Brown v. Malloy

• Decision Date: 30 April 2001
• Docket Number: No. 3339.,3339.
• Citation: 546 S.E.2d 195,345 S.C. 113
• Court: South Carolina Court of Appeals
• Parties: William T. BROWN, III, Appellant, v. Amy MALLOY, James F. Thompson, d/b/a Thompson & Sinclair, and John and Jane Doe, of whom Amy Malloy and Jane and John Doe are, Respondents.

345 S.C. 113

546 S.E.2d 195

William T. BROWN, III, Appellant, v. Amy MALLOY, James F. Thompson, d/b/a Thompson & Sinclair, and John and Jane Doe, of whom Amy Malloy and Jane and John Doe are, Respondents.

No. 3339.

Court of Appeals of South Carolina.

Heard February 6, 2001.

Decided April 30, 2001.

Dianne S. Riley, of Greenville, for appellant.

Edgar H. Long, of Long & Smith, of Anderson; J. Franklin McClain, of Glenn, Haigler, Maddox & McClain, of Anderson; and Susan B. Lipscomb, of Nexsen, Pruet, Jacobs & Pollard, of Columbia, all for respondents.

HOWARD, Judge:

William T. Brown III brought this suit against Amy Malloy, James F. Thompson, Thompson & Sinclair, and John and Jane Doe (collectively, "Respondents") to set aside the order terminating his parental rights and granting the adoption of his daughter by John and Jane Doe ("the adoptive parents"). Brown asserts, among other things, that he was not provided adequate notice of the proceedings through publication of a "John Doe" Notice of Adoption. The family court determined the Order of Publication in the adoption proceeding was not procured by fraud or collusion, and the affidavit in support of the order was not defective on its face. Based upon this conclusion, the court upheld the adoption. Brown appeals, asserting the family court erred in its factual determinations and in limiting the scope of the hearing to the issue of whether the Order of Publication was procured by fraud or collusion, or was based upon a facially defective affidavit. We affirm in part, reverse in part, and remand for further proceedings.

FACTS/PROCEDURAL HISTORY

Brown is a resident of Orange County, California. In 1997, Brown and Malloy were employed at a chain restaurant in Los Angeles County, California. They began an intimate relationship in June 1997 and for a short time lived together in Brown's residence. During her stay, Malloy became pregnant with Brown's child and advised him of this fact. She then left Brown's residence and resumed living with her fiance in Los Angeles County in August or September 1997. Malloy returned to her parents' South Carolina residence in January 1998 and began working at another restaurant in the same chain.

A daughter was born to Malloy on March 11, 1998. Two days later, Malloy relinquished her parental rights and consented to the adoption of the child. She signed an affidavit in which she refused to name the father but stated that he resided in Los Angeles County, California. Malloy averred that the biological father had neither openly held himself out to be the father of the child nor offered support for the child during the six months preceding her birth.

Brown claims he was unable to locate Malloy until June 1998, at which time she led him to believe their daughter lived with her. She sent him pictures of the child and requested $1,000 for child support. Brown sent Malloy $400.

In the meantime, unbeknownst to Brown, the adoptive parents had filed adoption proceedings on April 13, 1998. By order dated April 17, 1998, the family court directed that service on the father be accomplished by publication of the notice of adoption proceedings in a newspaper of general circulation in Los Angeles County. The notice referred to all parties only by fictitious names. Brown did not appear at the hearing to defend. On August 13, 1998, the family court terminated the parental rights of the biological parents and approved the adoption of the child.

Brown learned of the adoption in January 1999 and filed this action to set the adoption aside, claiming that he had not been properly served. The family court ultimately held a hearing on October 19, 1999, but limited its inquiry to the validity of the Order of Publication. The court allowed limited testimony from both Malloy and Brown to determine if the Order of Publication was procured by fraud, or whether the affidavit in support of the order was facially defective. By order dated January 11, 2000, the family court ruled the Order of Publication was neither procured by fraud nor based upon a facially defective affidavit. It further ruled the resulting notice was adequate to satisfy statutory requirements. See S.C.Code Ann. § 20-7-1734 (Supp.2000).

On April 4, 2000, the court denied Brown's motion to alter or amend the January 11, 2000 order. This appeal followed.

ISSUES PRESENTED

I. Did the family court err in finding that the Order of Publication was not procured through fraud or collusion or based upon a facially defective affidavit?

