Jumper v. Hawkins, No. 3423.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Citation558 S.E.2d 911,348 S.C. 142
Decision Date17 December 2001
Docket NumberNo. 3423.
PartiesJoseph K. JUMPER, Respondent, v. Anissa R. HAWKINS, Appellant.

348 S.C. 142
558 S.E.2d 911

Joseph K. JUMPER, Respondent,
v.
Anissa R. HAWKINS, Appellant

No. 3423.

Court of Appeals of South Carolina.

Heard November 7, 2001.

Decided December 17, 2001.


348 S.C. 143
William F. Gorski, of Lexington, for appellant

George W. Branstiter, of Branstiter Law Offices, of Lexington; and Deborah R.J. Shupe, of Louthian Law Firm, of Columbia, for respondent.

348 S.C. 144
Sheila McNair Robinson, of Wilson, Moore, Taylor & Thomas, of West Columbia, Guardian ad Litem

ANDERSON, J.

In this Family Court action, Anissa R. Hawkins ("Mother") appeals an order awarding custody of the parties' minor child, Benjamin David Sims ("Benjamin"), to Joseph K. Jumper ("Father"). We reverse and remand.

FACTS/PROCEDURAL HISTORY

Benjamin was born on January 13, 1991, and is the biological child of Mother and Father. The parties never married. Mother was awarded custody of Benjamin on September 22, 1995. Father commenced this action on June 29, 1998, seeking a change of custody.

The Family Court held a pre-trial conference on May 14, 1999, approximately 10 months before the trial date. Following this conference, the judge issued an order, which memorialized the issues before the court. The order also stated that "[n]o witnesses may be added ten (10) days before trial and the witness list will be exchanged between the parties ten (10) days before trial." Counsel for both parties were present at the pre-trial conference, and these same attorneys represented the parties at trial.

When the trial began on March 7, 2000, Mother made a motion to add Dr. Lisa Jackel, a psychologist, as a witness. Mother stated that Father was informed of this witness as early as February 11, 2000. On that date, Mother's counsel told Father's counsel he had retained Dr. Jackel to testify. Father's counsel had also been advised of the witness' existence by letter faxed to him from Mother's counsel on February 28 or 29, 2000. Upon receiving the fax, Father's counsel wrote on the face of it, "I object to this witness," signed it, and returned it. At trial, Father opposed Mother's motion to allow the witness to testify.

In denying the motion, the Family Court judge stated:

I don't take lightly deviation from the Rules, and only in certain circumstances where there's absolute necessity for it and there's been no fault shown or there's been diligence shown by the parties.... I don't view this as one of those
348 S.C. 145
situations. We have a pretrial order that stands in this case. The Court's going to adhere to that.... I'm going to deny the motion. We're going to proceed with the case as set, adhering to the witness list that has been previously sent to the Court.

Mother's counsel moved for reconsideration, which the Family Court denied. In his ruling, the judge stated:

Well, I can reconsider; and I'll give you the same results. I believe I've taken great pain to explain to you how the Court views the Rules of Practice; and to allow it to be treated as something other than that clearly would undermine even the professionalism of the lawyers coming before the Court. I take this as a very serious matter.
....
... [Y]ou've really not given me any reason to deviate from the standard protocol. We have a standard pretrial order; I'm going to adhere to it. And that's what this case is going to be about. So I deny your motion after reconsidering your request.

By order filed May 4, 2000, the Family Court awarded Father permanent custody of Benjamin. Mother subsequently moved to amend the judgment and for a new trial. The Family Court judge denied Mother's motions in an order filed June 26, 2000. This appeal followed.

ISSUE

Did the Family Court err in excluding Mother's expert witness from testifying?

LAW/ANALYSIS

Sanction: Exclusion of a Witness

Mother argues the Family Court erred in strictly adhering to the pre-trial order and not allowing her to call Dr. Jackel as an expert witness. We agree and find the judge did not consider all of the relevant factors when excluding the witness.

A veracious review of this issue requires an examination of the rules and principles that govern pre-trial procedure in our state. Rule 16(b) of the South Carolina Rules of Civil Procedure

348 S.C. 146
concerns orders issued by the trial judge at the pre-trial stage
Pre-trial Orders. The court shall make a written order which recites the action, if any, taken at the hearing, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified on motion, or at the trial to prevent manifest injustice. The order may, in the court's discretion, also: (1) provide that exhibits or witnesses not listed at the hearing may not be called or admitted in evidence at the trial, unless such witness or exhibit is discovered after pre-trial hearing and promptly disclosed to opposing parties; (2) provide that all motions pending at the time of the hearing which are not presented for disposition are deemed abandoned; (3) provide that all or part of the pre-trial hearing be continued to a future time, or that additional pre-trial hearings be scheduled to promote the orderly and efficient disposition of the action.

