Kari Lynn Bristol v. Geoffrey M. Lipnevicius ( 2024 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Kari Lynn Bristol F/K/A Kari Lynn Lipnevicius,
Respondent,
v.
Geoffrey M. Lipnevicius, Appellant.
Appellate Case No. 2022-001507
Appeal From Richland County
Monét S. Pincus, Family Court Judge
Opinion No. 6085
Heard March 5, 2024 – Filed August 21, 2024
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART
Rebecca Brown West, of Harling & West, LLC, of
Lexington, and David C. Shea, of Shea & Barron, LLC,
of Columbia, for Appellant.
Peter George Currence, of McDougall, Self, Currence &
McLeod, LLP, of Columbia, for Respondent.
VINSON, J.: Geoffrey M. Lipnevicius (Father) appeals the family court's order
dismissing as moot his counterclaim for attorney's fees made in response to Kari
Bristol's (Mother's) action for modification of visitation, his four pending contempt
actions, and his request to register an August 2018 foreign order for enforcement.
Father argues the family court erred by finding these issues were rendered moot on
the ground that the child who was the subject of the underlying modification action
turned eighteen before the court was able to hold a final hearing on the
modification and contempt actions. We affirm in part and reverse and remand in
part.
FACTS
Mother and Father divorced in Michigan in 2007. At the time of the parties'
divorce, Father resided in Ohio and Mother and the parties' minor son (Son) lived
in Michigan. In 2011, Mother told Father she was moving to South Carolina with
Son, and Father initiated an action in Michigan. On November 4, 2013, a
Michigan circuit court judge issued a stipulated order modifying the judgment of
divorce, which altered certain provisions of the 2007 order and permitted Mother
to change Son's domicile to South Carolina. This order also included a visitation
schedule, providing Father would have visitation with Son in Ohio nine times per
year, including thirty-eight consecutive days during summer break.
Mother filed an action in Michigan on July 9, 2018, requesting that the Michigan
circuit court transfer jurisdiction to South Carolina, or, in the alternative, modify
parenting time. Before the Michigan circuit court issued a written order ruling
upon the action, Mother filed a summons and complaint in South Carolina on July
25, 2018, seeking modification of parenting time and an order domesticating and
registering the 2007 Michigan judgment of divorce and 2013 stipulated order
modifying the judgment of divorce. As to her request to modify parenting time,
Mother requested that visitation take place temporarily in South Carolina and that
Son not travel to Ohio for visitation until he was comfortable with visitation taking
place in Ohio. Mother alleged it was emotionally and physically difficult for Son
to travel to Ohio for visitation. Mother additionally requested the family court
exercise emergency jurisdiction pursuant to section 63-15-336 of the Uniform
Child Custody Jurisdiction and Enforcement Act (the UCCJEA)1 and requested the
court appoint a guardian ad litem and award attorney's fees, costs, and suit money.
The South Carolina family court accepted emergency jurisdiction on the same day.
On August 14, 2018, the Michigan circuit court issued an order denying Mother's
requests to transfer jurisdiction to South Carolina and modify Father's parenting
1
See S.C. Code. Ann. § 63-15-336(A) (2010) ("A court of this State has temporary
emergency jurisdiction if the child is present in this State and the child has been
abandoned or it is necessary in an emergency to protect the child because the child,
or a sibling or parent of the child, is subjected to or threatened with mistreatment
or abuse.").
time (the Michigan visitation order). It issued a second order contemporaneously,
awarding Father seventy-seven days of makeup visitation with Son and requiring
Mother to pay Father $1,500 in attorney's fees and $4,024.50 for reimbursement of
the cost of eight airline tickets (the Michigan contempt order) (collectively, the
2018 Michigan orders).
Father moved to dismiss Mother's South Carolina action and filed an answer and
counterclaim seeking modification of custody and visitation and attorney's fees and
costs. Pursuant to Father's request, the family court held a telephone conference
with the Michigan circuit court judge regarding jurisdiction on September 19,
2018. On December 3, 2018, the family court issued a supplemental order
determining the Michigan circuit court relinquished jurisdiction, the South
Carolina family court properly accepted emergency jurisdiction by order dated July
25, 2018, and South Carolina had jurisdiction as a matter of law pursuant to section
63-15-334 of the UCCJEA.2 The family court further ruled South Carolina would
retain jurisdiction as exercised on an emergency basis and determine all issues
regarding the registration and enforceability of the Michigan contempt order.
