PRICE v. TURNER

Reset A A Font size: Print

Supreme Court of South Carolina.

Rebecca PRICE, Respondent, v. Michael D. TURNER, Appellant.

No. 26793.

Decided: March 29, 2010

Derek J. Enderlin, of Ross and Enderlin, of Greenville, and Appellate Defender Katherine H. Hudgins, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant. Rebecca L. Price, pro se, of Westminster, for Respondent. Calvin Andrew Carroll, of N. Charleston, Malia N. Brink, of Washington, Stephen J. McConnell, of Meghan, Rohling, Kelly, Dechert, LLP, of Philadelphia, Susan King Dunn, of Charleston, for Amici Curiae, The American Civil Liberties Union Foundation, South Carolina National Office, the Brennan Center for Justice, The National Association of Criminal Defense Lawyers, The National Legal Aid & Defender Association, and the South Carolina Association of Criminal Defense Lawyers.

In this case, Michael R. Turner (Appellant) appeals the family court's order holding Appellant in contempt of court for failure to pay child support. We certified the appeal pursuant to Rule 204(b), SCACR, and affirm.

FACTUAL/PROCEDURAL BACKGROUND

In January 2008, Appellant appeared in family court on a rule to show cause for failure to pay child support. Appellant was not represented by counsel. At the time of the hearing, Appellant owed nearly six thousand dollars in child support payments and had not made a payment in a year and a half. Appellant testified that his failure to pay was due to incarceration, drug addiction, unemployment, and injury. The court found Appellant in willful contempt of the child support order and sentenced him to twelve months in a detention center, which sentence he could purge himself of and avoid by full payment of his child support arrearage.

Appellant appealed the family court's order to the court of appeals. This Court certified the case pursuant to Rule 204(b), SCACR.

STANDARD OF REVIEW

A finding of contempt rests within the sound discretion of the trial judge. Durlach v. Durlach, 359 S.C. 64, 70, 596 S.E.2d 908, 912 (2004) (citation omitted). Such a finding should not be disturbed on appeal unless it is unsupported by the evidence or the judge has abused his discretion. Id.

LAW/ANALYSIS

Appellant argues the Sixth and Fourteenth Amendments of the United States Constitution guarantee him, as an indigent defendant in family court, the right to appointed counsel before being sentenced to one year imprisonment for civil contempt. We disagree.

The purpose of civil contempt is to coerce the defendant to comply with the court's order. Poston v. Poston, 331 S.C. 106, 111, 502 S.E.2d 86, 88 (1998). In contrast, criminal contempt is intended to punish a party for disobedience and disrespect. Id. Civil contempt sanctions are conditioned on compliance with the court's order. Id. at 112, 502 S.E.2d at 89. Criminal contempt sanctions are unconditional. Id. at 111, 502 S.E.2d at 88. Thus, when the court orders imprisonment for contempt, whether the sanction is civil or criminal depends upon whether the sentence is conditional or for a definite period. Id. at 111-12, 502 S.E.2d at 89. A contemnor imprisoned for civil contempt is said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do. Id. at 112, 502 S.E.2d at 89. This distinction between civil and criminal contempt is crucial because criminal contempt triggers additional constitutional safeguards not mandated in civil contempt proceedings. See Miller v. Miller, 375 S.C. 443, 457, 652 S.E.2d 754, 761 (Ct.App.2007).

Here, the family court judge found Appellant in willful contempt of the support order and sentenced him to twelve months in a detention facility, stating, “He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release.”1 This conditional sentence is a classic civil contempt sanction. Therefore, Appellant is not constitutionally entitled to appointment of counsel.2

CONCLUSION

We hold that Appellant does not have a constitutional right to appointed counsel before being incarcerated for civil contempt for nonsupport. Because Appellant may avoid the sentence altogether by complying with the court's previous support order, he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty. We affirm the family court's ruling.

Chief Justice TOAL.

BEATTY, KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in result only.