Henderson v. Puckett

Goolsby, Judge:

This is a contempt action resulting from a father’s failure to pay child support for a fourteen-year period. The mother, Constance M. Henderson, based her contempt claim on a 1978 divorce decree that required the father, Bennie Lee Puckett, to support the parties’ daughter. The family court declined to find the father in contempt, holding that a 1979 order temporarily granting custody of the child to the maternal grandparents “superseded” the support obligations imposed on the *172father by the 1978 decree. We disagree with this holding and therefore reverse and remand the issue of contempt.1

The parties were divorced in 1978. The divorce decree, which was dated April 11, 1978, granted the mother custody of the parties’ daughter, who was then about four years old, and ordered the father to pay the mother $40.00 a week in child support through the office of the clerk of court. Neither party appealed this order.

About a year after the divorce, the maternal grandparents filed an action in which they sought custody of the child. The record of this appeal does not contain the pleadings filed in that action.

The family court held a temporary hearing on the custody matter and took extensive testimony. Both the mother and the father were parties to the action and were present at this hearing.

On April 27, 1979, the family court issued a temporary order granting temporary custody of the child to the maternal grandparents. The order also directed the Department of Social Services to investigate the homes of the mother and the grandparents and to make a report to the court. It further granted both the mother and the father visitation with the child. The order mentioned nothing about the father’s child support obligation imposed by the prior divorce decree.

According to the mother, she took physical custody of her daughter soon after the temporary order was issued. The mother further maintained her daughter remained in her care until her daughter reached majority.

The Department of Social Services never conducted the investigation ordered by the family court and the family court never issued a final order in the grandparents’ custody action. In fact, the family court by administrative order struck from the active docket the “support case” against the father on June 23, 1980, subject to its being placed back on the active docket upon proper request. An employee from the clerk’s office testified that such an order is typically issued when the clerk is unable to locate a person required to pay support for service of process in contempt proceedings.

On November 3, 1992, the family court granted a petition *173by the clerk to restore the 1978 “support case” to the active roster on the ground that the mother had furnished a new address for the father. On November 10,1992, the clerk issued a rule against the father requiring him to show cause why he should not be held in contempt for failure to pay child support as ordered by the family court.

As we noted above, the family court refused to find the father in contempt.

A trial court’s determination regarding contempt is subject to reversal where it is based on findings that are without evidentiary support or where there has been an abuse of discretion. Hicks v. Hicks, 280 S.C. 378, 312 S.E. (2d) 598 (Ct. App. 1984). An abuse of discretion can occur where the trial court’s ruling is based on an error of law. 16 S.C. Juris. Appeal and Error § 124 at 31-32 (1992).

Here, there has been an abuse of discretion in that the family court’s determination of the contempt issue rested on an error of law. That error of law is the family court’s holding that the order for temporary custody superseded the prior support order.

As best we can determine from the record before us, the only issue before the family court at the 1979 temporary hearing was the question of who should have custody of the parties’ daughter. The family court made no ruling on the father’s support obligation. Indeed, no such ruling was requested by anyone. Notwithstanding the fact that the same family court judge presided at all proceedings at issue in this appeal, we hold there was no basis for him to conclude that a temporary order addressing only the issue of custody would have any effect on a previously issued final order for child support. See 56 Am. Jur. (2d) Motions, Rules, and Orders § 29 (1971); 60 C.J.S. Motions & Orders § 65g (1969) (an order will not ordinarily be construed as going beyond the motion pursuant to which it was made).

We therefore reverse the family court on the issue of contempt and remand the issue for redetermination.

Reversed and remanded.

Howell, C.J., concurs. Connor, J., dissents in a separate opinion.

We decide this case without oral argument, having determined it would not aid the court in its decision.