Judges – Criminal Contempt Order – Appeals – Notice to  State – Recusal Hearing – Attorneys

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When she appealed a family court order holding her in criminal contempt, the appellant-attorney served notice on the family court judge and the county clerk of court. The Attorney General’s office informed this court that it would be appearing pursuant to S.C. Code Ann. § 1-4-40 (the Attorney General “shall appear for the State in the Supreme Court and the court of appeals in the trial and argument of all causes, criminal and civil, in which the State is a party or interested . . . . “). We decline the state’s suggestion to find a jurisdictional defect in this case.

We reverse the family court’s criminal contempt order.

We agree with the state that the process for appealing an order of contempt should be better delineated, and it would be helpful to have clarification identifying who “the respondent” or “adverse party” is for purposes of the Appellate Court Rules in a case such as this one. However, it is not this court’s place to declare such a rule—particularly in light of the odd manner in which this hearing was conducted and the family court’s problematic behavior. This issue would be better addressed through a statutory definition or by proposed amendment of our court rules followed by the necessary legislative review.

In the custody case below, Mother moved to recuse the chief family court judge because of his relationship to Father and Father’s counsel. Mother and her counsel, appellant Martell, both filed affidavits in support of the recusal motion.

At the tense and combative hearing on the recusal motion, the family court judge engaged in hostile questioning, vehemently and intemperately denied all allegations set forth in the affidavits, questioned Mother in a way she described as “bullying,” and – after demanding that Martell take the stand to discuss the allegations raised in her own affidavit – ignored Martell’s request for an recess to allow her to contact counsel or otherwise assess whether she should testify, instead demanding an immediate “yes or no.” The judge held Martell in criminal contempt when it should instead have given her the opportunity to seek counsel and consider whether she was able to properly obey the court’s demands.

Reversed.

In re Martel (Lawyers Weekly No. 012-027-23, 6 pp.) (Per Curiam) Appealed from Beaufort County Family Court (Peter Fuge, J.) Dayne Phillips for appellant; Alan McCrory Wilson and Mark Reynolds Farthing for the state. South Carolina Court of Appeals (unpublished)