Choudhry v. Sinha
Decision Date | 16 December 2020 |
Docket Number | 2020-UP-262 |
Parties | Neelu Choudhry, Respondent, v. Viresh Sinha, Appellant. |
Court | Court of Appeals of South Carolina |
Submitted April 1, 2020 - Filed September 9, 2020
Appeal From Richland County Gwendlyne Y. Jones, Family Court Judge
Viresh Sinha, of Columbia, pro se.
William Benito Fortino, of Moore Taylor Law Firm, P.A., of West Columbia, for Respondent.
Richard Giles Whiting, of Law Offices of Richard Whiting, of Columbia, as the Guardian ad Litem.
Viresh Sinha (Father) appeals the family court's order modifying a prior order to award Neelu Choudhry (Mother) sole custody of their minor child (Child), awarding Mother attorney's fees, holding Father in contempt for failing to pay child support, refusing to hold Mother in contempt for failing to allow FaceTime calls, and ordering Father to pay child support. On appeal, Father argues the family court erred in (1) not allowing evidence of a prior agreement, (2) denying Father's motion for a continuance, (3) holding Father in contempt for not paying child support and denying his oral motion to amend his pleadings to include a cause of action to recalculate his child support, (4) imputing income to Father for purposes of child support and not finding Mother and her attorney committed fraud, (5) awarding attorney's fees and not finding Mother's current attorney, Mother's previous attorney, and the guardian ad litem (GAL) unduly delayed the case, (6) not holding Mother in contempt for not allowing FaceTime calls and failing to follow a February 2016 order, (7) not finding the GAL committed fraud, (8) refusing to allow Father to amend his pleadings, (9) relying on certain witnesses' testimonies, and (10) modifying child custody and making its factual findings. We affirm.
1. The family court did not abuse its discretion in not admitting testimony regarding a prior agreement under Rule 408, SCRE. See Stoney v. Stoney (Stoney I), 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) ( ); Reiss v. Reiss, 392 S.C 198, 208, 708 S.E.2d 799, 804 (Ct. App. 2011) (). Evidence of prior agreements or negotiations are not admissible under Rule 408, SCRE, except to show another purpose, such as bias or prejudice, to negate an allegation of undue delay, or to prove an effort to obstruct a criminal investigation. Because Father's purpose to admit evidence about the agreement is insufficient under the rule, the family court properly excluded testimony about the agreement. See Hunter v. Hyder, 236 S.C. 378, 387, 114 S.E.2d 493, 497 (1960) ("[C]ompromises are favored and evidence of an offer or attempt to compromise or settle a matter in dispute cannot be given in evidence against the party by whom such offer or attempt was made."); Rule 408, SCRE ("Evidence of conduct or statements made in compromise negotiations is . . . not admissible."); id. ( ). Additionally, Father's arguments that Mother and her attorney committed fraud and the family court violated Father's First Amendment rights by not allowing him to testify about the agreement are not preserved. See Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 (Ct. App. 2006) ().
2. The family court did not abuse its discretion in denying Father's motion for a continuance. Prior to trial, the family court inquired about Father's ability to represent himself, and Father stated he understood he would be held to the same standards as an attorney. Father moved for a continuance on the third day of trial to hire an attorney.[1] Based on the family court's inquiry and Father actively participating in trial, we find the family court did not abuse its discretion in denying his motion for a continuance. See Stoney I, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2 ( ); Rule 40(i)(1), SCRCP () ; S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 51, 413 S.E.2d 835, 838 (1992) (); S.C. Dep't of Soc. Servs. v. Laura D., 386 S.C. 382, 385, 688 S.E.2d 130, 132 (Ct. App. 2009) .
3. The family court did not err in finding Father in willful contempt for failing to pay child support because Father admitted he never paid child support even though the court ordered him to do so. See Stoney I, 422 S.C. at 595-96, 813 S.E.2d at 487 ( ); Stoney v. Stoney (Stoney II), 425 S.C. 47, 76, 819 S.E.2d 201, 217 (Ct. App. 2018) , cert. denied Stoney v. Stoney, SC Sup. Ct. Order dated Jun. 28, 2019; Miller v. Miller, 375 S.C. 443, 454, 652 S.E.2d 754, 760 (Ct. App. 2007) ; Wilson v. Walker, 340 S.C. 531, 538, 532 S.E.2d 19, 22 (Ct. App. 2000) ("Before a party may be found in contempt, the record must clearly and specifically show the contemptuous conduct."). Although Father testified about his reasons for not paying child support, we find these reasons do not justify his failure to pay when the testimony at trial showed he had the ability to pay child support, including Father's testimony that he deposited money into his bank accounts and chose to pay other bills. See Miller, 375 S.C. at 454, 652 S.E.2d at 760 . Additionally, the family court did not abuse its discretion in denying his oral motion to amend his pleadings to include a cause of action to recalculate his child support. See Stoney I, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2 ( ); Rule 15(a), SCRCP ( ); id. ( ); Skydive Myrtle Beach, Inc. v. Horry County, 426 S.C. 175, 182, 826 S.E.2d 585, 588 (2019) ().
4. The family court did not err in imputing income to Father for purposes of child support based on the testimony presented at trial. Although Father testified that he had no income, which the family court found unreliable, Father's bank statements reflected numerous deposits into his personal account. Father also had the ability to earn additional income. See Stoney I, 422 S.C. at 595-96, 813 S.E.2d at 487 ( ); Marchant v. Marchant, 390 S.C. 1, 9, 699 S.E.2d 708, 712-13 (Ct App. 2010) ( ); S.C. Code Ann. Regs. 114-4720(A)(5) (Supp. 2019) (); Marchant, 390 S.C. at 10, 699 S.E.2d at 713 ( ); id. ; Jenkins v. Jenkins, 401 S.C. 191, 203, 736 S.E.2d 292, 299 (Ct. App. 2012) (...
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