Panas v. Panas ( 2010 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Catherine Panas, Respondent,

v.

Richard Panas and Gallina Fielder, Defendants,

of whom Richard Panas is the Appellant.

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Appeal From York County
Henry T. Woods, Family Court Judge

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Unpublished Opinion No. 2010-UP-534
Submitted December 8, 2010 – Filed December 14, 2010

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DISMISSED

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Brian Scott McCoy, of Rock Hill, for Appellant.

Lucy London McDow and Tony Miller Jones, both of Rock Hill, for Respondent.

FEW, C.J.: Richard Panas, while currently in contempt for failing to comply with a divorce decree and subsequent consent order, appeals the divorce decree.  We dismiss the appeal under the fugitive disentitlement doctrine. [1]

I.  Facts

Catherine Evrard and Richard Panas married on June 18, 1994.   After the birth of their first child in May 1995, Panas told Evrard he used crack cocaine.  Evrard testified their marriage began to change when Panas opened a list broker business and a printing company and he spent less time with his family.  As a list broker, Panas purchased lists of names and addresses.  He then sent to the people on the lists a sweepstake offering them a chance to win if they first responded by sending money.  He kept the money, generated his own lists of the responding people, and sold those lists.  Panas owned six companies, at least three of which participated in the list broker business. 

Panas physically abused Evrard and had an affair with a woman named Gallina Fielder.[2] In addition, he was convicted of drug possession and criminal domestic violence. 

Evrard filed for divorce on January 27, 2003.  A temporary consent order filed on July 21, 2003 granted Evrard temporary custody of the children with visitation rights to Panas.  The order also granted Evrard temporary possession of the marital home and required Panas to pay $4,000 in monthly support and tuition for the children's private education. 

Evrard filed four motions to compel discovery responses and a complete financial declaration from Panas between January 28, 2004 and January 9, 2006.  Due to Panas's repeated failure to provide complete financial information to Evrard, the court twice refused to allow his CPA to testify about certain topics.  First, on June 15, 2006, the court denied Panas's motion for modification of temporary child support, based on an alleged decrease in his income, after the judge refused to allow testimony from his CPA concerning the alleged income reduction.  Second, at the divorce hearing on September 18, 2007, the trial judge again refused to let Panas's CPA testify as to valuations of some of his businesses "due to the failure on the part of the Husband to produce that documentation."  Additionally, between 2005 and the present Panas has retained three different attorneys and, at times, appeared pro se. 

The divorce decree was issued on July 2, 2008.  It awarded to Evrard custody, alimony in the amount of $7,500 per month, child support in the amount of $4,000 per month, the marital home, and $2,062,872 to be paid from the remainder of six marital properties.  The decree further stated if Panas did not pay, Evrard

shall be authorized to sell whatever property of the Husband that can be located within this State or any other State upon proper application to satisfy this judgment.  The Clerk of Court shall be authorized to execute whatever deeds and/or documentation necessary to convey title of the Husband's properties to the Wife for purposes of sale.

Panas appealed, alleging error in the family court's award of alimony and child support, and the valuation of his businesses and marital property. 

By September 2008 Panas had not conveyed the marital home or paid the amounts due to Evrard.[3] Evrard made a motion for conveyance of the marital home and other properties to satisfy the arrearages.  The parties resolved the dispute in an agreement which was approved by consent order on November 3, 2008.  The agreement required Panas to sell four properties and apply the proceeds to his delinquent child support, alimony, attorney and guardian ad litem fees, and equitable apportionment.  It also required Panas to transfer the marital home "promptly." 

On June 3, 2009, Evrard filed a rule to show cause why Panas had not paid child support or alimony since November 3, 2008, transferred the marital home to Evrard, or sold the four properties as required by the consent order.  On August 25, 2009, the family court issued an order finding Panas in contempt of court based on his noncompliance with both the divorce decree and consent order.[4] As punishment for his contempt, the family court ordered Panas to spend ninety days in the York County Detention or Public Works Center and could purge his contempt by paying the $69,000 in arrearages of child support and alimony by September 3, 2009.  Further, the order specified:

[T]he parties may, by mutual written agreement, extend the time for the defendant to purge himself of contempt for an additional thirty days, if the defendant has identified to the plaintiff property of sufficient value and liquidity, satisfactory to the plaintiff, that defendant proposes to promptly transfer to the plaintiff or liquidate, and then promptly transfers or liquidates, in order to satisfy the defendant's support arrearage.  Such property does not include real or personal property which the plaintiff is already entitled to receive under the Decree or the Consent Order or as a result of the defendant's failure to comply with either order.