II. Did the family court err by limiting the scope of the October 19, 1999 hearing to the validity of the Order of Publication? III. Did the notice of adoption comport with due process?

IV. Did the notice of adoption comply with section 15-9-740 and the requirements of the Order of Publication?

LAW/ANALYSIS

In an appeal from the family court, an appellate court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Mazzone v. Miles, 341 S.C. 203, 207, 532 S.E.2d 890, 892 (Ct.App.2000). However, this broad scope of review does not require this Court to disregard the family court's findings. Id. "Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony." Id.

I. Fraud or Collusion

Brown argues the family court erred by finding the Order of Publication was not based upon a facially defective affidavit or procured by fraud or collusion. We disagree.

Generally, absent fraud or collusion, once the issuing officer is satisfied with the supporting affidavit, the decision to order service by publication is final unless the order of publication is premised upon a facially defective affidavit. Wachovia Bank of S.C. v. Player, 334 S.C. 200, 204, 512 S.E.2d 129, 131 (Ct.App.1999), rev'd on other grounds, 341 S.C. 424, 535 S.E.2d 128 (2000); Yarbrough v. Collins, 293 S.C. 290, 292, 360 S.E.2d 300, 301 (1987); Montgomery v. Mullins, 325 S.C. 500, 506, 480 S.E.2d 467, 470 (Ct.App.1997); Miles v. Lee, 319 S.C. 271, 274, 460 S.E.2d 423, 425 (Ct.App.1995).

Brown contends Malloy made fraudulent statements in her affidavit by designating Los Angeles County as the place of his residence and the child's conception and by claiming that Brown did not hold himself out as the father of the child.

The testimony reflects that Orange and Los Angeles counties are adjacent. Seal Beach, where Brown resides, is near the county line. Malloy testified that Brown's residence was only ten minutes from where they both worked in Los Angeles County and that she never realized it was in a different county. Brown admitted Malloy worked with him in Los Angeles County and that she resided in Los Angeles County both before and after staying in his home.

The family court concluded Malloy did not intentionally misrepresent the location of the child's conception and Brown's residence. The court reasoned that if Malloy had intended to deceive Brown and the court she would have named a place far away from Brown's location.

We conclude this decision is heavily dependant upon credibility. The family court saw the witnesses, heard the testimony delivered from the stand, and "had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." Lee v. Lee, 237 S.C. 532, 535, 118 S.E.2d 171, 172-73 (1961). Therefore, we defer to the family court's determination of credibility and conclude that evidence in the record amply supports this conclusion.

The family court also determined Malloy did not intentionally misrepresent Brown's failure to accept parental responsibility for the child. Malloy stated in her affidavit that Brown did not provide support or hold himself out as the father of the child. She testified Brown told her she could remain in his residence, but she voluntarily chose to leave. Brown confirmed in his testimony that he made no other attempts to provide support for Malloy during her pregnancy. According to Brown's testimony, he considered it too early to buy anything for the child. The only amount he provided to Malloy was $400 four months after she signed the affidavit in question. Although Malloy acknowledged Brown told some of their co-workers about her pregnancy, she did not consider his behavior to rise to the level of holding himself out to be the father.

The family court determined Malloy's statements were not intentional misrepresentations, and, again deferring to the family court's determination of credibility, we concur in this finding. However, it is important to note that the court's determination is limited to the conclusion that Malloy's statements were not intentional misrepresentations amounting to fraud which undermined the validity of the Order of Publication. The court did not reach a conclusion that Malloy's representations were true.

Having determined that the Order of Publication was not procured through fraud or collusion or premised on a facially defective affidavit, we cannot look beyond the decision to order service by publication. See Wachovia Bank of S.C. v. Player, 341 S.C. 424, 428-29, 535 S.E.2d 128, 130 (2000)

.

II. Scope of October 19, 1999 Hearing

Brown next asserts the family court erred in limiting the scope of the October 19, 1999 hearing to the issue of the validity of the Order of Publication. Brown contends that Malloy's statements in the affidavit are false and that he offered support and intended to assume his parental responsibilities for his child. He argues that his consent to the adoption was required because he assumed parental responsibilities as outlined in section 20-7-1690 and that to the extent his actions fell short of the literal requirements of section 20-7-1690, it was a result of Malloy's deception. See S.C.Code Ann. § 20-7-1690 (Supp.2000)....