Mr. T v. Ms. T

• Decision Date: 15 April 2008
• Docket Number: No. 4369.,4369.
• Citation: 378 S.C. 127,662 S.E.2d 413
• Court: South Carolina Court of Appeals
• Parties: MR. T, Appellant, v. MS. T and Michael Alston, Respondents. In re S.N.T and D.T.T.

662 S.E.2d 413

378 S.C. 127

MR. T, Appellant, v. MS. T and Michael Alston, Respondents In re S.N.T and D.T.T.

No. 4369.

Court of Appeals of South Carolina.

Heard January 8, 2008.

Decided April 15, 2008.

Rehearing Denied June 26, 2008.

Richard C. Jones and Patrick M. Killen, both of Sumter, for Appellant.

Michael Alston, of Washington, and Ryan Alexander McLeod, of Sumter, for Respondent.

PIEPER, J.

Mr. T appeals the family court's dismissal of his complaint to set aside a prior child support order and to determine paternity of two children born during his marriage with Ms. T.¹ We reverse and remand for an evidentiary hearing and development of the record on the matter.

FACTS

The appellant, Mr. T, and the respondent, Ms. T, were married on May 9, 1986 in South Carolina. Subsequently Mr. T filed a complaint with the Sumter County Family Court seeking a divorce from Ms. T and seeking joint, legal custody of the parties' minor children. In paragraph five (5) of Mr. T's complaint, he alleged that "two children have been born of this marriage." In paragraph six (6) of his complaint, Mr. T alleged that he was entitled to joint, legal custody of the children. Ms. T then filed an answer and counterclaim admitting the allegations contained in paragraph five (5) of Mr. T's complaint and denying that he was entitled to joint, legal custody of their children.

The parties subsequently entered into an agreement which was placed in the record. The agreement specified that the parties agreed that Ms. T would have sole custody of the parties' two minor children. The agreement of the parties provided for reasonable and liberal visitation by Mr. T and it also provided for the payment of child support by Mr. T. He agreed to pay child support for the children in the amount of $1,219.69 each month.

The parties submitted their agreement to the Sumter County Family Court for approval and the court approved their agreement. The couple was divorced by Final Divorce Decree filed on October 18, 1999, which specifically set forth and incorporated the parties' agreement. Pursuant to that decree, the court specifically found that "[t]wo children have been born of this marriage." No appeal was taken from this order.

Mr. T filed the present lawsuit alleging that from the time of the birth of the children, through the time of the divorce and until recent months, he was under the false and mistaken belief that these children were his biological children. Mr. T also alleged that during a summer visit in 2005, he noticed that his son's physical appearance was similar to that of a man by the name of Michael Alston (Alston). Respondent Alston was named as a party to the present lawsuit. Mr. T also attached to his original complaint a DNA paternity test suggesting that he was not the biological parent of the children.

At the temporary hearing on March 10, 2006, counsel for Ms. T asked the court to continue the matter or to dismiss the complaint based on the court's lack of in personam jurisdiction over her and the court's lack of subject matter jurisdiction based on res judicata/collateral estoppel grounds. Alston also joined in the relief requested by Ms. T alleging he was a resident of Washington D.C. The Honorable W. Jeffery Young took Ms. T's motion to dismiss under advisement and allowed the parties thirty (30) days within which to prepare and submit briefs to the court regarding Ms. T's oral motion to dismiss.

On March 22, 2006, Mr. T amended his pleadings to allege fraud on the part of Ms. T. She then filed her answer and counterclaim to the amended complaint on April 19, 2006. In her answer and counterclaim, Ms. T objected to the court considering the paternity test which was attached to Mr. T's pleadings.

Thereafter, the court issued its order dismissing the complaint with prejudice based upon the prior divorce decree stating that there was "a clear finding of paternity" and the court lacked subject matter jurisdiction based on res judicata/collateral estoppel. The court's order of dismissal was filed on June 1, 2006. Pursuant to a motion for reconsideration, a hearing was held on September 6, 2006; that motion was denied.²

On September 28, 2006, Mr. T filed his Notice of Appeal. The appeal was dismissed on November 9, 2006 and was reinstated on December 21, 2006. On or about March 1, 2006, Mr. T filed a Motion to Argue against Precedent with this court which was subsequently denied.³

STANDARD OF REVIEW

In appeals from the family court, the appellate court has the authority to correct errors of law and to find facts in accordance with its own view of the preponderance of the evidence. Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Miller v. Miller, 299 S.C. 307, 311, 384 S.E.2d 715, 717 (1989). However, this broad scope of review does not require this court to disregard the family court's findings. Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149-50 (Ct. App.2005). The issue presented on appeal is purely a question of law.

LAW/ANALYSIS

Mr. T claims that the family court erred in granting the respondents' motion to dismiss for lack of subject matter jurisdiction based on res judicata/collateral estoppel grounds. The procedural posture of this case is critical to this court's analysis. Mr. T has filed an independent action challenging the original decree on various grounds. The first cause of action in Mr. T's amended complaint brings the underlying paternity action pursuant to S.C.Code Ann. § 20-7-952 (1985). In his second cause of action, he seeks relief on the ground that prospective enforcement of the existing decree would be inequitable and it should therefore be set aside pursuant to Rule 60(b)(5), SCRCP. Finally, in his third cause of action, he seeks relief generally under Rule 60(b) which the court may liberally construe as either a motion or an independent action.⁴ Some of the causes of action suggest more than one ground of relief but throughout his pleading, he asserts various allegations of inequity and fraud or misrepresentation. In any event, where the interests of minors or incompetents are involved, "[p]rocedural rules are subservient to the court's duty to zealously guard the rights of minors. Where the rights and best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties." S.C. Dept. of Soc. Servs., v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172 (Ct.App. 2006) (citations omitted).

The family court judge found that the original divorce decree made a clear finding of paternity. The court cites to paragraph four of the divorce decree which states that "[t]wo children have been born to this marriage." The family court judge then concluded that the court "has no jurisdiction since the action is barred by res judicata/collateral estoppel."

However, the application of res judicata and collateral estoppel principles are not matters of subject matter jurisdiction. Subject matter jurisdiction refers to a court's power to hear and determine cases of the general class or category to which proceedings in question belong. Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) (citation omitted). Preclusive concepts such as res judicata and collateral estoppel are not jurisdictional matters. Weston v. Margaret J. Weston Med. Ctr., 2007 WL 2750216 at *4 n. 6 (D.S.C. Sept.20, 2007) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). While the family court order referenced jurisdiction, we believe the further reference to preclusion principles suggests the court dismissed the case under Rule 12(b)(6), SCRCP.

In doing so, the family court judge relied on the factual similarities between the case at hand and this court's decision in Mr. G v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101 (Ct. App.1995). However, the case at hand is procedurally distinguishable from Mr. G. Here, Mr. T not only filed an independent action challenging the original decree, but also specifically seeks relief under Rule 60(b)(5); in Mr. G, the court specifically noted that the family court never ruled on the Rule 60(b)(5) issue and declined to consider it on appeal. Accordingly, sitting as a panel, we do not need to reconsider the precedent set by Mr. G in order to determine this appeal.⁵

Notwithstanding the intrinsic/extrinsic fraud analysis of Mr. G, the presence of extrinsic fraud is not the only mechanism by which a prior judgment can be set aside. Rule 60(b), SCRCP states, in part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud, misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, "or" to set aside a judgment for fraud upon the court. During the pendency of an appeal, leave to make the motion must be obtained from the appellate court. Writs of coram nobis, coram vobis, audita querela, and bills of...