Johnson v. Johnson, 2018-UP-447

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM:
Decision Date05 December 2018
PartiesBernard Johnson, Respondent, v. Jonquiel T. Johnson, Appellant. Appellate No. 2016-002289
Docket Number2018-UP-447

Bernard Johnson, Respondent,
v.

Jonquiel T. Johnson, Appellant.

Appellate No. 2016-002289

No. 2018-UP-447

Court of Appeals of South Carolina

December 5, 2018


THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted October 1, 2018

Appeal From Richland County Monét S. Pincus, Family Court Judge

James Ross Snell, Jr. and Vicki D Koutsogiannis, of Law Office Of James R. Snell, Jr., LLC, both of Lexington, for Appellant.

Ryan W. Lane, of The Lane Law Firm, LLC, of Columbia, for Respondent.

PER CURIAM:

Jonquiel Johnson (Mother) appeals the family court's award of joint custody of a minor child (Child) with primary placement to Bernard Johnson (Father). On appeal, Mother argues the family court erred in (1) denying her motions for reconsideration or a new trial under Rules 59(e) and 60(b), SCRCP, (2) failing to consider Mother's role as primary caretaker when awarding primary placement of Child with Father, (3) concluding Mother deliberately failed to cooperate with Father regarding visitation and Child's care, and (4) providing insufficient time for Mother to present her case during the final hearing. We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the family court erred in denying Mother's post-trial motions: Ware v. Ware, 404 S.C. 1, 10, 743 S.E.2d 817, 822 (2013) ("The decision to deny or grant a motion made pursuant to Rule 60(b), SCRCP[, ] is within the sound discretion of the [family court]."); Lanier v. Lanier, 364 S.C. 211, 216, 612 S.E.2d 456, 458 (Ct. App. 2005) ("[This court's r]eview is thus limited to determining whether the family court abused its discretion in granting or denying the motion."); Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (acknowledging our appellate courts review the family court's "evidentiary or procedural rulings . . . using an abuse of discretion standard"); Bowers v. Bowers, 304 S.C. 65, 67, 403 S.E.2d 127, 129 (Ct. App. 1991) ("The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle [her] to relief."); id. at 68, 403 S.E.2d at 129 ("Such evidence is usually provided through affidavits."); Rule 60(b)(1)-(3), SCRCP (providing that "[o]n motion and upon such terms as are just, the court may relieve a party" from a final order due to "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); [or] (3) fraud, misrepresentation, or other misconduct of an adverse party"); Rouvet v. Rouvet, 388 S.C. 301, 309-10, 696 S.E.2d 204, 208 (Ct. App. 2010) ("Generally, 'the neglect of the attorney is the neglect of the client, and . . . no mistake, inadvertence, or neglect attributable to the attorney can be successfully used as a ground for relief, unless it would have been excusable if attributable to the client.'" (omission in original) (quoting Stearns Bank Nat'l Ass'n v. Glenwood Falls, LP, 373 S.C. 331, 342, 644 S.E.2d 793, 798 (Ct. App. 2007))); Lanier, 364 S.C. at 218, 612 S.E.2d at 459 ("[C]ourts have found evidence is not newly discovered evidence for the purposes of Rule 60(b)(2) whe[n] the evidence was (1) known to the party at the time of trial, and (2) in the party's possession."); id. at 219, 612 S.E.2d at 460 ("[D]ocuments in the possession of a party's agent, such as an attorney . . ., are deemed to be in the party's possession because the party retains control over the documents." (quoting Lans v. Gateway 2000, Inc., 110 F.Supp.2d 1, 5 (D.S.C. 2000))); Gainey v. Gainey, 382 S.C. 414, 425, 675 S.E.2d 792, 798 (Ct. App. 2009) ("In South Carolina, extrinsic fraud is the only type of fraud for which relief may be granted under Rule 60(b)(3), SCRCP."); Rycroft v. Tanguay, 279 S.C. 76, 79, 302 S.E.2d 327, 329 (1983) ("[P]erjury . . . [by] a party or his witnesses is a species of intrinsic,...

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