The order also required the clerk of court to transfer the marital home to Evrard. 

On August 13, 2009, Evrard filed a "Motion to Dismiss or For Remand" with this court based on the fugitive disentitlement doctrine.  In his response, Panas stated he intended to purge himself.  This court denied the motion on September 16, 2009.  Panas failed to purge himself and a bench warrant for his arrest was issued on December 2, 2009. 

To date, Panas has not complied with the contempt order.  The bench warrant is active and remains unserved because Panas's whereabouts are unknown to the court.  However, Panas "has offered to sign over his interest in three rental properties (referenced in the Divorce Decree) to the Respondent.  . . . [and] contends that the equity in said properties exceeds the amount required under the contempt order, and should be considered compliance." 

II.  Fugitive Disentitlement Doctrine

The fugitive disentitlement doctrine "is a discretionary right of an appellate court to 'dismiss an appeal by a person who stands in contempt of court in the proceeding in which he seeks to take an appeal.'"  Posner v. Posner, 383 S.C. 26, 33, 677 S.E.2d 616, 620 (Ct. App. 2009) (quoting Scelba v. Scelba, 342 S.C. 223, 228, 535 S.E.2d 668, 671 (Ct. App. 2000)).  It is a discretionary right and inherent power of the court which "has long been recognized by the United States Supreme Court."  Scelba, 342 S.C. at 228, 535 S.E.2d at 671 (citing Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993)).  For an appellate court to invoke the doctrine as the basis for dismissing an appeal, "two prerequisites must be met: (1) the appellant must be a fugitive; and (2) there must be a connection between the fugitive status and the appellate process the appellant seeks to utilize."  Id. at 229, 535 S.E.2d at 671.  The policy behind and rationales for the doctrine are: "'[1] the difficulty of enforcement against one not willing to subject himself to the court's authority, [2] the inequity of allowing that 'fugitive' to use the resources of the courts only if the outcome is an aid to him, [3] the need to avoid prejudice to the nonfugitive party, and [4] the discouragement of flights from justice.'"  Id. at 228-29, 535 S.E.2d at 671 (quoting United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir. 1997)).

This court has dismissed two cases with published opinions based on the fugitive disentitlement doctrine which provide clarification of its two requirements.

First, in Scelba, this court dismissed an appeal based on the doctrine where the appellant wife failed to appear on two occasions.  Id. at 229, 535 S.E.2d at 671-72. First, she did not appear at a rule to show cause hearing after she refused to let her husband come to the family home to take a property inventory.  Id. at 226-27, 535 S.E.2d at 670.  Second, after the issuance of a bench warrant due to the first failure to appear, the wife again did not appear at a deposition.  Id. at 227, 535 S.E.2d at 670.  Then, because she was afraid she would be arrested, the wife did not appear at the final hearing, but then appealed the ground for the divorce, allocation of marital property, valuation of pension plans, and award of attorney fees.  Id. at 227, 535 S.E.2d at 670-71.  This court found that the first requirement was met because "[w]ithout question, the wife, by her own actions, has become a fugitive in this litigation" and "the matters giving rise to the bench warrant have not been adjudicated because of the wife's refusal to submit to the family court's jurisdiction."  Id. at 229, 535 S.E.2d at 671-72.  The second requirement was met because:

The Husband's attempts to secure the Wife's compliance with the Court's Temporary Order and be able to inventory and appraise all furnishings were frustrated by the Wife. . . .  To effectuate the property division, the family court granted the husband a judgment against the wife . . . and ordered the wife to transfer certain assets to the husband . . . .  Nevertheless, as long as the wife refuses to submit to the jurisdiction of the family court and to otherwise disclose her whereabouts, the husband has no practical means of enforcing the final divorce decree, whether that enforcement involves compelling the transfer of certain assets or executing a judgment.

