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RE: [tips_and_tricks] Any tips or tricks?

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  • 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 1 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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