Michelle Capps v. Joseph Capps, Jr.

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

Michelle Davis Capps, Appellant,

v.

Joseph Harold Capps, Jr., Respondent.

Appellate Case No. 2019-001409

Appeal From Horry County
Jan B. Bromell Holmes, Family Court Judge

Unpublished Opinion No. 2024-UP-021
Heard November 9, 2023 – Filed January 17, 2024

AFFIRMED AS MODIFIED IN PART, AND
REVERSED IN PART

Julaan Derrick, of Julaan Derrick, Attorney at Law, of
Conway, and Gregory Samuel Forman, of Gregory S.
Forman, PC, of Charleston, for Appellant.

Benjamin Rogers Gooding and Vordman Carlisle
Traywick, III, both of Robinson Gray Stepp & Laffitte,
LLC, of Columbia; and Anita Floyd Lee, of Conway, for
Respondent.
PER CURIAM: Michelle Davis Capps (Wife) appeals the family court's order in
this rule to show cause arising out of her divorce from Joseph Harold Capps, Jr.
(Husband). Wife maintains the family court erred in finding she violated its order
by harassing Husband and alienating him from the parties' two daughters. Wife
further maintains the family court erred in awarding Husband attorney's fees.
Finally, Wife appeals the order of this court remanding the matter for a
reconstruction of the record as to a portion of the transcript from the rule to show
cause hearing that was lost. We affirm as modified in part and reverse in part.

1. As to this court's order remanding the matter to the family court for
reconstruction of the record, we affirm. See Adams v. H.R. Allen, Inc., 397 S.C.
652, 656-57, 726 S.E.2d 9, 12 (Ct. App. 2012) ("A new trial is . . . appropriate if
the appellant establishes that the incomplete nature of the transcript prevents the
appellate court from conducting a meaningful appellate review." (quoting State v.
Ladson, 373 S.C. 320, 325, 644 S.E.2d 271, 274 (Ct. App. 2007))); Ladson, 373 at
327, 644 S.E.2d at 274-75 (granting appellant a new trial when he demonstrated
clear prejudice based on missing portions of the trial transcript). Here, the record
demonstrates the family court had made copious notes regarding pertinent
testimony at the rule to show cause hearing. Wife offered no affidavits at the
reconstruction hearing and only sought to add a few pieces of information about
Husband's cross-examination that do not appear to have been particularly
beneficial to her. Further, the trial exhibits included in the record on appeal aid in
developing a fuller picture of the state of affairs between the parties. Based on all
the circumstances, we are able to conduct a meaningful review, and Wife has not
demonstrated the reconstruction prejudiced her.

2. As to the family court's determination Wife harassed Husband by modifying her
bank account to prohibit his deposit of her alimony payment, we find Husband
failed to prove a violation of the family court's order by clear and convincing
evidence. See Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011)
(explaining the appellate court's standard of review in family court cases is de
novo); Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 705 (Ct. App. 2001)
("[B]efore a court may find a person in contempt, the record must clearly and
specifically reflect the contemptuous conduct."); Tirado v. Tirado, 339 S.C. 649,
654, 530 S.E.2d 128, 131 (Ct. App. 2000) ("A finding of contempt . . . must be
reflected in a record that is 'clear and specific as to the acts or conduct upon which
such finding is based.'" (quoting Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d
915, 918 (1982))); Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 607, 567
S.E.2d 514, 519 (Ct. App. 2002) ("[C]ontempt results from willful disobedience of
a court order; and before a person may be held in contempt, the record must be
clear and specific as to acts or conduct upon which the contempt is based."
(quoting State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct. App.
1994))); id. at 607-08, 567 S.E.2d at 520 ("A willful act is . . . one done voluntarily
and intentionally with the specific intent to do something the law forbids, or with
the specific intent to fail to do something the law requires to be done; that is to say
with bad purpose either to disobey or disregard the law." (quoting Bevilacqua, 316
S.C. at 129, 447 S.E.2d at 217)). The family court's order did not specify the
manner in which alimony payments must be paid or accepted, and the record
demonstrates Husband refused to attempt to render the payment in alternative
forms Wife suggested, including via certified mail. Consequently, the family
court's finding of contempt as to this issue is reversed.