Id. at 230-31, 535 S.E.2d at 672.  Because both requirements for application of the doctrine were satisfied, the appeal was dismissed.

This court again applied the doctrine to a divorce case in Posner, where the husband was found to be in contempt for failing to comply with certain terms of a marital agreement and a bench warrant was issued for his arrest after he failed to appear pursuant to a rule to show cause.  383 S.C. at 29-30, 677 S.E.2d at 618.  The marital agreement provided that the wife receive a share of the husband's tax deferred savings plan.  Id. at 29, 677 S.E.2d at 618. Three years later, the husband made a motion requesting the family court to reduce the amount given to the wife, alleging she was overpaid.  Id. at 30-31, 677 S.E.2d at 619.  The family court denied the motion and found that the wife received a proper distribution.  Id. at 31, 677 S.E.2d at 619. When the husband appealed, the wife argued it should be dismissed based on the fugitive disentitlement doctrine.  Id. at 29, 677 S.E.2d at 618. 

After determining that the husband failed to purge himself of contempt, this court applied the doctrine.  Id. at 33, 677 S.E.2d at 620.  The first requirement was met because "[t]he family court found Husband in contempt for failing to comply with a number of provisions in the Agreement.  Moreover, since the issuance of the bench warrant by the family court, Husband has yet to appear before that court."  Id. at 34, 677 S.E.2d at 621.  The second requirement for application of the doctrine was also met because

Husband's fugitive status derives from not only his failure to appear before the family court pursuant to the Rule to Show Cause resulting in a bench warrant being issued for his arrest, but also his failure to comply with the provisions of the Agreement itself. On appeal, Husband asks this Court to interpret the Agreement in a manner more favorable to him than the family court's interpretation. Husband has failed to abide by the court order which approves the Agreement, absented himself from the jurisdiction, and evaded the processes of the court. In short, his conduct frustrates the administration of justice.

Id. at 35, 677 S.E.2d at 621.  Accordingly, the appeal was dismissed.  Id. 

In this case, both requirements of the doctrine are also met.  First, Panas is a fugitive. He has not been seen in the family court since the final divorce hearing in September 2007.  Panas still has neither complied with the divorce decree or consent order nor purged himself of his contempt.  Furthermore, due to his absence, the bench warrant issued for his arrest remains unserved.  As in Scelba and Posner, the appellant remains absent from the litigation and the matters giving rise to the bench warrant have not been resolved because of Panas's refusal to comply with court orders.

Second, there is a connection between the fugitive status and the appellate process Panas seeks to utilize.  The contempt order arises from Panas's refusal to pay alimony and child support and to comply with the consent order which required him to sell rental properties and transfer the proceeds to Evrard.  As in Scelba, as long as Panas refuses to comply with the court's order and disclose his whereabouts, Evrard has no practical means of enforcing either the divorce decree or the consent order. 

Originally, the divorce decree allowed Panas to keep the rental properties, but authorized the clerk of court to transfer them to Evrard if Panas did not timely pay her the amounts due.  The consent order, which Panas agreed to, then required him to sell four of the properties and transfer the proceeds to Evrard.  Finally, the contempt order required Panas to pay all arrearages, but allowed him to identify property to satisfy them if Evrard agreed.  If Panas chose to identify property as satisfaction, it could not be property Evrard was already entitled to receive under either the divorce decree or consent order, and he was required to "promptly transfer" such property to her.  Panas argues this court should not apply the doctrine because he "has offered to sign over his interest in three rental properties . . . the equity in said properties exceeds the amount required under the contempt order, and should be considered compliance."  We disagree.  Because any property Panas chose to identify to purge himself of contempt could not be property to which Evrard was already entitled, his offer of the rental properties is not compliance.  Furthermore, to seek the aid of this court by appeal, Panas must actually purge himself of contempt, rather than merely offering compliance.

DISMISSED.

SHORT and WILLIAMS, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Panas transferred marital property to Fielder during the pendency of the divorce.  She was added as a party, but failed to answer or appear.

[3] These matters were not stayed by Panas's appeal to this court.  Rule 241(b), SCACR.

[4] Panas did not appeal the contempt order.