Mann v. Walker

Decision Date20 February 1985
Docket NumberNo. 0429,0429
Citation328 S.E.2d 659,285 S.C. 194
CourtSouth Carolina Court of Appeals
PartiesFloyd W. MANN and Murlene W. Mann, Appellants, v. Debra Lynn M. WALKER, Steve Jones, and Shannon Lee Jones, a minor under the age of fourteen (14) years, Respondents. . Heard

W. Newton Pough, Orangeburg, for appellants.

Marty S. McGee, Bryant, Fanning & Yarborough, of Orangeburg, for respondents.

Samuel F. Reid, Jr., Orangeburg, guardian ad litem.

SANDERS, Chief Judge:

Appellants Floyd and Murlene Mann appeal from two orders of the Family Court. One vacated a default judgment ordering the adoption of a minor child, and the other returned custody of the child to her natural mother, respondent Debra Lynn Walker. We affirm.

This action was initiated by the Manns who sought to adopt the child. The child's natural father was served but did not answer or otherwise participate in the case. Ms. Walker was also served but she did not file a timely answer. After a hearing, Family Court Judge Maxey Watson ordered adoption of the child by the Manns. Upon learning that the Manns had adopted the child, Ms. Walker immediately retained counsel who moved the court for an order of relief from the default judgment pursuant to Section 15-27-130 of the 1976 Code of Laws of South Carolina. The matter was heard by Family Court Judge Alvin Biggs who vacated the default judgment and allowed Ms. Walker to answer. Judge Biggs then heard the case on its merits and returned custody of the child to Ms. Walker.

The undisputed facts in this case are as follows. The child was born to Ms. Walker on August 9, 1979 in Arkansas. After Ms. Walker and the child arrived in South Carolina, they lived with the Manns. Mr. Mann is Ms. Walker's father and Ms. Mann is her stepmother. In September 1980 Ms. Walker left the Manns' home after Mr. Mann beat her with a belt. In October 1980, the parties executed an agreement in which they agreed that custody of the child would be transferred to the Manns until Ms. Walker could "provide a good and suitable home and care for and educate said child." The agreement also provided that "if ... [Ms. Walker] desires that the child be adopted, she does agree that the ... [Manns] will have the right to adopt said child" and that in any adoption proceeding following her death "this instrument shall be introduced ... to verify the agreement of said adoption."

Since moving to this state Ms. Walker has had a series of low paying jobs but since February 1982 she has been employed at a textile mill where she earns sufficient wages to afford a new apartment, furniture and a car. When the Manns had custody of the child, both of them were employed and while they worked, the child was cared for by Virginia Mann, Mr. Mann's sister-in-law and Ms. Walker's aunt. Virginia Mann testified on behalf of Ms. Walker and indicated that Ms. Walker had made arrangements with her to continue babysitting for the child should she regain custody of the child. From the time of the custody agreement until the decision of the Family Court, Ms. Walker provided the child with some clothing and visited her at both Virginia Mann's home and the home of her father and stepmother. The child has been in Ms. Walker's custody since October 1982.

The Manns first argue that Judge Biggs was without authority to vacate the default judgment ordered by Judge Watson. We reject this argument.

Ordinarily, one trial judge cannot set aside an order of another. National Bank of South Carolina v. Smotts, 280 S.C. 126, 128, 311 S.E.2d 98, 99 (S.C.App.1984). However, this principle is inapplicable under the circumstances here. The threshold questions decided by the two judges were different. Judge Watson decided Ms. Walker was in default because of her failure to answer. Judge Biggs decided that even though she was in default, her failure to answer was excusable because of facts not considered by Judge Watson. There is no indication Ms. Walker attempted to direct the case to Judge Biggs and away from Judge Watson, who initially ordered the default judgment. Instead, the opposite appears true. Upon learning that the default judgment had been ordered, Ms. Walker properly filed her motion for relief, not with Judge Biggs, but with the Family Court. Judge Watson, as the chief family court judge presiding in the circuit at the time, then assigned the case to Judge Biggs pursuant to his authority provided by Section 20-7-1400 of the 1976 Code of Laws of South Carolina. Moreover, it does not appear that the Manns ever objected to Judge Biggs' hearing the motion when it was before him. This court will not grant relief on an alleged error asserted for the first time on appeal. Powers v. City of Aiken, 255 S.C. 115, 177 S.E.2d 370 (1970). See Butler v. Sea Pines Plantation Co., 282 S.C. 113, 317 S.E.2d 464, 470 (S.C.App.1984).

The Manns next argue that Judge Biggs erred in granting Ms. Walker's motion even if he had authority to do so. We also reject this argument.

Section 15-27-130 provides that the court may relieve a party from a judgment taken through excusable neglect. This section is liberally construed to see that justice is promoted and to strive for disposition of cases on their merits. Em-Co Metal Products, Inc. v. Great Atlantic & Pacific Tea Co., 280 S.C. 107, 109, 311 S.E.2d 83, 85 (S.C.App.1984). A party seeking relief under this section must show (1) mistake, inadvertence, surprise or excusable neglect, and (2) the existence of a meritorious defense. Commercial Credit Corporation v. Knight, 272 S.C. 435, 248 S.E.2d 589 (1978). An order of the trial judge issued pursuant to this section will not be disturbed absent a clear showing of abuse of discretion. Em-Co Metal Products, Inc. v. Great Atlantic & Pacific Tea Co., 280 S.C. 107, 110, 311 S.E.2d 83, 85 (S.C.App.1984).

Judge Biggs found Ms. Walker's failure to answer was excusable because she was misled by the agreement which she had with the Manns into believing that no adoption would be ordered unless she consented. He further found Ms. Walker had a meritorious defense to the action since there had been no consent to the adoption of the child as required by Section 20-7-1710 of the 1976 Code of Laws of South Carolina, as amended. Based on these findings, Judge Biggs relieved Ms. Walker from the default judgment. In our opinion, he did not abuse his discretion in doing so.

The Manns next argue that Judge Biggs should have required Ms. Walker to serve her answer on the child's natural father before proceeding to hear the case on its merits. We...

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