Badeaux v. Davis

Decision Date20 September 1999
Docket NumberNo. 3047.,3047.
Citation522 S.E.2d 835,337 S.C. 195
PartiesBrenda BADEAUX, Respondent, v. Billy D. DAVIS, Appellant.
CourtSouth Carolina Court of Appeals

David D. Armstrong and Cameron G. Boggs, both of Armstrong Law Firm, of Greenville, for Appellant.

Deidre Rihtarchik, of the SC Department of Social Services, Division of Child Support Enforcement, of Greenville, for Respondent.


Billy D. Davis (Father) appeals from a civil contempt order finding him in arrears for failing to pay child support to Brenda Badeaux (Mother) pursuant to a foreign child support order registered in South Carolina. The judge found arrears of $19,356.16, calculated to April 23, 1998, but terminated the ongoing support as of the day the youngest child reached eighteen, January 15, 1998. On that date, the arrears totaled $17,914.16. We affirm in part, reverse in part, and remand.1


Mother and Father were married in April of 1976. Theyhad two children, Christopher Ervin Davis, born March 2, 1975, and Isom Dean Davis, born January 15, 1980. Mother and Father subsequently divorced in Mississippi on December 17, 1981. Pursuant to the divorce decree, Mother was awarded custody of the two children, subject to reasonable visitation. The divorce decree ordered:

IT IS, FURTHER, ORDERED, ADJUDGED, AND DCREED that the Defendant [Father] has been paying until the date of this hearing, and shall continue to pay the sum of $100.00 per week unto the Complainant [Mother], as child support for the minor children of the parties, said sum to be paid through the Offices of the Chancery Clerk of Forrest County, Mississippi, by cash, check, or money order.

After the divorce, Father moved to South Carolina. Mother and the children remained in Mississippi.2 The South Carolina Department of Social Services (DSS), at the request of the State of Mississippi, filed a Notice of Filing and Registration of Foreign Support Order. The registration was challenged by Father. The registration of the order was confirmed on November 2, 1995, but the issue of Father's child support arrears was held in abeyance until DSS could contact Mississippi, the initiating state. DSS was to determine the correct amount of the arrears.

Father was ordered to continue paying support as required by the divorce decree. However, he continued falling behind on his payments. According to the Spartanburg County records, the Mississippi Court set arrears at $18,508.89 as of the end of November 1996. On March 24, 1998, a Rule to Show Cause for Father's failure to pay child support was issued by the Family Court for the Seventh Judicial Circuit. The Clerk of Court averred that Father: "has failed to make support payments as required by the Order of the Family Court dated 1/09/97 and that the amount due as of 3/24/98 is $18,944.16."

On April 24, 1998, Father owed $19,356.16. At the hearing, Father admitted he stopped paying support when the younger child turned 18. When asked about his children, Father said: "They're both grown." The testimony continued:

The Court: One of their dates of birth is 1980; which would put him at?
The Defendant: Eighteen years old.
The Court: Where is the child?
The Defendant: In—he's in Mississippi.
The Court: Where is the mother?
The Defendant: Mississippi.
The Court: We got some information from somebody saying that your obligation was until age 21.
The Defendant: I don't know anything about that. The boy quit school when he was 17; turned 18 on January fifteenth. He's got a job working. That's when I stopped paying after he was 18.

The Court and DSS entered into a discussion as to the requirements of Father's obligation. Judge Foster ruled at the hearing:

Ms. Rihtarchik is going to check into getting an adjustment because the other child was 18 five years ago. You may be entitled to it, but it's not being set today. We are also going to check on the age from Mississippi law, but, until that, I will ask you to pay Fifty Dollars a week, which is Two Hundred Dollars a month until we get this paid off. That starts May the 1st. She will be back in touch with you, and she will also set up a hearing about the other arrearages.

In his written order, the judge found the arrears owed were $19,356.16. However, he decided to terminate support as of the date the younger child turned 18, and set arrears on that date at $17,914.16. He ordered Father to pay $50.00 (plus 3% court costs) per week commencing May 1, 1998.

