Ex parte Atkinson

• Decision Date: 18 July 1961
• Docket Number: No. 17805,17805
• Citation: 121 S.E.2d 4,238 S.C. 521
• Court: South Carolina Supreme Court
• Parties: Ex parte Mary Elizabeth Dobson ATKINSON, Petitioner-Appellant. In re Hoyle Lawrence DOBSON, Plaintiff-Respondent, v. Mary Elizabeth DOBSON, Defendant.

Page 4

121 S.E.2d 4

238 S.C. 521

Ex parte Mary Elizabeth Dobson ATKINSON, Petitioner-Appellant In re Hoyle Lawrence DOBSON, Plaintiff-Respondent, v. Mary Elizabeth DOBSON, Defendant.

No. 17805.

Supreme Court of South Carolina.

July 18, 1961.

O. L. Long, Laurens, Thomas H. Pope, Newberry, for appellant.

Edens & Woodward, Columbia, for respondent.

MOSS, Justice.

Mary Elizabeth Dobson Atkinson, the appellant herein, and Hoyle Lawrence Dobson, the respondent herein, were husband and wife from the time of their marriage on May 11, 1953, until May 11, 1956, at which time the respondent was granted a divorce from the appellant upon the ground of desertion. The only child of this marriage was Sally Pamela Dobson, born March 15, 1954. At the time of the divorce between the parties to this action, her custody was awarded to the appellant with the respondent having certain visitorial privileges.

The appellant did thereafter marry Dr. J. E. Atkinson, a Captain in the United States Army, and he was at such time under orders for a two year tour of duty upon the Island of Taiwan. When the respondent learned that it was the intention of the appellant to accompany her husband to the Island of Taiwan, taking with her the child, Sally Pamela Dobson, a petition was filed by him seeking to restrain and enjoin the appellant from removing the child from the jurisdiction of Richland County, South Carolina, upon the ground that such child was not receiving proper care, in that the mother had demonstrated a lack of love and affection for said child and did not have the temperament and disposition necessary for the rearing and caring for a child of tender years. The respondent here asked that permanent custody of the said child be awarded to him. The appellant duly filed a Return, denying the allegations of the petition which allege that she was an unfit person to have the care and custody of the child. She further set forth that she had married Dr. J. E. Atkinson, who was under orders for a tour of duty on the Island of Taiwan, and prayed that she and her husband be permitted to carry the child with them.

The case was referred to the Standing Master for Richland County for trial. After the taking of testimony, the Master filed his Report, finding that the appellant was a fit, proper and suitable person to have the care, control and custody of the said child, and that it was for the best interest of the child to be in the custody of the mother. Exceptions to the Report were duly taken by the respondent and, thereafter, the Honorable Legare Bates, Judge of the Richland County Court, confirmed the Master's Report, by a decree dated March 19, 1957. The respondent prosecuted an appeal to this Court and we affirmed the decree and judgment of the County Court. Dobson v. Atkinson, 232 S.C. 12, 100 S.E.2d 531.

The appellant, with the child, accompanied her husband to the Island of Taiwan, where they remained until Dr. Julian E. Atkinson was released from active military duty. They returned to South Carolina about the middle of September, 1958. At the time the appellant returned she was enceinte and her condition, according to her own statement, was 'precarious.' The testimony shows that upon the return of the appellant and her family to the United States, that they visited with their families for a few days and, thereafter, Dr. Atkinson did, on October 8, 1958, move to Laurens, South Carolina, to practice his profession. Shortly after moving to Laurens, the appellant entered a hospital there and was under the constant care of a physician because of a threatened miscarriage. After leaving the hospital, the appellant's physical condition did not improve and on January 17, 1959, her child was born dead. The testimony is undisputed that from the early part of November, 1958, until after the appellant lost her baby in January, 1959 she was unable to leave her home in Laurens, South Carolina, to attend court in connection with any hearings concerning the custody of Sally Pamela Dobson.

