McCoy v. McCoy, No. 22184

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS; LITTLEJOHN
Citation323 S.E.2d 517,283 S.C. 383
PartiesJimmy Wesley McCOY, Respondent, v. Ramona Ellen McCOY, a/k/a Ramona Ellen Cole a/k/a Ramona Ellen Yarborough, Appellant. . Heard
Docket NumberNo. 22184
Decision Date16 October 1984

Page 517

323 S.E.2d 517
283 S.C. 383
Jimmy Wesley McCOY, Respondent,
v.
Ramona Ellen McCOY, a/k/a Ramona Ellen Cole a/k/a Ramona
Ellen Yarborough, Appellant.
No. 22184.
Supreme Court of South Carolina.
Heard Oct. 16, 1984.
Decided Nov. 13, 1984.

Page 518

[283 S.C. 385] Rex K. Pratt, of Baxley, Pratt & Wells, P.A., Ridgeway, for appellant.

Kenneth G. Goode, Winnsboro; and Thomas H. Ketchin, III, as GAL, Winnsboro, for respondent.

NESS, Justice:

In this domestic action husband seeks custody of his daughter. The family court judge granted a change of custody from the wife to the husband. We affirm.

Husband alleged his circumstances had changed for the better and the wife's had changed for the worse since the divorce decree. The judge ordered the Department of Social Services to perform home studies but before the maternal home study was accomplished, the wife moved to Florida with the child.

While the wife and child were living in Florida, the husband had an ex parte communication with the court alleging abuse and neglect of the child by the wife. The judge ex parte granted DSS temporary custody based solely on the husband's allegations, and ordered DSS to draw a petition in support of his order, without any independent investigation. When the wife returned from Florida, DSS took the child.

Wife first argues the judge abused his discretion in issuing an ex parte order granting temporary custody to DSS. We agree. Ex parte orders are condemned by this Court except when justified by exigent circumstances. Dunnavant v. Dunnavant, 278 S.C. 445, 298 S.E.2d 442 (1982); McSwain v. Holmes, 269 S.C. 293, 237 S.E.2d 363 (1977). We are further appalled the Court would order and DSS would take

Page 519

a child into their custody without first making an independent investigation.

Nonetheless, though there was an abuse of discretion, we hold the fact that custody was subsequently changed from wife to husband renders this temporary order no longer effective and therefore moot. Gainey v. [283 S.C. 386] Gainey, 279 S.C. 68, 301 S.E.2d 763 (1983). "A case becomes moot when judgment, if rendered, will have no practical legal effect upon existing controversy." Mathis v. The South Carolina State Highway Department, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973).

Appellant next contends consolidating the cases violated her right to procedural due process because she had no notice the husband's change of custody petition was to be heard.

Neither the wife nor...

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9 practice notes
  • Charest v. Charest, No. 2773
    • United States
    • Court of Appeals of South Carolina
    • December 22, 1997
    ...noted in its order, ex parte orders are viewed with disfavor and should be issued only upon exigent circumstances. See McCoy v. McCoy, 283 S.C. 383, 385, 323 S.E.2d 517, 518 (1984) ("Ex parte orders are condemned by this Court except when justified by exigent circumstances."); Herring v. Re......
  • Sealy v. Sealy, No. 1144
    • United States
    • Court of Appeals of South Carolina
    • March 22, 1988
    ...272 S.C. 273, 252 S.E.2d 32 (1979). Such changed conditions must have occurred since the decree awarding custody. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984). Although this court's scope of review in child custody determinations allows us to find the facts in accordance with our vie......
  • Glanton v. Glanton, No. 2172
    • United States
    • Court of Appeals of South Carolina
    • April 25, 1994
    ...child custody controversies, however, the controlling consideration is what is Page 812 in the best interest of the child. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 The education of a child is something that affects his best interest. In fact, in today's society education is often the de......
  • State v. Keesee, No. 2707
    • United States
    • Court of Appeals of South Carolina
    • June 3, 1997
    ...311 S.C. 162, 167, 427 S.E.2d 909, 912 (Ct.App.1993) ("An issue not raised at trial is waived on appeal."); see also McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984) (Procedural bar of error preservation applies equally to constitutional 1 All of the sections of Article I & III of the hu......
  • Request a trial to view additional results
9 cases
  • Charest v. Charest, No. 2773
    • United States
    • Court of Appeals of South Carolina
    • December 22, 1997
    ...noted in its order, ex parte orders are viewed with disfavor and should be issued only upon exigent circumstances. See McCoy v. McCoy, 283 S.C. 383, 385, 323 S.E.2d 517, 518 (1984) ("Ex parte orders are condemned by this Court except when justified by exigent circumstances."); Herring v. Re......
  • Sealy v. Sealy, No. 1144
    • United States
    • Court of Appeals of South Carolina
    • March 22, 1988
    ...272 S.C. 273, 252 S.E.2d 32 (1979). Such changed conditions must have occurred since the decree awarding custody. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984). Although this court's scope of review in child custody determinations allows us to find the facts in accordance with our vie......
  • Glanton v. Glanton, No. 2172
    • United States
    • Court of Appeals of South Carolina
    • April 25, 1994
    ...child custody controversies, however, the controlling consideration is what is Page 812 in the best interest of the child. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 The education of a child is something that affects his best interest. In fact, in today's society education is often the de......
  • State v. Keesee, No. 2707
    • United States
    • Court of Appeals of South Carolina
    • June 3, 1997
    ...311 S.C. 162, 167, 427 S.E.2d 909, 912 (Ct.App.1993) ("An issue not raised at trial is waived on appeal."); see also McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984) (Procedural bar of error preservation applies equally to constitutional 1 All of the sections of Article I & III of the hu......
  • Request a trial to view additional results

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