Father appeals the order of the Family Court arguing the judge: (1) failed to make findings of fact sufficient to support the order; (2) erred by listing two separate amounts for arrears on the order; and (3) erred in signing an order contrary to his holding at the hearing. DSS responded denying error, and also asserting the Family Court, operating as the responding tribunal, was without jurisdiction to modify the Mississippi order under the Uniform Interstate Family Support Act (UIFSA), S.C.Code Ann. § 20-7-960 et seq. (Supp. 1998).

I. Did the judge err in calculating arrears without recording his findings of fact?
II. Did the judge err in listing two separate amounts for arrears in his order?
III. Did the judge err in signing an order that was contrary to some of his holdings at the Rule hearing.
IV. Does a South Carolina Family Court have subject matter jurisdiction under UIFSA to modify a Mississippi order for support registered in South Carolina?3

In appeals from the'family court, the Court of Appeals has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992); Charest v. Charest, 329 S.C. 511, 495 S.E.2d 784 (Ct.App.1997); Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct.App.1996). This broad scope of review does not, however, require this Court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981).

I. Rule 26(a), SCRFC

Father raises several issues for consideration regarding the validity of the order issued by the Family Court. His first contention is the order does not comply with Rule 26(a), SCFCR, in failing to set forth adequate findings of fact to support the Court's determination of arrears. We disagree.

Rule 26(a), SCRFC provides:

An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision.

Father argues that under Atkinson v. Atkinson, 279 S.C. 454, 309 S.E.2d 14 (Ct.App.1983) and Aycock v. Aycock, 284 S.C. 193, 324 S.E.2d 650 (Ct.App.1984), this Court should remand the Family Court order for a de novo hearing. Generally, where an order of the Family Court fails to comply with Rule 26(a), the appellate court should reverse and remand so the Family Court may make specific findings of fact. Blumberg v. Nealco, Inc., 310 S.C. 492, 427 S.E.2d 659 (1993). "However, when an order from the family court is issued in violation of Rule 26(a), SCRFC, the appellate court `may remand the matter to the trial court or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.'" Griffith v. Griffith, 332 S.C. 630, 647, 506 S.E.2d 526, 535 (Ct.App.1998) (citing Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)). See also, Bull v. Smith, 299 S.C. 123, 382 S.E.2d 905 (1989)

(Appellate Court may make an independent review of the record to make findings of fact where the Family Court's order fails to make such findings in compliance with Family Court Rule 26(a)).

In the case at hand, the record is sufficient for this Court to make necessary findings of fact. While the order of the Family Court does not articulate specific calculations or references to where the amounts listed were derived, the record contains the Spartanburg County Family Court official pay history for Father's support. A review of the record shows Father was in arrears $19,356.16 as of the date of the hearing, as listed in the order by the Family Court.

II. Multiple Arrearage Listed in Family Court Order

Father professes it was error for the Family Court to list two different amounts of arrears in its order. He challenges the Family Court was without any evidence to set the two amounts and failed to consider all the evidence in making its determinations. We disagree.

The Family Court listed at the top of its order the amount of arrears owed by Father as of the date of the hearing, $19,356.16. The second amount is listed on the bottom of the form after the judge noted:

Children emancipated 1-15-98 (if 18 is Miss. law). Dss to investigate Miss. law—also some adjustment needs to be made because 1 child was 18 on 3-2-93.

He listed arrears of $17,914.16, which was determined by the judge as the amount owed as of the younger child's eighteenth birthday. The Family Court judge was attempting to ease the burden on Father by terminating his support obligation according to South Carolina law.4 The judge observed the modification will be allowed only if allowable under Mississippi law. Father's contention of error is without merit.

III. Inconsistent Oral and Written Holdings by Family Court

Father next maintains the Family Court erred in improperly signing an order inconsistent with the Court's decisions announced at the hearing. Father asseverates the family court erred in issuing a written order setting the amount of his arrearage despite the court's comments from the bench that an additional hearing may be necessary to determine if, and if so when, the parties' children became emancipated pursuant to Mississippi law. We disagree.

It is well settled that a judge is not bound by a prior oral ruling and may issue a written order which is in conflict with the oral ruling. First Union Nat. Bank of South Carolina v....

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