McCoy v. McCoy, 22184

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

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 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. 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 her attorney objected to the inadequacy of notice. Constitutional objections cannot be raised for the first time on appeal. Bobo Brothers, Inc. v. S.C. Tax Commission, 271 S.C. 18, 244 S.E.2d 519 (1978).

Finally appellant alleges the evidence was insufficient to support the change of custody. We disagree.

In all child custody controversies the controlling consideration is what is in the best interest of the child. In order to change custody there must be a showing of changed conditions since the...

To continue reading

Request your trial
7 cases
  • Charest v. Charest
    • United States
    • South Carolina Court of Appeals
    • 22 Diciembre 1997
    ...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. Retail C......
  • Sealy v. Sealy, 1144
    • United States
    • South Carolina Court of Appeals
    • 22 Marzo 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, 2172
    • United States
    • South Carolina Court of Appeals
    • 25 Abril 1994
    ...all child custody controversies, however, the controlling consideration is what is in the best interest of the child. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984). The education of a child is something that affects his best interest. In fact, in today's society education is often the......
  • Peterson Outdoor Advertising Corp. v. Beaufort County
    • United States
    • South Carolina Supreme Court
    • 6 Enero 1987
    ...this appeal. A case is moot when judgment, if rendered, will have no practical effect upon the existing controversy. McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d 517 (1984). The general rule is that the repeal or amendment of a zoning ordinance during an appeal renders the appeal moot. Moncla v......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT