Kosciusko v. Parham, Appellate Case No. 2017-000016

CourtCourt of Appeals of South Carolina
Writing for the CourtGEATHERS, J.
Decision Date06 November 2019
Parties Robert Dale KOSCIUSKO, Appellant, v. Alice Witherspoon Wilson PARHAM, Respondent. In Re: Alice Witherspoon Wilson Parham n/k/a Alice Witherspoon Parham Casey, Respondent, v. Robert Dale Kosciusko, Appellant.
Docket NumberOpinion No. 5690,Appellate Case No. 2017-000016

428 S.C. 481
836 S.E.2d 362

Robert Dale KOSCIUSKO, Appellant,
v.
Alice Witherspoon Wilson PARHAM, Respondent.


In Re: Alice Witherspoon Wilson Parham n/k/a Alice Witherspoon Parham Casey, Respondent,
v.
Robert Dale Kosciusko, Appellant.

Appellate Case No. 2017-000016
Opinion No. 5690

Court of Appeals of South Carolina.

Heard October 14, 2019
Filed November 6, 2019
Rehearing Denied December 19, 2019


John O. McDougall, of McDougall, Self, Currence & McLeod, LLP, of Columbia, and Katherine Carruth Goode, of Winnsboro, both for Appellant.

Whitney Boykin Harrison, of McGowan Hood & Felder, LLC, of Columbia, for Respondent.

GEATHERS, J.:

428 S.C. 487

In this family court action, Robert Kosciusko ("Father") sought a finding of contempt against Alice Witherspoon Parham Casey ("Mother") for alleged violations of an order confirming an arbitration award concerning child custody and visitation. Father argues the family court erred in dismissing his contempt action by: 1) finding that it lacked subject-matter jurisdiction to enforce the family court's prior order confirming the arbitration award; 2) failing to find that Mother was estopped from challenging the award and waived any objection to the enforceability of the order confirming the award; 3) refusing to enforce the unappealed order of a different family court judge confirming the arbitration award; and 4) refusing to enforce the order confirming the arbitration award when South Carolina's public policy favors alternative dispute resolution and the widespread practice in the state includes voluntary arbitration of children's issues. As an additional sustaining ground, Mother argues Father failed to meet his burden of proof in the underlying rule to show cause motion. We affirm.

428 S.C. 488

FACTS

Mother and Father were married on October 6, 2001.1 During their marriage, the parties

836 S.E.2d 366

had two children. As a result of the breakdown of the marriage, Mother and Father separated and entered into a property settlement, support, and custody agreement that established "true joint custody" of the children; and, on July 15, 2011, the family court entered an order approving the agreement. The agreement was later modified by an addendum, which was approved by a supplemental order of the family court on December 19, 2011. The parties were divorced on July 27, 2012. In the divorce order, the family court determined that all of the matters within its jurisdiction, including child custody and visitation, had been resolved by the final order approving the parties' settlement agreement.

Despite the parties' settlement agreement, child custody and visitation became contentious issues between Mother, Father, and Father's new wife, Deena Dill. On July 7, 2015, and August 20, 2015, Mother and Father attempted to mediate issues involving child custody and visitation, but both attempts were unsuccessful. After the failed mediations, the parties agreed to submit the issues of "right of first refusal, holidays, visitation schedule, vacations, and transfers/transportation" to binding arbitration and obtained a consent order incorporating the agreement. However, the parties did not seek to alter the original joint-custody award established in the settlement agreement. The consent order was issued by the Honorable Monet S. Pincus on October 14, 2015.

Under the terms of the consent order, the parties agreed to present the arbitration award to the family court for confirmation pursuant to section 15-48-120 of the South Carolina Code (2005),2 part of the Uniform Arbitration Act, S.C. Code Ann. § 15-48-10 to -240 (2005). The order provided that "[t]he

428 S.C. 489

parties further agree[d] that such confirmation shall not require a [h]earing, but may be accomplished based on written application of either party." Additionally, the order provided that the family court would retain continuing jurisdiction to modify the arbitration award or any order of the court.

The parties proceeded to binding arbitration, and the arbitrator issued an award on November 23, 2015. Two provisions of the award are relevant to Father's contempt action. First, pursuant to the parties' settlement agreement, the arbitrator determined custody would follow a "week on/week off" schedule. However, the arbitrator clarified that "[t]he week period shall begin on Monday morning (at school drop-off or if there is no school at 10:00 a.m.)." Second, the arbitrator determined "[t]he parent having the children in their custody at the conclusion of their time when the children are to be returned to school shall have the obligation to timely return the child/children to school at the conclusion of their time with the child/children if school is in session." On November 30, 2015, Judge Pincus issued an order confirming the arbitration award without a hearing. Neither party appealed the order confirming the award.

On July 5, 2016, Father, acting pro se , filed a complaint before the Honorable Robert S. Armstrong seeking to hold Mother in contempt for alleged violations of the arbitration award. In his complaint, Father asserted Mother was in violation of the provision requiring that the children be timely returned to school because the children had accumulated five tardies and two absences over the course of a school year. A rule to show cause was issued by the family court on July 12, 2016. On September 21, 2016, Mother served Father with her return, in which she argued the arbitration award was invalid and could not be enforced because it constituted an improper delegation of the family court's authority. Mother also asserted Father's contempt action was frivolous and part of a pattern of uncooperative and harassing behavior directed at Mother by Father and Ms. Dill. Mother filed her return with the court prior to the hearing on September 22, 2016.

At the outset of the hearing, Mother moved to dismiss the contempt action, arguing there was not a valid order to enforce. In

836 S.E.2d 367

considering the validity of the order confirming the

428 S.C. 490

arbitration award, the family court noted the law regarding arbitration of children's issues is not clear but indicated that case law "has been consistent that the court cannot [delegate] its authority on matters concerning children and custody." The family court ultimately found the order to be unenforceable because no statute provides the family court with jurisdiction to submit issues of child custody and visitation to binding arbitration and case law precludes the family court from delegating such authority to a third party. On October 6, 2016, the family court entered an order finding there was no valid order to enforce, dismissing the contempt action with prejudice, and discharging the rule to show cause.

On October 17, 2016, Father filed a motion to reconsider, alter, or amend the family court's order. Mother filed a return to the motion on October 28, 2016, and Father filed a reply. On October 31, 2016, the family court conducted a telephone conference with the parties regarding the motion to reconsider and entered an order denying the motion on December 5, 2016. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in finding that it lacked subject-matter jurisdiction to enforce the family court's prior order confirming the arbitration award?

2. Did the family court err in failing to find that Mother was estopped from challenging the award and waived any objection to the enforceability of the order confirming the award?

3. Did the family court err in refusing to enforce the unappealed order of a different family court judge confirming the arbitration award?

4. Did the family court err in refusing to enforce the order confirming the arbitration award when South Carolina's public policy favors alternative dispute resolution?

5. Did Father meet his burden of proof in the underlying rule to show cause motion?
428 S.C. 491

STANDARD OF REVIEW

"The family court is a court of equity." Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). "Our standard of review, therefore, is de novo ." Id . ; see also Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) ("[W]e reiterate that the proper standard of review in family court matters is de novo, rather than an abuse of discretion ...."). Accordingly, "[o]n appeal from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence." S.C. Dep't of Soc. Servs. v. Polite , 391 S.C. 275, 279, 705 S.E.2d 78, 80 (Ct. App. 2011). However, "de novo review neither relieves an appellant of demonstrating error nor requires [an appellate court] to ignore the findings of the family court." Lewis , 392 S.C. at 389, 709 S.E.2d at 654. Rather, an appellate court "will affirm the decision of the family court in an equity case unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports...

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8 practice notes
  • Glinyanay v. Tobias, 5895
    • United States
    • Court of Appeals of South Carolina
    • February 23, 2022
    ...authority to determine the best interests of the children . . . ."). Accordingly, we reverse as to this issue. See Kosciusko v. Parham, 428 S.C. 481, 502, 836 S.E.2d 362, 373 (Ct. App. 2019); Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003); Stefan v. Stefan, 320 S.C.......
  • Glinyanay v. Tobias, Appellate Case No. 2019-001623
    • United States
    • Court of Appeals of South Carolina
    • February 23, 2022
    ...its authority to determine the best interests of the children ...."). Accordingly, we reverse as to this issue. See Kosciusko v. Parham , 428 S.C. 481, 502, 836 S.E.2d 362, 373 (Ct. App. 2019) ; Hardy v. Gunter , 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003) ; Stefan v. Stefan , 32......
  • Singh v. Singh, Appellate Case No. 2015-000434
    • United States
    • Court of Appeals of South Carolina
    • December 18, 2019
    ...subsequent orders superseded the orders challenged in those motions.6 However, in Kosciusko v. Parham , Op. No. 5690, ––– S.C.App. ––––, 836 S.E.2d 362, 2019 WL 5778083 (S.C. Ct. App. filed Nov. 6, 2019) (Shearouse Adv. Sh. No. 43 at 48, 52), we recently concluded the court rules and establ......
  • DiMarco v. DiMarco, Appellate Case No. 2017-000734
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...do not require a party to use the exact name of a legal doctrine in order to preserve an issue for appellate review." Kosciusko v. Parham, 428 S.C. 481, 506, 836 S.E.2d 362, 375 (Ct. App. 2019) (quoting State v. Brannon, 388 S.C. 498, 502, 697 S.E.2d 593, 595 (2010)). "Instead, a litigant i......
  • Request a trial to view additional results
9 cases
  • Glinyanay v. Tobias, 5895
    • United States
    • Court of Appeals of South Carolina
    • February 23, 2022
    ...authority to determine the best interests of the children . . . ."). Accordingly, we reverse as to this issue. See Kosciusko v. Parham, 428 S.C. 481, 502, 836 S.E.2d 362, 373 (Ct. App. 2019); Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003); Stefan v. Stefan, 320 S.C.......
  • Glinyanay v. Tobias, Appellate Case No. 2019-001623
    • United States
    • Court of Appeals of South Carolina
    • February 23, 2022
    ...its authority to determine the best interests of the children ...."). Accordingly, we reverse as to this issue. See Kosciusko v. Parham , 428 S.C. 481, 502, 836 S.E.2d 362, 373 (Ct. App. 2019) ; Hardy v. Gunter , 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003) ; Stefan v. Stefan , 32......
  • Singh v. Singh, Appellate Case No. 2015-000434
    • United States
    • Court of Appeals of South Carolina
    • December 18, 2019
    ...subsequent orders superseded the orders challenged in those motions.6 However, in Kosciusko v. Parham , Op. No. 5690, ––– S.C.App. ––––, 836 S.E.2d 362, 2019 WL 5778083 (S.C. Ct. App. filed Nov. 6, 2019) (Shearouse Adv. Sh. No. 43 at 48, 52), we recently concluded the court rules and establ......
  • DiMarco v. DiMarco, Appellate Case No. 2017-000734
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...do not require a party to use the exact name of a legal doctrine in order to preserve an issue for appellate review." Kosciusko v. Parham, 428 S.C. 481, 506, 836 S.E.2d 362, 375 (Ct. App. 2019) (quoting State v. Brannon, 388 S.C. 498, 502, 697 S.E.2d 593, 595 (2010)). "Instead, a litigant i......
  • Request a trial to view additional results

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