Father filed his amended answer and counterclaim on September 21, 2018. In
addition to his prior counterclaims, Father sought registration and enforcement of
the 2018 Michigan orders. He additionally filed an application and affidavit for
registration of an out-of-state child custody order on February 21, 2019, seeking to
register the 2018 Michigan orders and citing section 63-15-358(A) of the
UCCJEA.3 On February 7, 2020, he requested a hearing on the matter.
Following a December 19, 2018 temporary hearing, the family court issued a
temporary order on February 13, 2019, stating it would keep the status quo of the
July 25, 2018 order, with Father's visitation to take place in South Carolina until
the guardian ad litem investigated the matter.
On June 4, 2019, the family court heard Father's motion for supplemental pendente
lite relief. On June 18, 2019, the family court issued an order holding Father was
to have parenting time in the summer of 2019 from June 19 through July 3, July
2
See S.C. Code Ann. § 63-15-334 (2010) (setting forth the narrow circumstances
under which a court of this state may modify a child custody determination made
by a court of another state).
3
See S.C. Code Ann. § 63-15-358(A) (2010) ("A child custody determination
issued by a court of another state may be registered in this State, with or without a
simultaneous request for enforcement . . . .").
12–27, and August 3–14. It did not set forth a specific visitation schedule for the
school year but instructed the parties to follow the parenting schedule as set forth
in the Michigan visitation order with respect to Thanksgiving, Christmas, and
spring break.
Between July 16, 2019, and May 11, 2020, Father filed six contempt actions
against Mother for violations of the June 18, 2019 order. Father withdrew one of
these actions and the family court issued rules to show cause in the remaining five
actions. The family court ruled on the merits of only one of the contempt actions.
In that action, the family court found Mother in willful contempt of the June 18,
2019 order but expressed its reluctance in doing so. The family court reserved the
issue of Father's request for attorney's fees for determination at the final hearing.
However, in October 2022, the parties consented to the family court ruling on the
issue of attorney's fees and costs; it awarded Father $3,390 in attorney's fees and
costs as compensatory damages.
Son turned eighteen in March 2021. The family court held a hearing to determine
whether it still possessed jurisdiction over the action. On April 26, 2022, the
family court issued the order on appeal, dismissing the modification action as
moot. The family court held Son's emancipation mooted Mother's claims for
registration of the 2007 and 2013 Michigan orders and modification of parenting
time as well as Father's claims for modification of custody and visitation. The
family court held Father's request to register and enforce the 2018 Michigan orders
was also moot. The family court stated that even if the Michigan court had
jurisdiction when it entered the 2018 Michigan orders, the award of attorney's fees
in the order was a money judgment and the family court did not have jurisdiction
to enforce such a judgment from another state.
The family court additionally dismissed the four pending rules to show cause
issued December 19, 2020; May 13, 2020; September 26, 2019; and July 16, 2019.
The family court concluded that because the subject matter of this case was moot,
and the court therefore could not issue a final order on the merits as to any
child-related issue, all of the family court's interim or temporary orders issued in
this case had no legal effect and were no longer enforceable. The family court
reasoned that when an action becomes moot because the subject child turns
eighteen, the temporary orders issued in such a case could not survive the dismissal
of the underlying action. The family court stated it therefore had no power to grant
Father any effectual relief. The family court further rejected Father's argument that
even if the court could not enforce the June 18, 2019 order, it could award
compensatory damages for Mother's violations. The family court reasoned Father's
contempt actions showed he desired compliance with the temporary visitation
orders and his requested relief was to compel such compliance—relief the family
court could not give.
