Bowers v. Bowers
Citation | 304 S.C. 65,403 S.E.2d 127 |
Decision Date | 11 February 1991 |
Docket Number | No. 1620,1620 |
Court | South Carolina Court of Appeals |
Parties | Kimberly Word BOWERS, Respondent, v. John Perry BOWERS, Jr., Appellant. . Heard |
James H. Price, III, Greenville, for appellant.
Richard T. Townsend, Laurens, for respondent.
John Perry Bowers, Jr., appeals a family court ruling in favor of Kimberly Word Bowers that denied his motion to set aside that portion of an earlier separate maintenance and support order that found him to be the father of the child born during the parties' marriage. We affirm.
This action began when Mrs. Bowers sued Mr. Bowers for a divorce based upon one year's continuous separation. By way of a counterclaim, Mr. Bowers alleged that he "has been informed by a third party that the [p]laintiff was having an adulterous affair at the time of conception of the child [born during the marriage] and upon confronting her with this matter [Mrs. Bowers] has not denied it." His counterclaim requests an order for HLA blood testing.
Mrs. Bowers replied to the counterclaim by denying its allegations and raising res judicata, accord and satisfaction, and waiver as affirmative defenses. She based the res judicata defense upon a previous separate maintenance and support action between these parties that concluded with an order that, among other things, found the child had been born of the marriage and required Mr. Bowers to pay support for the child.
Mr. Bowers then moved, apparently pursuant to Rule 60(b)(3), SCRCP, to set aside that portion of the court's separate maintenance and support order that held he was the child's father. His motion alleges that the order "was based upon the fraudulent misrepresentation and misconduct of [Mrs. Bowers]."
At the beginning of the family court's hearing on Mr. Bowers' motion, the court asked Mr. Bowers' attorney, "All right, you got an [a]ffidavit or anything showing me what he alleges--in what way he alleges he was defrauded or deceived?"
Mr. Bowers' attorney responded, "I do not have an [a]ffidavit, your Honor." He then restated the allegations contained in Mr. Bowers' counterclaim and read Rule 60(b), SCRCP, to the court.
In its final order, the family court specifically found Mr. Bowers made no showing of a meritorious defense to the claim of paternity. See Mitchell Supply Co., Inc. v. Gaffney, 297 S.C. 160, 375 S.E.2d 321 (Ct.App.1988) ( ); Square Construction Company v. Washington Metropolitan Area Transit Authority, 657 F.2d 68, 71 (4th Cir.1981) ( ).
Although the family court based its order on several grounds, we affirm, without reaching the other grounds, the family court's holding that Mr. Bowers failed to demonstrate a meritorious defense to the claim of paternity. See Anderson v. West, 270 S.C. 184, 241 S.E.2d 551 (1978) ( ); Pruitte v. Burns, 212 S.C. 325, 47 S.E.2d 785 (1948) ( ).
The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle him to relief. See 49 C.J.S. Judgments § 297, at 545 (1947) (); 46 Am.Jur.2d Judgments § 780, at 940 (1969) (); cf. 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.24, at 60-217 (1990) () . Such evidence is usually provided through affidavits. See 49 C.J.S. Judgments § 295, at 544 (1947) (); cf. Arnold v. Arnold, 285 S.C. 296, 328 S.E.2d 924 (Ct.App.19...
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