(emphasis added).

The Family Court expressly recognizes the Rules of Civil Procedure. See Rule 2, SCRFC(a) ("In addition to the rules set forth in Sections I, II and III of these Rules of Family Court, the South Carolina Rules of Civil Procedure (SCRCP) shall be applicable in domestic relations actions to the extent permitted by Rule 81, SCRCP.") This recognition, however, is not without exception. See id. ("The following SCRCP, however, shall be inapplicable: 5(a) to the extent it does not require notice to a defendant of every hearing, 8(d) to the extent it provides that the failure to file a responsive pleading constitutes an admission, 12(b) to the extent it permits a 12(b)(6) motion to be converted to a summary judgment motion, 12(c), 13(j), 18, 23, 38, 39, 40(a & b), 42 to the extent it refers to trial by jury, 43(b)(1) to the extent it limits the use of leading questions to cross-examination, 43(i & j), 47, 48, 49, 50, 51, 54(c) to the extent it permits the court to grant relief not requested in the pleadings, 55, 56, 68, 69, 71, 72, 78, 79, and 84."). Rule 16, SCRCP is not excluded by virtue of Rule 2(a),

348 S.C. 147
SCRFC. Therefore, Rule 16, SCRCP is applicable in the Family Court's domestic dispute setting.

Rule 16, SCRCP is imbued with discretion to be exercised by the Family Court judge to prevent "manifest injustice." Additionally, Rule 16, SCRCP specifically...

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26 practice notes
  • Trivelas v. South Carolina Dept. of Transp., No. 3421.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2001
    ...of the deposition testimony are properly filed in the record or the parties have stipulated to the facts. See Id.; Rule 56(c), SCRCP.1 348 S.C. 142 For the foregoing reasons, I would reverse and remand for further proceedings, but would allow reconsideration of the motion made by Trivelas, ......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...trial [court]." Bryson v. Bryson, 378 S.C. 502, 506, 662 S.E.2d 611, 613 (Ct. App. 2008) (alteration by court) (quoting Jumper v. Hawkins, 348 S.C. 142, 150, 558 S.E.2d 911, 915 (Ct. App. 2001)). "Exclusion of a witness is a sanction which should never be lightly invoked." Id. (quoting Jump......
  • Lee v. Smith, S18G1549
    • United States
    • Georgia Supreme Court
    • February 10, 2020
    ...in allowing the testimony; and (4) the availability of a continuance to cure such prejudice") (citations omitted); Jumper v. Hawkins , 348 S.C. 142, 558 S.E.2d 911, 916 (Ct. App. 2001) ("[I]n the face of a pre-trial order mandating the disclosure of a witness by a certain date, a trial judg......
  • Lee v. Smith, S18G1549
    • United States
    • Supreme Court of Georgia
    • February 10, 2020
    ...(3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice"); Jumper v. Hawkins , 348 S.C. 142, 558 S.E.2d 911, 916 (Ct. App. 2001) ("[I]n the face of a pre-trial order mandating the disclosure of a witness by a certain date, a trial ......
  • Request a trial to view additional results
26 cases
  • Trivelas v. South Carolina Dept. of Transp., No. 3421.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2001
    ...of the deposition testimony are properly filed in the record or the parties have stipulated to the facts. See Id.; Rule 56(c), SCRCP.1 348 S.C. 142 For the foregoing reasons, I would reverse and remand for further proceedings, but would allow reconsideration of the motion made by Trivelas, ......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...trial [court]." Bryson v. Bryson, 378 S.C. 502, 506, 662 S.E.2d 611, 613 (Ct. App. 2008) (alteration by court) (quoting Jumper v. Hawkins, 348 S.C. 142, 150, 558 S.E.2d 911, 915 (Ct. App. 2001)). "Exclusion of a witness is a sanction which should never be lightly invoked." Id. (quoting Jump......
  • Lee v. Smith, S18G1549
    • United States
    • Georgia Supreme Court
    • February 10, 2020
    ...in allowing the testimony; and (4) the availability of a continuance to cure such prejudice") (citations omitted); Jumper v. Hawkins , 348 S.C. 142, 558 S.E.2d 911, 916 (Ct. App. 2001) ("[I]n the face of a pre-trial order mandating the disclosure of a witness by a certain date, a trial judg......
  • Lee v. Smith, S18G1549
    • United States
    • Supreme Court of Georgia
    • February 10, 2020
    ...(3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice"); Jumper v. Hawkins , 348 S.C. 142, 558 S.E.2d 911, 916 (Ct. App. 2001) ("[I]n the face of a pre-trial order mandating the disclosure of a witness by a certain date, a trial ......
  • Request a trial to view additional results

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