The family court additionally dismissed Father's claim for attorney's fees and costs,
finding such claim did not survive because the underlying modification action was
dismissed as moot. The family court stated, "[A] mooted action—which presents
no case or controversy—falls outside the . . . jurisdiction of this court, and
therefore the court declines to consider the only cause of action remaining in this
case, that of attorney's fees and costs." The family court reasoned that a claim for
attorney's fees in a modification action was not an independent claim but was
instead incidental to the claim for modification. The family court concluded it did
not have jurisdiction over such claim when it could not rule on the merits of the
underlying modification action.
Finally, the family court held the guardian ad litem was entitled to be paid for the
fees incurred up to Son's eighteenth birthday so long as the fees were within the
court-ordered cap of $10,000. The family court reasoned that "[u]nlike an award
of attorney's fees and costs, which is ultimately decided at the merits hearing, the
[g]uardian's fees . . . were already set by the court up to a cap, based on the
applicable statutory factors[4] using facts existing at the time." In addition, the
family court had already ordered that the parties would equally divide the
guardian's fees and costs.
Father filed a motion to reconsider the April 2022 order, and the family court
denied the motion.5 This appeal followed.
4
See S.C. Code Ann. § 63-3-850(A) (2010) ("At the time of appointment of a
guardian ad litem, the family court judge must set forth the method and rate of
compensation for the guardian ad litem, including an initial authorization of a fee
based on the facts of the case."); S.C. Code Ann. § 63-3-850(B) (2010) ("A
guardian appointed by the court is entitled to reasonable compensation, subject to
the review and approval of the court. In determining the reasonableness of the fees
and costs, the court must take into account: (1) the complexity of the issues before
the court; (2) the contentiousness of the litigation; (3) the time expended by the
guardian; (4) the expenses reasonably incurred by the guardian; (5) the financial
ability of each party to pay fees and costs; and (6) any other factors the court
considers necessary.").
5
However, the family court did correct a minor typographical error in the order.
ISSUES ON APPEAL
I. Did the family court err by concluding Father's counterclaim for attorney's fees
incurred in the child visitation modification case did not survive Son's
emancipation?
II. Did the family court err by concluding it lacked jurisdiction to enforce the
June 18, 2019 temporary order for visitation when Son emancipated prior to the
contempt actions being heard?
III. Did the family court err by concluding it lacked jurisdiction to register and
enforce a foreign order awarding makeup visitation, attorney's fees, and cost
reimbursement after Son emancipated?
STANDARD OF REVIEW
"On appeal from the family court, the appellate court reviews factual and legal issues
de novo." Taylor v. Taylor, 434 S.C. 307, 315, 863 S.E.2d 335, 339 (Ct. App. 2021).
ANALYSIS
I. Attorney's Fees in Modification Action
Father argues the family court had jurisdiction of the issue of attorney's fees
notwithstanding Son's emancipation. We disagree.
"Attorney['s] fees are not ordinarily recoverable unless authorized by contract or
statute." S.C. Dep't of Soc. Servs. v. Hyatt, 277 S.C. 152, 153, 283 S.E.2d 445, 446
(1981).
The family court has exclusive jurisdiction:
....
. . . to hear and determine an action where either party in
his or her complaint, answer, counterclaim, or motion for
pendente lite relief prays for the allowance of suit money
pendente lite and permanently. In this action the court
shall allow a reasonable sum for the claim if it appears
well-founded. Suit money, including attorney's fees, may
be assessed for or against a party to an action brought in
or subject to the jurisdiction of the family court.
S.C. Code Ann. § 63-3-530(A)(38) (2010 & Supp. 2023) (emphasis added).
In determining whether an attorney's fee should be
awarded, the following factors should be considered:
(1) the party's ability to pay his/her own attorney's fee;
(2) beneficial results obtained by the attorney;
(3) the parties' respective financial conditions;
(4) effect of the attorney's fee on each party's standard of
living.
E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992); see also
Miteva v. Robinson, 418 S.C. 447, 465, 792 S.E.2d 920, 930 (Ct. App. 2016)
("[T]he beneficial results factor is only one of several factors to consider in
deciding whether or not to award attorney's fees.").
"Before any action can be maintained, there must exist a justiciable controversy."