3. As to the family court's determination Wife harassed Husband by failing to
repair the brick columns at the parties' former marital residence as well as by
suggesting she would sue him in magistrate's court, we find Husband failed to
prove a violation of the family court's order by clear and convincing evidence. See
Lewis, 392 S.C. at 386, 709 S.E.2d at 652 (explaining the appellate court's standard
of review in family court cases is de novo); Widman, 348 S.C. at 119, 557 S.E.2d
at 705 ("[B]efore a court may find a person in contempt, the record must clearly
and specifically reflect the contemptuous conduct."); Tirado, 339 S.C. at 654, 530
S.E.2d at 131 ("A finding of contempt . . . must be reflected in a record that is
'clear and specific as to the acts or conduct upon which such finding is based.'"
(quoting Curlee, 277 S.C. at 382, 287 S.E.2d at 918)); Cheap-O's Truck Stop, Inc.,
350 S.C. at 607, 567 S.E.2d at 519 ("[C]ontempt results from willful disobedience
of a court order; and before a person may be held in contempt, the record must be
clear and specific as to acts or conduct upon which the contempt is based."
(quoting Bevilacqua, 316 S.C. at 129, 447 S.E.2d at 217)); id. at 607-08, 567
S.E.2d at 520 ("A willful act is . . . one done voluntarily and intentionally with the
specific intent to do something the law forbids, or with the specific intent to fail to
do something the law requires to be done; that is to say with bad purpose either to
disobey or disregard the law." (quoting Bevilacqua, 316 S.C. at 129, 447 S.E.2d at
217)). While Wife's refusal to resolve the issue on terms that were satisfactory to
Husband may have frustrated him, it was Wife's right to determine the manner in
which she would repair the column that Husband admitted he damaged.
Additionally, she was entitled to pursue a legal remedy through the judicial system
if she so chose. We conclude this conduct does not rise to the level of harassment
as contemplated by the family court's order and therefore reverse this finding.

4. Regarding the family court's determination Wife denigrated Husband to the
parties' children, we find Husband established a violation of the family court's
order by clear and convincing evidence. See Lewis, 392 S.C. at 392, 709 S.E.2d at
655 ("[W]hile retaining the authority to make our own findings of fact, we
recognize the superior position of the family court in making credibility
determinations." (footnote omitted)); Widman, 348 S.C. at 119, 557 S.E.2d at 705
("[B]efore a court may find a person in contempt, the record must clearly and
specifically reflect the contemptuous conduct."); Tirado, 339 S.C. at 654, 530
S.E.2d at 131 ("A finding of contempt . . . must be reflected in a record that is
'clear and specific as to the acts or conduct upon which such finding is based.'"
(quoting Curlee, 277 S.C. at 382, 287 S.E.2d at 918)); Cheap-O's Truck Stop, Inc.,
350 S.C. at 607, 567 S.E.2d at 519 ("[C]ontempt results from willful disobedience
of a court order; and before a person may be held in contempt, the record must be
clear and specific as to acts or conduct upon which the contempt is based."
(quoting Bevilacqua, 316 S.C. at 129, 447 S.E.2d at 217)); id. at 607-08, 567
S.E.2d at 520 ("A willful act is . . . one done voluntarily and intentionally with the
specific intent to do something the law forbids, or with the specific intent to fail to
do something the law requires to be done; that is to say with bad purpose either to
disobey or disregard the law." (quoting Bevilacqua, 316 S.C. at 129, 447 S.E.2d at
217)). We find the testimony, texts, and audio recording of Husband and Wife's
confrontation regarding one daughter's recording Husband provides clear and
convincing evidence Wife discussed inappropriate topics in front of the parties'
daughters and encouraged the daughters' lack of respect toward their father.
Furthermore, the family court observed Wife's testimony at this rule to show cause
hearing, as well as a prior rule to show cause hearing, and found Wife to not be
credible. Consequently, we affirm the family court as to its finding of contempt on
this point.

5. As to attorney's fees, based on our disposition of the prior matters, we reduce
the amount of attorney's fees awarded to Husband by two-thirds to $13,333.33.1
See Myers v. Myers, 391 S.C. 308, 322, 705 S.E.2d 86, 94 (Ct. App. 2011)
(adjusting the wife's entitlement to attorney's fees based appellate court's decisions
that diminished her beneficial results); Bojilov v. Bojilov, 425 S.C. 161, 191, 819
S.E.2d 791, 807 (Ct. App. 2018) ("The appellate court may reverse an attorney's
fees award when the beneficial results achieved by trial counsel are reversed on
appeal."). We therefore affirm the family court's award of attorney's fees as
modified.

AFFIRMED AS MODIFIED IN PART AND REVERSED IN PART.

1
The $1,500 fine payable to the family court remains in place.
KONDUROS, GEATHERS, and VINSON, JJ., concur.