Lawson v. Smith, Appellate Case No. 2016-000267

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Docket NumberUnpublished Opinion No. 2019-UP-215,Appellate Case No. 2016-000267
PartiesValerie Lawson, Appellant, v. Erin Michelle Smith, Respondent.
Decision Date12 June 2019

Valerie Lawson, Appellant,
Erin Michelle Smith, Respondent.

Appellate Case No. 2016-000267
Unpublished Opinion No. 2019-UP-215


Submitted October 1, 2018
June 12, 2019


Appeal From Spartanburg County
James F. Fraley, Jr., Family Court Judge


Donald Loren Smith, of Attorney Office of Donald Smith, of Anderson, for Appellant.

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of Spartanburg, for Respondent.

PER CURIAM: Valerie Lawson (Lawson) appeals the family court's order dismissing her request for a change in custody of her minor daughter (Child). Lawson argues the family court erred by failing to find (1) she was entitled to custody based on the factors outlined in Moore v. Moore, 300 S.C. 75, 386 S.E.2d

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456 (1989); (2) a substantial change of circumstances warranted a change of custody; (3) reunification was in the child's best interest; and (4) Erin Smith (Erin) in contempt of court for violating the terms of the parties' prior agreement. We reverse and remand.

Lawson had sole custody1 of Child until March 2012, when she signed a temporary "Limited Power of Attorney for Care of Minor Child(ren)" appointing "Robin/Erin Smith" as the attorney-in-fact for Child. However, only Robin Smith (Robin)2 signed the contract accepting "the duties, powers and responsibilities" of the power of attorney, and she notarized the contract under her former name, Robin Simmons. Robin was Lawson's counselor at the Department of Social Services (DSS) until she resigned from DSS in 2011. Erin, who is Robin's sister-in-law, was not present when the limited power of attorney was signed and she never spoke to Lawson about her relinquishment of custody. The limited power of attorney empowered the attorney-in-fact with responsibility over Child's health, education, and general welfare with an end date of September 2, 2012.

On May 21, 2012, Erin filed a complaint seeking custody of Child. In the 2014 order after the hearing on Erin's complaint, the court approved and incorporated an agreement entered into by Lawson and Erin. The agreement provided Erin had legal and physical custody of Child and defined Lawson's visitation and child support obligations. The agreement required Lawson to undergo a psychological evaluation, complete any of the evaluation's recommended treatments, and maintain stable housing and employment for ninety days before filing for a change of custody with the family court.

On September 10, 2014, Lawson filed a complaint seeking to modify custody, alleging Erin and Robin "knowingly conspired to gain custody of . . . [C]hild" by abusing both Robin's notary commission and her position as Lawson's DSS counselor. Lawson contended Erin was never a party to the limited power of attorney because she never signed it. She claimed Erin's name was fraudulently added as attorney-in-fact after she signed the contract and without her knowledge. The family court held a final hearing on Lawson's complaint on July 15, 2015. At the hearing, Lawson testified she "never agreed to give . . .[C]hild to Erin Smith."

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She stated she "agreed to give [C]hild to Robin Smith". Lawson explained that based on how the name was written on the limited power of attorney, she believed Robin's full name was "Robin Erin Smith." She testified Robin was the notary public, signing her name as Robin Simmons. She recalled neither the witnesses nor Erin were present at the signing of the limited power of attorney. Lawson explained that when she signed the limited power of attorney, she believed she was agreeing to give Robin the ability to take Child to the doctor so Lawson would not have to miss school.

Initially, during Lawson's direct and cross examination, the family court disallowed any testimony concerning the limited power of attorney and the circumstances surrounding Lawson's temporary relinquishment of custody. However, the family court subsequently decided the circumstances surrounding Lawson's relinquishment of custody were relevant and allowed Lawson's counsel to ask questions regarding this on redirect examination.

In its final order, filed August 11, 2015, the family court dismissed Lawson's request for change of custody and ordered the 2014 order remain in effect. The family court found Lawson "failed to meet her burden of proof to establish a substantial change of circumstances to warrant a change in custody." In her motion to reconsider pursuant to Rule 59(e), SCRCP, Lawson argued the family court erred by failing to consider the Moore factors. Further, Lawson argued the family court prevented her from making a proper record as it relates to the circumstances under which she temporarily relinquished her rights to custody. Thereafter, the family court filed an order on January 7, 2016, making findings according to the Moore factors. However, regarding the third Moore factor, the circumstances under which temporary relinquishment of Child's custody occurred, the family court found the 2014 order was "an agreement between the parties. The [family c]ourt previously found there were concerns at the time of removal of custody that [Lawson] was not taking . . . [C]hild to medical appointments." The family court further found that although it "acknowledge[d] . . . the Moore factors seem[ed] to weigh in favor of [Lawson,]" the 2014 order "set out specific circumstances that [Lawson] must accomplish prior to filing an action to regain custody." It denied Lawson's motion because it found Lawson failed to complete counseling, which the family court determined "to be a prerequisite to filing a new action under the 2014 [o]rder." This appeal followed.


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"In appeals from the family court, this [c]ourt reviews factual and legal issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "[W]hile this court has the authority to find facts in accordance with its own view of the preponderance of the evidence, 'we recognize the superior position of the family court judge in making credibility determinations.'" Lewis v. Lewis, 400 S.C. 354, 361, 734 S.E.2d 322, 325 (Ct. App. 2012) (quoting Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011)). "Further, de novo review does not relieve an appellant of his burden to 'demonstrate error in the family court's findings of fact.'" Id. (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at 655). "Consequently, the family court's factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court." Id. (quoting Lewis, 392 S.C. at 392, 709 S.E. 2d at 655) (alteration in original).



When a natural parent seeks to reclaim custody of his child after having temporarily relinquished custody to a third party, the following factors should be considered:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home. 2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party. 3) The circumstances under which temporary relinquishment occurred. 4) The degree of attachment between the child and the temporary custodian.

Moore, 300 S.C. at 79-80, 386 S.E.2d at 458 (internal citations omitted). "The question is not who has the most suitable home at the time of the hearing but whether circumstances 'overcome the presumption that a return of custody to the...

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