Byrd v. Irmo High Sch., 321 S.C. 426, 430, 468 S.E.2d 861, 864 (1996). "A
justiciable controversy is a real and substantial controversy which is appropriate
for judicial determination, as distinguished from a dispute or difference of a
contingent, hypothetical[,] or abstract character." Id. at 430-31, 468 S.E.2d at 864.
"A moot case exists where a judgment rendered by the court will have no practical
legal effect upon an existing controversy because an intervening event renders any
grant of effectual relief impossible for the reviewing court." Sloan v. Friends of
Hunley, Inc., 369 S.C. 20, 26, 630 S.E.2d 474, 477 (2006).
We hold the family court did not err by dismissing Father's claim for attorney's
fees. Father argues the case of Holcombe v. Hardee supports his position that
Son's emancipation did not warrant dismissal of his claim for attorney's fees. 304
S.C. 522, 405 S.E.2d 821 (1991). In Holcombe, our supreme court held the father's
argument that the family court erred by refusing to require the mother to pay child
support was not moot even though the child had reached the age of eighteen
because "a question still remain[ed] as to whether the father should have received
child support before [the child] attained age eighteen." Id. at 524, 405 S.E.2d at
822. Father argues the analysis in Holcombe is no different than the attorney's fees
issue in this case because both parties' claims for fees attached before Son
emancipated. We find Holcombe does not support Father's position. In Holcombe,
the court found the substantive issue of child support was not moot. Id. Here,
however, the parties agree the substantive issue of visitation modification is moot.
The statutory language that "attorney's fees[] may be assessed for or against a party
to an action brought in or subject to the jurisdiction of the family court" indicates a
claim for attorney's fees is not an independent action but instead requires a
preexisting cause of action within the family court's jurisdiction.
§ 63-3-530(A)(38) (emphasis added); see Hodges v. Rainey, 341 S.C. 79, 85, 533
S.E.2d 578, 581 (2000) ("The cardinal rule of statutory construction is to ascertain
and effectuate the intent of the legislature."). Thus, we conclude a claim for
attorney's fees is derivative of the substantive claim before the family court and is
therefore not an independent cause of action. We hold that because the substantive
issue here is moot, Father's derivative claim for attorney's fees is likewise moot.
Father next argues our supreme court has permitted a claim for attorney's fees to
survive a plaintiff's Rule 41(a)(2), SCRCP,6 motion for voluntary nonsuit and cites
to Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990). We hold this
case is distinguishable. In Bowen & Smoot, our supreme court took the
extraordinary action of considering the denial of a Rule 12(b)(6), SCRCP, motion
to dismiss a law firm's action for attorney's fees when it brought the action against
its former client's children. 301 S.C. at 264-65, 391 S.E.2d at 559. In that case, the
attorneys who previously represented a mother in several domestic and bankruptcy
actions filed a lawsuit seeking attorney's fees from the mother's children on the
ground that the children benefitted from the attorneys' services because they
received a judgment for child support. Id. at 264, 391 S.E.2d at 559. Our supreme
court held,
Although the denial of a 12(b)(6) motion is not
immediately appealable, we feel compelled to state that
an attorney may not maintain an action for attorney's fees
against his client's children on the theory that they
benefitted from a judgment awarding child support.
Child support is awarded for the support necessary for
the health and well being of the child. It is not proper for
6
See Rule 41(a)(2), SCRCP ("Except as provided in [Rule
41(a)](1)[, SCRCP,] . . . an action shall not be dismissed at the plaintiff's instance
save upon order of the court . . . . If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff's motion to dismiss, the
action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court.").
an attorney to attempt to take part of this support to
satisfy attorney's fees incurred by the mother of the
children.
