Duckett v. Goforth

• Decision Date: 15 May 2007
• Docket Number: No. 4246.,4246.
• Citation: 649 S.E.2d 72
• Court: South Carolina Court of Appeals
• Parties: Elenita R. DUCKETT, Appellant, v. Ronald R. GOFORTH and Frank Raymond Greenhough, Defendants, of whom Ronald R. GOFORTH is Respondent.

649 S.E.2d 72

Elenita R. DUCKETT, Appellant, v. Ronald R. GOFORTH and Frank Raymond Greenhough, Defendants, of whom Ronald R. GOFORTH is Respondent.

No. 4246.

Court of Appeals of South Carolina.

Submitted May 1, 2007.

Decided May 15, 2007.

Rehearing Denied August 27, 2007.

Matthew P. Turner and J. Michael Turner, Sr., both of Laurens, for Appellant.

Ronald R. Goforth of Fayetteville, AR, Pro Se Respondent.

ANDERSON, J.

Elenita R. Duckett ("Duckett") initiated an action in Greenwood County Family Court to determine paternity and adjudicate custody and child support in regard to Ronald R. Goforth ("Goforth"). The family court found it lacked jurisdiction to address Duckett's petition and dismissed the action. We reverse and remand.¹

FACTUAL/PROCEDURAL BACKGROUND

The minor child "H.J." was allegedly conceived as the result of a relationship between Duckett and Goforth while they were in the Philippines. Duckett was married to Frank Raymond Greenhough (Greenhough) who, according to Duckett, was in Australia at the time of H.J.'s conception. In June 1994, Duckett learned she was pregnant and informed Goforth. Because she was frightened of having a child on her own, Duckett asked Greenhough for his assistance and they reconciled. Both agreed that Greenhough would serve as H.J.'s father. On February 1, 1995, Duckett gave birth in the Philippines. In 1997, Duckett and Greenhough moved from the Philippines to Australia.²

On February 1, 2000, Duckett filed an application for dissolution of the marriage and designated H.J. as a child of the marriage, but on March 30, 2000, Duckett submitted an affidavit in which she averred that Goforth was H.J.'s biological father.

On March 27, 2000, the Australian family court issued a Decree Nisi of Dissolution of Marriage between Duckett and Greenhough. The decree incorporated previously issued orders awarding Duckett custody, assigning joint financial responsibility for H.J., and providing Greenhough with visitation rights. The tribunal declared it was satisfied that H.J. was the only child of the marriage and proper arrangements for her welfare had been made. In addition, a restraining order remained in place to prevent either party from removing H.J. from the Western State of Australia without written consent.

On June 4, 2001, Duckett and H.J. left Australia without the Australian court's permission and traveled to the United States, where they have remained for the last five years. Duckett settled in Greenwood County and remarried.

On December 14, 2001, Duckett petitioned the Washington County Family Court in the State of Arkansas, where Goforth resided, to determine paternity and award child support. Duckett named Goforth as the father but did not name Greenhough as a party or notify him of the proceedings. Goforth moved to dismiss, alleging Arkansas was not H.J.'s home state and the Arkansas court lacked jurisdiction. Ultimately, the Arkansas Supreme Court ruled the Washington County Court did not have jurisdiction to hear the petition because Arkansas was not the home state of the child.

On August 27, 2002, Greenhough filed an application in accordance with the Hague Convention for H.J.'s return to Australia. Two days later, Greenhough filed an application, pursuant to the Hague Convention, for the enforcement of the Australian visitation order. On March 4, 2004, Greenhough filed an application in Australia seeking the return of H.J. The application was dismissed following a hearing on January 24, 2005.

Duckett instituted this action in the Greenwood County Family Court requesting a finding of paternity, child support and other related relief. Goforth moved to dismiss, arguing the family court lacked subject matter jurisdiction by virtue of the prior rulings of the Australian and Arkansas courts and the on-going litigation in Australia. Additionally, he alleged the family court lacked personal jurisdiction. He pled res judicata as a defense. The family court issued the following order:

24. This Court finds that it does lack subject matter jurisdiction. It is clear that the child was born during the marriage of the Plaintiff [Duckett] and husband [Greenhough]. There is a presumption that the husband is the father. It is noted that the divorce decree of the Plaintiff and husband made findings in relation to visitation, support and custody of the child between the husband and Plaintiff, and that neither party appealed that ruling.

25. Further, that the Plaintiff's subsequent conduct of applying to the Australian Court for both the divorce and permission to remove the child from Australia reinforces to this Court the continuing effect of that Australian Court's order and jurisdiction.

24.³ The Court also finds that since there is a presumption that a child born during the marriage is a product of the husband and wife, Plaintiff must first establish that the husband is not the father of the child before she can bring an action to declare another person (Goforth) as the father. This Court has been provided no proof that this child born of the marriage is not the child of the father. Without such evidence, this Court lacks personal jurisdiction over the Defendant pursuant to SCRCP 12(b)(2).

25. Next, Goforth argues that this matter should be dismissed as this Court must acknowledge and recognize the Australian decrees . . . . Since there has been an adjudication of these matters and recent pending litigation in the Australian Courts, this Court declines to exercise jurisdiction in this instance.

26. Finally, Goforth argues that this matter has been litigated and appealed to the highest Court of the State of Arkansas. Additionally, the issue of paternity has been litigated in Australia, and that court has ruled that this is a child of the marriage. These orders have never been contested or appealed and are final. Specific rulings and findings have been issued, and this Court must give full faith and credit to those orders and findings. This Court agrees.

Duckett filed a Rule 59(e), SCRCP, motion for reconsideration, which the family court denied.

ISSUES

I. Did the family court err in concluding it lacked subject matter jurisdiction when South Carolina is the home state of the minor child?

II. Did the family court err in concluding it did not have personal jurisdiction over Goforth?

III. Did the family court err in concluding it was without jurisdiction because of a prior Australian decree?

STANDARD OF REVIEW

In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct.App.2005) (citing Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct.App. 2004)). However, this broad scope of review does not require this court to disregard the family court's findings. Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149 (Ct.App. 2005) (citing Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002)); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999). Nor must we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003) (citing Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996)). However, our broad scope of review does not relieve the appellant of the burden of convincing this court the family court committed error. Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E.2d at 711 (citing Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979)).

LAW/ANALYSIS

I. Uniform Child Custody Jurisdiction Act (UCCJA)

A. Subject Matter Jurisdiction

Duckett contends South Carolina is the home state of the child and the family court erred in finding it lacked subject matter jurisdiction. We agree. Additionally, Duckett maintains the family court erred in concluding this matter should be dismissed because the court must recognize the Australian decree in accordance with section 20-7-830 of the South Carolina Code (1985). We agree.

"The jurisdiction of a court over the subject matter of a proceeding is determined by the Constitution, the laws of the state, and is fundamental." Badeaux v. Davis, 337 S.C. 195, 205, 522 S.E.2d 835, 840 (Ct.App. 1999). Because Duckett's amended complaint included a request for custody, the jurisdictional question requires analysis under the Uniform Child Custody Jurisdiction Act (UCCJA).⁴

The UCCJA was enacted to:

(1) avoid jurisdictional competition and conflict with courts in other states in matters of child custody . . .; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child; (3) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available . . . .

S.C.Code Ann. § 20-7-784 (1985) (emphasis added).

Under the UCCJA, a state has jurisdiction to make an initial or change in custody determination if

(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State and (ii) there is available in this...