Marshall v. Marshall, 0239

• Decision Date: 14 May 1984
• Docket Number: No. 0239,0239
• Citation: 320 S.E.2d 44,282 S.C. 534
• Court: South Carolina Court of Appeals
• Parties: Carla J. MARSHALL, Respondent, v. Ronald K. MARSHALL, Appellant. . Heard

Page 44

320 S.E.2d 44

282 S.C. 534

Carla J. MARSHALL, Respondent, v. Ronald K. MARSHALL, Appellant.

No. 0239.

Court of Appeals of South Carolina.

Heard May 14, 1984.

Decided Aug. 27, 1984.

Daphne D. Sipes, Tex., and Thomas F. McDow, Rock Hill, for appellant.

Forrest C. Wilkerson, of Roddey, Carpenter & White, Rock Hill, for respondent.

SHAW, Judge:

This is a divorce action in which both parties sought custody of their two minor children. The family court judge granted a divorce to appellant Mr. Marshall and custody to respondent--Mrs. Marshall, and, allowed her to remove the children from South Carolina to Louisiana. We affirm.

The parties met at Louisiana State University. Mrs. Marshall is originally from Louisiana. They married in 1977 and moved to Mr. Marshall's home state of South Carolina. Two children were born of this marriage.

During the marriage, the parties lived on property owned by Mr. Marshall's mother. They lived in a river house for five months and a farm cabin for a little over three years. Neither of these places was in particularly good condition, especially the farm cabin. Mainly due to the poor condition of the farm cabin and Mr. Marshall's unwillingness and/or inability to provide suitable housing for his family, the parties separated on January 1, 1981.

At the separation, Mr. Marshall obtained custody of the children because Mrs. Marshall had no place to care for them. Mr. Marshall and the children moved in with his mother. Later in January, Mr. Marshall sent the children to Texas to live with his sister for ten days to thwart attempts by Mrs. Marshall to obtain custody.

During their separation and prior to the divorce hearing, Mrs. Marshall committed two acts of adultery which she denied at deposition but admitted at trial. At the trial, the judge refused to allow into evidence letters written to Mrs. Marshall from her attorney. Mr. Marshall found one letter in his truck. Mrs. Marshall's attorney had been routinely sending copies of his correspondence with Mrs. Marshall to her father, Mr. Charles L. Johnson, who was the surety for the payment of his daughter's attorney's fees.

After granting the divorce to Mr. Marshall, the trial judge awarded custody of the children to Mrs. Marshall despite her adulterous behavior. He determined that Mrs. Marshall is more stable and independent than Mr. Marshall. He found Mr. Marshall to be not completely emancipated from his parents and family and considered his misconduct in hiding the children in Texas. The tender years doctrine was found to be applicable. Mrs. Marshall was given the right to take the children to Louisiana if she so desired, and Mr. Marshall was granted visitation rights.

Mr. Marshall appeals the trial judge's order claiming error in the refusal to allow into evidence the letter written by Mrs. Marshall's attorney, in the application of the tender years doctrine, and in the award of custody.

In equity actions such as this, the Court of Appeals has jurisdiction to find facts in accordance with its own views of the preponderance of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

Mr. Marshall claims the letters to Mrs. Marshall from her attorney are relevant to the issue of child custody. He also claims since the letters were published to third parties, him and Mr. Johnson, the attorney-client privilege was waived.

Any voluntary disclosure by a client to a third party waives the attorney-client privilege not only as to the specific communication disclosed but also to all communications between the same attorney and the same client on the same subject. Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146 (D.S.C.1975); U.S. v. Jones, 696 F.2d 1069 (4th Cir.1982).

Mr. Marshall came into possession of one letter when Mrs. Marshall returned his truck to have the license tag changed. She obviously left the letter in the truck through oversight and inadvertence and certainly did not intend for Mr. Marshall to see it. Under these circumstances, it can hardly be claimed Mrs. Marshall voluntarily disclosed the contents of this letter to her husband. The trial judge properly refused to admit the letter into evidence.

The copies of correspondence sent by Mrs. Marshall's attorney to her father present a different question. In order to establish the attorney-client privilege, it must be shown that the relationship between the parties was that of attorney and client and that the communications were of a confidential nature. State v. Love, 275 S.C. 55, 271 S.E.2d 110 (1980). The communication involved must relate to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding. SEC v. Kingsley, 510 F.Supp. 561 (D.C.D.C.1981); In Re Grand Jury Proceedings, 517 F.2d 666 (5th Cir.1975). The attorney-client privilege also applies to communications originating from the lawyer rather than from the client. When the attorney communicates to the client, the privilege applies only if communication is based on confidential information provided by the client. Brinton v. Department of State, 636 F.2d 600 (C.A.D.C.1980). The attorney-client privilege, though, does not protect communications with non-clients. State v. Love, supra.

To reach the conclusion the attorney-client privilege was not waived by the disclosure to Mrs. Marshall's father, we must first determine if Mr. Johnson, who as acting as a surety, became a client as a result of guaranteeing payment of his daughter's attorney's fees. A person attains the status of a "client" when that person seeks legal advice by communicating in confidence with an attorney for the purpose of obtaining such advice. In Re Colocotronis Tanker Securities Litigation, 449 F.Supp. 828 (S.D.N.Y.1978). The legal advice or assistance must be sought from the attorney with a view to employing him professionally, whether or not actual employment results. People v. Canfield, 117 Cal.Rptr. 81, 12 Cal.3d 699, 527 P.2d 633 (1974).

Under this definition, Mr. Johnson is clearly not a client of his daughter's attorney. He did not seek legal advice or assistance in this matter, nor has he communicated in confidence with the attorney for the purpose of obtaining advice or with the view of employing him professionally. The fact he has guaranteed payment of the attorney's fees does not give rise to an employment relationship between him and the attorney. Mr. Johnson merely bound himself to pay his daughter's attorney's fees should she default upon that obligation. Philco Finance Corp. v. Mehlman, 245 S.C. 139, 139 S.E.2d 475 (1964).

In order to protect a communication on the ground of attorney-client privilege, it must appear that the attorney was acting, at the time, as a legal advisor. Branden & Nether v. Gowing, 7 Rich. 459 (S.C.1854). Mrs. Marshall's attorney was acting only as an informant of the current state of Mrs. Marshall's lawsuit in writing to Mr. Johnson.

Mr. Marshall claims this evidence was relevant to the issue of child custody. Evidence is, of course, inadmissible unless it is relevant to some issue in the case being tried; relevancy of evidence means the logical relation between the proposed evidence and a fact to be established. Winburn v. Minnesota Mutual Life Ins. Co., 261 S.C. 568, 201 S.E.2d 372 (1973).

We have examined a letter found by Mr. Marshall in his truck. The main thrust of this letter concerns what Mrs Marshall's attorney hoped to get for...