Id. at 265, 391 S.E.2d at 559 (citation omitted). It concluded the circuit court did
not err by dismissing the entire action without prejudice when the attorneys moved
for a voluntary dismissal pursuant to Rule 41(a)(2), but nevertheless reversed the
circuit court's denial of the children's request for attorney's fees. Id. at 266, 391
S.E.2d at 560. In doing so, the court found "that the [c]hildren were entitled to an
award for having to defend against this meritless claim." Id. We conclude this
case is not analogous to the situation presented in Bowen & Smoot. First, although
our supreme court found the children were entitled to an award of attorney's fees
even though it found the circuit court did not err in dismissing the action pursuant
to Rule 41(a)(2), the opinion did not specify whether the children's request for
attorney's fees was made as a counterclaim or hold that such a claim survived the
voluntary nonsuit as an independent action. Second, this case involves a moot
issue rather than a voluntary nonsuit under Rule 41(a)(2).7 Thus, we find Bowen &
Smoot is distinguishable from this case.
Further, litigating the issue of attorney's fees would not promote judicial economy
because it would require the family court to consider the merits of a moot issue.
See Byrd, 321 S.C. at 430, 468 S.E.2d at 864 ("Before any action can be
maintained, there must exist a justiciable controversy."); id. at 430-31, 468 S.E.2d
at 864 ("A justiciable controversy is a real and substantial controversy which is
appropriate for judicial determination, as distinguished from a dispute or difference
of a contingent, hypothetical or abstract character."); see also E.D.M., 307 S.C. at
476-77, 415 S.E.2d at 816 (stating that in deciding whether to assess attorney's fees
against a party, the family court should consider, among other factors, the
beneficial results obtained by the attorney). The family court cannot consider the
beneficial results obtained by the attorney without also considering and deciding
the merits of the underlying claim for modification, which the parties agree is
moot. In fact, Father acknowledges the family court would still need to hear
7
We hold Father's additional argument that the dismissal of the case as moot is
analogous to a voluntary dismissal under Rule 41, SCRCP, is not preserved for
appellate review because Father did not raise this argument to the family court;
rather, he raised it for the first time on appeal. See Wilder Corp. v. Wilke, 330 S.C.
71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised
for the first time on appeal, but must have been raised to and ruled upon by the trial
judge to be preserved for appellate review.").
evidence related to Son and the merits of Mother's complaint to rule on Father's
request for attorney's fees. Even if we were to equate a voluntary nonsuit to
emancipation, we cannot conclude Mother's action is patently meritless as was the
case in Bowen & Smoot. Thus, to determine whether Father is entitled to attorney's
fees, the family court would have to hold a potentially multiple-day hearing on the
merits of a moot issue. Not only would this result in the parties incurring
additional attorney's fees, but requiring the court to consider a moot issue would
not promote the interests of judicial economy. See Byrd, 321 S.C. at 430-31, 468
S.E.2d at 864 ("A justiciable controversy is a real and substantial controversy
which is appropriate for judicial determination, as distinguished from a dispute or
difference of a contingent, hypothetical or abstract character.").
Father additionally contends, by way of analogy, that the court's determination that
the guardian ad litem was entitled to fees conflicted with its dismissal of his claim
for attorney's fees.8 We disagree. Unlike the analysis the family court must
engage in when awarding attorney's fees, the court sets the guardian's fees ahead of
time as provided by statute and the award of guardian ad litem fees does not
depend upon the outcome of a case. See § 63-3-850(A) ("At the time of
appointment of a guardian ad litem, the family court judge must set forth the
method and rate of compensation for the guardian ad litem, including an initial
authorization of a fee based on the facts of the case."); § 63-3-850(B) ("A guardian
appointed by the court is entitled to reasonable compensation, subject to the review
and approval of the court. In determining the reasonableness of the fees and costs,
the court must take into account: (1) the complexity of the issues before the court;
(2) the contentiousness of the litigation; (3) the time expended by the guardian; (4)
the expenses reasonably incurred by the guardian; (5) the financial ability of each
party to pay fees and costs; and (6) any other factors the court considers
necessary."). Accordingly, we reject Father's argument that the family court's
treatment of the guardian ad litem fees was incongruous with its ruling on the issue
of attorney's fees.
Father next argues this case falls within two exceptions to mootness. Specifically,
he contends the public importance exception applies and that the issue is capable of
repetition yet evading review. We hold neither exception applies.
We hold the public importance exception to mootness does not apply. See Sloan v.