It appears that on October 13, 1958, that Honorable Legare Bates, Judge of the Richland County Court, upon the informal complaint of the respondent and his parents, addressed a letter to the appellant at the home of her parents in Columbia, South Carolina, wherein he stated that he was writing the letter in order to give the appellant the opportunity of making some satisfactory arrangements with the respondent concerning visitation privileges with the child. This letter was not delivered to the appellant because of the condition of her health. On October 30, 1958, no response having been made to his letter, Judge Bates issued a Rule to Show Cause, returnable on November 5, 1958, based on the petition of the respondent, directing the appellant to show cause (1) Why she should not be adjudged in contempt for failing to communicate with the court upon her return to the United States; (2) Why the decree of divorce should not be amended to award the custody of the child to the respondent; and (3) Why a fair division of the custody of the child should not be had. This order was not served upon the appellant because of the condition of her health. On November 4, 1958, Judge Bates issued an ex parte order, directing the sheriff of Richland County to take Sally Pamela Dobson into his custody and deliver her to the respondent, such custody of the said child with the respondent is 'temporary and during the pendency of the merits of the petition filed in this cause, that said custody be awarded to Hoyle Lawrence Dobson.' On November 15, 1958, the appellant petitioned the court for the modification of the order of November 4, 1958, and asked that the original order of the court, granting custody of the child to the appellant, be reinstated. The petition of the appellant set forth the condition of her health and asserted her need for the comfort and society of her child. A hearing was had before Judge Bates on November 20, 1958, the appellant appeared by counsel. Dr. Atkinson also appeared and testified as to the condition of the health of the appellant, she being unable to attend because of such condition. It appears that on November 21, 1958, Judge Bates passed an order denying the appellant's petition but modified the order of November 4, 1958, so as to provide weekend visitation privileges to the appellant. He likewise continued in effect the order of November 4, 1958, until the appellant was able to appear personally for a full hearing on the petition and Rule to Show Cause initiated by the respondent on October 30, 1958. On January 22, 1959, Judge Bates passed a consent order reciting that because the appellant was still unable to appear for a hearing, the weekend visitation privileges set forth in the order of November 21, 1958, should continue until the further order of the court.

A hearing was scheduled for April 1, 1959, before Judge Bates on respondent's petition of October 30, 1958, and the parties appeared personally and by counsel. After an informal conference, Judge Bates orally declined to modify his previous order. No formal order was ever rendered. The custody of the child remained with the respondent under the previous orders of the court, and the appellant continued to avail herself of the weekend visitation privileges provided in such orders.

The appellant, on October 8, 1959, petitioned the court that the custody of Sally Pamela Dobson be confirmed to her in accordance with the decrees of the County Court dated May 11, 1956 and March 19, 1957. The respondent duly filed his answer to this petition on December 3, 1959. This matter was, by order of Judge Bates, referred to the Master for Richland County to take the testimony and to report his conclusions of fact and law as to the proper custody of the infant child. Pursuant to this order of reference, the Master duly convened a hearing and took the testimony offered by the parties. The Master filed his Report on March 7, 1960, in which he found, inter alia: (1) That the County Court very wisely passed an order granting custody of the minor to the respondent during the illness of the appellant; (2) That the appellant, the mother of the infant child, has fully recovered from her illness, and lives with her husband in Laurens, South Carolina, in a home located in a highly respected neighborhood, and devotes her entire time to her household duties and is now able to care for the child; (3) That the respondent is relying upon the identical grounds which have heretofore been adjudicated in the original divorce action and in the action granting permission to the appellant to take the infant to the Island of Taiwan; (4) That the welfare of the child is the first consideration of the Court; (5) That the respondent and his mother did an excellent job of looking after the infant during the illness of the appellant; (6) That since the appellant has fully recovered and devotes her full time to her household duties, the custody of the infant should be returned to her; and (7) That respondent should have proper and adequate visitorial privileges.

The respondent filed numerous exceptions to the Master's Report and on June 4, 1960, Judge Bates signed a decree sustaining all of the exceptions to the Master's Report and ordered that the custody of the child be lodged in the respondent under the orders of the court dated November 4, 1958, November 21, 1958 and January 22, 1959, until the further order of the court. In some respects he modified the visitorial privileges previously granted to the appellant. Within due time the appellant gave notice of intention to appeal to this Court.

The first question for determination is what effect did the orders passed by Judge Legare Bates, dated November 4, 1958 November 21, 1958, and January 22, 1959, have upon the permanent custody of the infant Sally Pamela Dobson.

When the divorce decree of May 11, 1956 was granted, the appellant was given the care, control and...