Jan 11 2006) were going to be moved up to dec 5, 2005 giving me
      only 3 business days notice. I was in no condition to object as i
      hadn't slept or eat anything for over 24 hours and was a wreck
      (couldn't think).

      The judge told me that at my hearing on my motion to vacate if the
      judge denied it (how can he?????) i would have to pay the 8500 on the
      spot or be taken back to jail to serve my 30 days.

      I dont have 8500 and if i did i couldn't pay it because to do so would
      purge my "contempt" and make moot any appeal of that order (at least
      that is how i read the law in sc).

      I can't see anyway that this judge could rule against me. But the
      judges in this state are idiots, incompetent, and /or corrupt as hell,
      so i expect that it will be denied.

      What if anything can i do??????? I cant go back to jail.

      I also want to hear any ideas on what causes of action i have to sue
      the hell out of my ex, his attorney, and this judge for jailing me on
      a void order (no notice, no jurisdiction).

      Thanks
    • Christopher Dilts
      Hello Well first as in most states a writ of certiorar is what is used to challedge a contemp order although it seems in yours general appeal process is used.
      Message 2 of 2 , Dec 5, 2005
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        Hello

        Well first as in most states a writ of certiorar is what is used to challedge a contemp order although it seems in yours general appeal process is used. This in most cases go to higher court there are a few things you need to keep in mind, first you have to be in willful disobence to a valid court order to be held in civil contempt (see case law below), second as you will see from the attached states of both civil contempt rules and family contempt do not allow contempt fines to be over 1500 dollars, thrid if you never recieved notice of contempt order then the court does not have jurisdicition over the partie to order contempt making it void, forth in order for contempt to stand the party asserting must show from evidence that you where contemptous, and finallly the court has to follow the proceedures sit in the attached rules when giving you hearing on contempt. What I would do is first do your motion to vacate which you have and at the hearing make sure to bring up both the Family Courts limitations for cotempt, there is no evidence to show I am in will ful disobence to a valid order, make and submit an affidavit stating that and that you never recieved notice, and finally the court failed to have jurisdicition since no service was rendered (hopefull they have no evidence it was) therefore depriving the court of personal jurisdicition and subject matter for depriving you of fundmental due process of law that caused your imprisonment. If the court still finds you in contempt do not pay cause your right will have be wavied.(as see in case law below is an imediate and ablsote right) Have you notice of appeal , petition for appeal,and breif in support of it ready for that hearing so you can have it filed imediating. As you can see from the case law below if they fail to establish you had notice and where in willful disobence to an order your appeal should be granted. As to possible cause of action the only way to sue judge is if there is no evidence of you recieving notice or are you awary of any order that requires something, you have an affidavit (get affidavit in as soon as possible on the file) supporting your not in willful disobence, you never recieved notice, and there is no evidence on the the record to support plaintiffs burden that I am, and you sucessfully followed proceed to establish that it is a void order then you will have a Title 42 cause of action. As to the time in jail most states have Start Tort Acts and Commoisn that allow for general recover for damages by the state. As to your husband if he was the one who moved for the contempt and he stated knowing that you did have service when you did not then I would sugguest either sueing in federal court or state court under Title 42 1983 malicous prosecution (since he caused the imprisonment), also state torts such as invasion of privacy, intentional effection of emotional damage, defamation, and any others that you can think of. As to the attorney start with a administrative bar complaint for violation of his ethics and a negligance action.

        Remember if the judge does not dismiss complaint then this should also be good grounds to actually either have cased dismissed and or move to recuse the judge. I do hope this helps any question feel free to email.

        Jamie

        Link to KeyCite citing references
        Floyd v. Floyd, 2005 WL 1389057
        S.C.App.,2005
        Contempt results from the willful disobedience of an order of the court, and before a court may hold a person in contempt, the record must clearly and specifically demonstrate the acts or conduct upon which such finding is based.

        Thornton v. Alford, 260 S.E.2d 179
        S.C.,1979
        Disobedience of order issued without jurisdiction is not contempt.

        Haselden v. Haselden, 552 S.E.2d 329
        S.C.App.,2001
        Contempt results from the willful disobedience of a court order.

        Long v. McMillan, 86 S.E.2d 477
        S.C.,1955
        Disobedience of a void order, judgment or decree, or one issued without jurisdiction of subject matter and parties litigant, does not constitute "contempt."
        Long v. McMillan, 86 S.E.2d 477
        S.C.,1955
        Disobedience of a void order, judgment or decree, or one issued without jurisdiction of subject matter and parties litigant, does not constitute "contempt."



        Browning v. Browning, 2005 WL 2671253
        S.C.App.,2005
        In a proceeding for contempt for violation of a court order, the moving party must show the existence of a court order and the facts establishing the respondent's noncompliance with the order. Code 1976, � 20-7-1350


        Floyd v. Floyd, 2005 WL 1389057
        Key Number graphic93 CONTEMPT
        Key Number graphic93II Power to Punish, and Proceedings Therefor
        Key Number graphic93k66 Appeal or Error
        Key Number graphic93k66(2) k. Decisions reviewable.
        S.C.App.,2005
        A finding of contempt is immediately appealable regardless of whether damages have been determined.

         

        Chappell v. Chappell, 318 S.E.2d 590
        S.C.App.,1984
        Payment of fine imposed in contempt proceedings waives right of review of contempt order.

         

        State v. Hunt, 35 S.C.L. 322
        S.C.,1850
        Every court has the power to fine for contempt, but notwithstanding this undeniable power, still whenever it is exercised, every citizen has the right to appeal.

        Bakala v. Bakala, 2003 WL 173712
        Key Number graphic93 CONTEMPT
        Key Number graphic93II Power to Punish, and Proceedings Therefor
        Key Number graphic93k66 Appeal or Error
        Key Number graphic93k66(5) k. Transfer of cause and supersedeas.
        S.C.,2003
        An order of civil contempt is not automatically stayed on appeal.

        Browning v. Browning, 2005 WL 2671253
        Key Number graphic93 CONTEMPT
        Key Number graphic93II Power to Punish, and Proceedings Therefor
        Key Number graphic93k66 Appeal or Error
        Key Number graphic93k66(7) k. Review.
        S.C.App.,2005
        Trial court's determination regarding contempt is subject to reversal on appeal where it is based on findings that are without evidentiary support or where there has been an abuse of discretion. Code 1976, � 20-7-1350.

        Burnell v. Burnell, 2004 WL 1149644
        S.C.App.,2004
        A finding of contempt should not be reversed on appeal unless it is without evidentiary support or amounts to an abuse of discretion.

         


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