Greenville County, 361 S.C. 568, 570, 606 S.E.2d 464, 465-66 (2004) ("This Court
8
Neither party challenged the family court's decision finding the guardian was
entitled to fees and requiring that the parties to pay such fees on a fifty-fifty basis.
has recognized a 'public importance' exception to mootness holding that 'an
appellate court may decide questions of imperative and manifest urgency to
establish a rule for future conduct in matters of important public interest.'"
(quoting Curtis v. State, 345 S.C. 557, 568, 549 S.E.2d 591, 596 (2001))); see also
id. at 571-72, 606 S.E.2d at 466 (holding this court erred in reversing the circuit
court's dismissal of the suit as moot when even assuming the case presented a
matter of important public interest, the questions posed did not involve matters of
imperative and manifest urgency). This case involves a private action for
modification of visitation and does not involve a state agency or affect the public
generally. Thus, we hold the public importance exception does not apply because
this case does not involve matters of important public interest.
Next, we hold the underlying issue of visitation modification is not an issue that is
capable of repetition, yet evading review. "In evaluating whether a moot issue is
capable of repetition, yet evading review the [appellate c]ourt does not require that
the complaining party be subject to the action again. However, the action must be
one which will truly evade review." Friends of Hunley, Inc., 369 S.C. at 27, 630
S.E.2d at 478 (citation omitted); id. (holding although the "current situation [wa]s
capable of repetition, it [was] not evad[ing] review"); see also Roe v. Wade, 410
U.S. 113, 125 (1973) ("[W]hen, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is so short that the
pregnancy will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive much
beyond the trial stage, and appellate review will be effectively
denied. . . . Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be 'capable of repetition, yet evading review.'"
(quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911))), overruled on
other grounds by Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022).
Here, Father raises valid concerns about the lack of court time available for a
multiple-day contested merits hearing and the accompanying likelihood that
litigants will face a lengthy delay. Notwithstanding such delay, however, many
custody and visitation modification actions will still achieve completion before the
subject child or children reach the age of majority. Thus, we hold this exception to
mootness does not apply.
Finally, Father asserts the family court erroneously relied upon Louthian &
Merritt, P.A. v. Davis in holding Son's emancipation abated Father's claim for
attorney's fees because his claim for attorney's fees was "personal" to him and
could not be maintained as an independent claim. 272 S.C. 330, 251 S.E.2d 757(1979). The family court found the facts of Louthian & Merritt differed from this
case in that, here, neither party died. See id. at 333, 251 S.E.2d at 759 (holding a
wife's claim for attorney's fees in a divorce action was incidental to the divorce
action and therefore "purely personal" and was abated with the divorce action
when she died before the entry of a final decree). Nevertheless, the family court
analogized this case to Louthian & Merritt when it found Father's claim for
attorney's fees was personal to him and thus was abated when the modification
action became moot. Because our conclusion that Father cannot maintain his claim
for attorney's fees as an independent action is dispositive of this issue, we decline
to address the family court's conclusion that his claim for attorney's fees was
personal to him and therefore was abated when the case became moot. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (stating an appellate court need not address an appellant's remaining issues
when the disposition of a prior issue is dispositive).
For the foregoing reasons, we hold the family court did not err by holding that
Son's emancipation rendered Father's counterclaim for attorney's fees in the
underlying visitation modification action moot.
II. Contempt Actions
Father next argues the family court erred in holding Son's emancipation divested it
of jurisdiction to hear Father's four pending contempt actions. Father argues Son's
age affects the contempt actions only in that the family court lacked jurisdiction to
grant one remedy that Father requested, which was for makeup visitation. Father
argued the family court could still award attorney's fees and additional
reimbursements under a compensatory contempt theory, regardless of Son's age.
We agree.
"The power to punish for contempt is inherent in all courts. Its existence is
essential to the preservation of order in judicial proceedings, and to the
enforcement of the judgments, orders and writs of the courts, and consequently to
the due administration of justice." Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d
915, 917 (1982); see also S.C. Code Ann. § 63-3-620 (Supp. 2023) ("An adult who
wil[l]fully violates, neglects, or refuses to obey or perform a lawful order of the
court, or who violates any provision of this chapter, may be proceeded against for
contempt of court.").
