Imagine you and your ex-spouse have been divorced for a few years now. Your ex was awarded custody in the divorce, but the final custody agreement granted you liberal visitation time. However, as soon as you entered your custody agreement, your ex started telling your kids they did not have to exercise visitation with you if they did not want to. At first, you did not want to make a big deal out of this. You know your kids had a tough time handling the divorce and you do not want to force them to have visitation time. However, fast forward a few years and you have barely seen your children in months. You decide enough is enough and you hire a South Carolina family law attorney to file a petition to hold your ex-spouse in contempt of court for violation of your custody agreement. Will you be successful? In the July 2016 decision of Noojin v. Noojin, the South Carolina Court of Appeals said “yes.”
The Key Facts of Noojin
In Noojin, the mother was granted custody with the father getting visitation time pursuant to a custody agreement. However, the father did not actually get to exercise his visitation after the parties divorced in 2011 because both his ex-wife and their two children were resistant to visitation. Consequently, for three years, the father only had limited visitation. After repeatedly being denied visitation, the father filed a complaint for contempt against wife, outlining all of the visitation he missed from 2011 through 2013.
The mother’s primary “defense” as to why she should not be held in contempt was because she did not be punished because she did not want to force the children to go have visits with their father. She also testified that she was unaware that the father had ever sought to exercise his visitation. However, the father presented multiple e-mails that proved the mother knew she was intentionally refusing visitation.
After holding a three-day contempt hearing on the father’s complaint, the trial court held the mother in contempt for failure to comply with the custody schedule and ordered her to pay the father $41,375.84 in attorney’s fees. The mother appealed the trial court’s decision.
What is Contempt?
The court first outlined the definition of contempt and the requirements for finding a party in contempt. Quoting Tirado v. Tirado, the court explained contempt is a “consequence of the willful disobedience of a court order.” The court went on to elaborate that the willful actions constituting contempt must be done “voluntarily” and “intentionally.” To establish contempt, the court found that a moving party “must show the order’s existence and facts establishing the other party did not comply with the order” (quoting Abate v. Abate).
The Court’s Analysis in Noojin
The court first noted the deference given to the lower court’s determinations as to credibility, demeanor of witnesses, and weight to give to witness testimony. Specifically, the court focused on a couple of factors in reaching its holding. First, the court noted that the mother had continuously tried to alienate her children from their father and failed to facilitate visitation with him. Specifically, the mother allowed the children to disinvite their father from school events and to block their father from their cell phones without any consequences. The father introduced and admitted evidence of e-mails that indicated his calls to the children were unanswered and unreturned and the mother never informed him of the children’s school events. The court found the mother’s alienating behavior was against South Carolina public policy. It should be noted that one of the factors in determining custody is whether one party engages in alienating behavior.
Second, the court did not note any physical or emotional abuse by the father or any other factors that would point to some reason why it would be of concern to allow father to exercise visitation. Finally, the court said that the father’s initial flexibility to not pursue visitation with his children did not change the fact that he had a court-ordered right to visitation.
The Court’s Holding in Noojin and its Implications
The South Carolina Court of Appeals ultimately affirmed the trial court, finding that under these facts, the mother should be held in contempt for not complying with the custody order. This holding indicates that a child’s reluctance to exercise visitation with a parent is not sufficient reason to withhold visitation, particularly, if the withholding spouse engages in alienating behavior.
However, this does not necessarily mean that a court would always find a party in contempt under these circumstances. Specifically, the Noojin court noted that its holding does not necessarily apply in every situation. The court engaged in an extensive factual analysis in coming to its holding. This analysis suggests that the court may have come to a different conclusion if the facts pointed to factors such as fear of abuse by the non-custodial parent.
One more important thing to note about the Noojin holding is the appellate court affirming the award of $41,375.84 in attorney’s fees. Specifically, South Carolina courts have followed the theory of “compensatory contempt,” which grants fees to a party “who is injured by a contemnor’s action to restore the party to his original position.” Therefore, if you do consider withholding visitation from your ex-spouse, you may face the consequences of having to later pay his attorney’s fees if, as the Noojin court did, that the “injured party” is entitled to fees.
Contact an Experienced South Carolina Custody Attorney Today!
The Noojin court holding opens the door to potentially finding a parent in contempt for withholding visitation, even if that parent does not want to force their child to go to parenting time. To determine whether you could hold your spouse in contempt for withholding your visitation, you should contact the team at the Elliott Frazier Law Firm, LLC. Our skilled South Carolina family law attorneys can help you talk through the possibilities for dividing parenting time during the holidays. Contact us today for a case evaluation!
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.