"Judicial sanctions in civil contempt proceedings may, in a proper case, be
employed for either or both of two purposes: to coerce the defendant into
compliance with the court's order, and to compensate the complainant for losses
sustained." Curlee, 277 S.C. at 386, 287 S.E.2d at 920 (quoting United States v.
United Mine Workers of Am., 330 U.S. 258, 304-05 (1947)). "Courts, by
exercising their contempt power, can award attorney's fees under a compensatory
contempt theory." Miller v. Miller, 375 S.C. 443, 463, 652 S.E.2d 754, 764 (Ct.
App. 2007). "Compensatory contempt seeks to reimburse the party for the costs it
incurs in forcing the non-complying party to obey the court's orders." Id. "In a
civil contempt proceeding, a contemnor may be required to reimburse a
complainant for the costs he incurred in enforcing the court's prior order, including
reasonable attorney's fees. The award of attorney's fees is not a punishment but an
indemnification to the party who instituted the contempt proceeding." Id. (quoting
Poston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86, 90 (1998)). "Courts u[se]
compensatory contempt to restore the plaintiff as nearly as possible to his original
position. Therefore it is remedial." Curlee, 277 S.C. at 386, 287 S.E.2d at 919.
"[T]he compensatory award should be limited to the complainant's actual loss.
Included in the actual loss are the costs in defending and enforcing the court's
order, including litigation costs and attorney's fees." Id. at 387, 287 S.E.2d at 920.
We hold Father's pending contempt actions were not moot because even though the
family court could no longer order Mother to comply with visitation due to Son's
emancipation, it could still provide Father relief in the form of compensatory
contempt were he to prevail on the merits.9 See Friends of Hunley, Inc., 369 S.C.
at 26, 630 S.E.2d at 477 ("A moot case exists where a judgment rendered by the
court will have no practical legal effect upon an existing controversy because an
intervening event renders any grant of effectual relief impossible for the reviewing
court."). For example, in Curlee, our supreme court upheld the family court's
ruling holding the father in contempt for failing to return the children to the mother
at the end of a three-week visitation period. 277 S.C. at 380-81, 287 S.E.2d at
916-17. In Curlee, by the time the family court held the rule to show cause
hearing, the father had already returned the children to the mother and therefore the
family court could not order relief in the form of requiring the father to comply
with its prior visitation order by returning the children to the mother. See id.
Instead, the family court sentenced the father to one year's imprisonment for
contempt of court, with the opportunity to purge himself of contempt by paying the
mother's expenses incurred in her attempts to find and recover the children in
9
Although Father did not use the term "compensatory contempt" in his four
outstanding contempt actions, Father did request "attorney's fees and costs
associated with [his m]otion and [r]ule concerning [Mother's] violations." See
Miller, 375 S.C. at 463, 652 S.E.2d at 764 ("Courts, by exercising their contempt
power, can award attorney's fees under a compensatory contempt theory.").
Nevada, including lodging, attorney's fees, and detective's fees. Id. at 381, 287
S.E.2d at 917. Our supreme court affirmed this award to the mother as a form of
compensatory contempt for the father's violation of the mother's custodial rights.
Id. at 386-87, 287 S.E.2d at 919-20. Similarly, here, even though the family court
can no longer require Mother to comply with the visitation requirements set forth
in the June 18, 2019 order, it still has the power to hold her in contempt for prior
violations of the order and can award relief in the form of compensatory contempt.
Thus, we hold Curlee supports a conclusion that Father's contempt actions are not
moot even though Son emancipated before the family court could issue a final
ruling on such actions. We further conclude the temporary nature of the June 18,
2019 order does not prevent the family court from exercising its contempt powers
to enforce it because no final hearing on the merits was held in this case so as to
displace such temporary order. See, e.g., Miller, 375 S.C. at 448, 652 S.E.2d at
756 (considering an appeal from the family court's order that held appellant in
contempt for failing to comply with a temporary order).
Further, we hold the Family Court Benchmark, S.C. Sup. Ct. Admin. Order dated
July 24, 2020, does not apply here. In concluding it could no longer enforce the
June 18, 2019 order after Son emancipated, the family court relied, in part, on the
Family Court Benchmark Administrative Order. This order provides that a
domestic relations case may be dismissed without prejudice if the clerk of court
does not receive a written request for a final hearing within 365 days of the date
the case was filed. Id. It further provides that if an action is dismissed for this
reason, "any existing orders in the affected case file which were not final will be
considered null and void and no longer subject to enforcement by this court." Id.
We hold the provisions of the Administrative Order do not apply because this case
was not dismissed due to the parties' failure to request a hearing within 365 days,
and Son's emancipation did not render the June 18, 2019 order null and void.
Rather, we believe the provisions of the Administrative Order exist as an incentive
to parties to comply with its requirements. Accordingly, we decline to extend this
rationale to the facts of this case.
Because we have concluded Son's emancipation did not render Father's contempt
actions moot, we need not address Father's additional argument that exceptions to
mootness applied. See Futch, 335 S.C. at 613, 518 S.E.2d at 598 (stating an
appellate court need not address an appellant's remaining issues when the
disposition of a prior issue is dispositive).
Based upon the foregoing, we reverse the family court's ruling finding Father's
pending contempt actions were moot and remand for further proceedings.
III. Registration and Enforcement of Foreign Order
Father argues the family court erred by declaring moot his request to register the
Michigan contempt order that required Mother to provide him seventy-seven days
of makeup visitation and reimburse him $5,500 for attorney's fees and airline
tickets. Father argues Mother's obligation to reimburse Father should be
enforceable through the family court's contempt powers rather than treated as a
money judgment. We agree.
We hold the family court erred by failing to register the 2018 Michigan orders
pursuant to the UCCJEA. See § 63-15-358(A) ("A child custody determination
issued by a court of another state may be registered in this State, with or without a
simultaneous request for enforcement . . . ."); see also S.C. Code Ann.
§ 63-15-302(3) (2010) ("'Child custody determination' means a judgment, decree,
or other order of a court providing for the legal custody, physical custody, or
visitation with respect to a child. The term includes a permanent, temporary,
initial, and modification order. The term does not include an order relating to child
support or other monetary obligation of an individual."); cf. S.C. Code Ann.
§ 15-35-910(1) (Supp. 2023) (excluding "'custody decree[s]', as defined in
[s]ection 63-15-302 (the U[CCJEA])" from enforcement under the Uniform
Enforcement of Foreign Judgments Act). In February 2019, more than a year prior
to Son's emancipation, Father filed an application and affidavit seeking to register
the 2018 Michigan orders as out-of-state child custody orders under section
63-15-358(A) of the UCCJEA. Because the 2018 Michigan orders involved
visitation with respect to Son, the UCCJEA applied. See § 63-15-302(3) ("'Child
custody determination' means a judgment, decree, or other order of a court
providing for the legal custody, physical custody, or visitation with respect to a
child. The term includes a permanent, temporary, initial, and modification order.
The term does not include an order relating to child support or other monetary
obligation of an individual." (emphasis added)). Thus, we conclude the family
court should have registered the orders under the UCCJEA and we reverse its
dismissal of Father's request to register and enforce the 2018 Michigan orders.10
10
We decline to address Father's remaining argument in which he asserts the
family court should have registered the orders pursuant to the holding in Johnson
v. Johnson, 196 S.C. 474, 13 S.E.2d 593 (1941). See Futch, 335 S.C. at 613, 518
S.E.2d at 598 (stating an appellate court need not address an appellant's remaining
issues when the disposition of a prior issue is dispositive).
CONCLUSION
For the foregoing reasons, we affirm the family court's dismissal of Father's
counterclaims for attorney's fees in the underlying modification action. We reverse
and remand as to Father's contempt actions and application to enroll and enforce
the 2018 Michigan orders. The family court's order is therefore
AFFRIMED IN PART, REVERSED IN PART, AND REMANDED.
GEATHERS and HEWITT, JJ., concur.