Oehler v. Clinton

• Decision Date: 04 April 1984
• Docket Number: No. 22124,22124
• Court: South Carolina Supreme Court
• Parties: Ex Parte J. Mack OEHLER and Jackie Oehler, Respondents, v. Brenda (Oehler) CLINTON, Appellant. In Re Brenda (Oehler) CLINTON v. Jay Mack OEHLER and Jackie Oehler. . Heard

Page 445

317 S.E.2d 445

282 S.C. 25

Ex Parte J. Mack OEHLER and Jackie Oehler, Respondents, v. Brenda (Oehler) CLINTON, Appellant.

In Re Brenda (Oehler) CLINTON v. Jay Mack OEHLER and Jackie Oehler.

No. 22124.

Supreme Court of South Carolina.

Heard April 4, 1984.

Decided June 6, 1984.

Samuel B. Fewell and Charles W. Blackwell, Rock Hill, for appellant.

Stephen R. McCrae, Jr., York, for respondents.

NESS, Justice:

This is a child custody case. Appellant, Brenda (Oehler) Clinton, mother, contends the trial court erroneously relied on S.C.Code § 20-7-796(a) (1983 Supp.) of the Uniform Child Custody Jurisdiction Act in declining to exercise jurisdiction to entertain her custody action against respondents, Jay Mack and Jackie Oehler, the child's paternal grandparents. We disagree and affirm.

In October 1976, appellant and Carl M. Oehler were divorced pursuant to an order of the North Carolina District Court. In a subsequent action, Carl Oehler was granted permanent custody of the couple's minor child.

On December 26, 1980, while the child was visiting the mother, who had since moved to South Carolina, Carl Oehler committed suicide. The grandparents immediately requested and were granted temporary custody of the child by order of the North Carolina District Court. Ignoring this order, the mother retained custody of the child and, on December 30, 1980, petitioned the York County (South Carolina) Family Court for an order granting her temporary custody. After a hearing on the matter, the trial court granted the mother custody of the child pendente lite.

In February 1981, after conducting a hearing on the merits, which the mother failed to attend, the North Carolina District Court granted permanent custody to the grandparents. Despite receiving notice of this order, the mother continued to refuse to relinquish custody of the child, apparently moving several times to avoid the grandparents' attempts to regain custody.

Finally, in September 1981, pursuant to the Uniform Child Custody Jurisdiction Act, now codified as S.C.Code Ann. § 20-7-782, et seq. (1983 Supp.), the grandparents sought enforcement of the February 1981 custody order by the York County Family Court, which, after declining to exercise jurisdiction over the mother's custody action, ordered her to return the child to respondent grandparents.

The mother first argues the trial court erred in relying on the Uniform Child Custody Act, as the Act did not become effective until after the commencement of this action. We disagree.

"In the construction of statutes, there is a presumption that statutory enactments are to be considered prospective rather than retroactive in their operation unless" the statutes are remedial or procedural in nature. Hercules, Inc. v. The South Carolina Tax Commission, et al., 274 S.C. 137, 143, 262 S.E.2d 45, 48 (1980). At oral argument the mother conceded that this legislation is procedural in nature. Consequently, we hold the trial court properly relied on the Act in declining to exercise jurisdiction.

The mother also maintains the trial court erred in refusing to consider her custody action on the merits, claiming South Carolina is the more convenient forum for the determination of the custody issue. We disagree.

S.C.Code Ann. § 20-7-796(a) states:

A court which has jurisdiction under this subarticle to make an initial or modification decree may decline to exercise its jurisdiction anytime before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

In his order, the trial judge specifically determined South Carolina to be an inconvenient forum, finding: (1) the State of North Carolina had a closer connection with the child, respondents, and appellant; (2) the substantial evidence concerning the child's present or future care, protection, training, and personal relationships was more readily available in North Carolina; and (3) the exercise of jurisdiction by the York County Family Court would foster jurisdictional competition with the North Carolina District Court and encourage a continuing controversy over and possible relitigation of the child support issue, to the detriment of the child.

Although the North Carolina District Court order of February 1981 recognized the possible existence of jurisdiction in both North and South Carolina, we feel the trial court's decision to decline jurisdiction was justified, and hold there was no abuse of the discretion granted to the court by § 20-7-796(a).

During oral arguments, the mother's counsel raised the issue as to whether custody of the child automatically reverted to her upon the father's death. We feel any discussion of this issue was improper, as the mother failed to address this question in either her exceptions or brief. Smart v. Charleston Mobile Homes, Inc., 269 S.C. 588, 239 S.E.2d 78 (1977). Nevertheless, we find that even if exception had been taken, the mother's arguments are without merit.

Generally, when a custodial parent dies, the right to custody automatically reverts to the surviving parent. Derby v. Kim, 238 Ga. 429, 233 S.E.2d 156 (1977); Comer v. Comer, 61 N.C.App. 324, 300 S.E.2d 457 (1983). This right is not absolute, however, as a surviving parent may be denied custody where she is shown to be presently unfit or "the interests and welfare of the [child] clearly require" alternative custodial supervision. Comer, 300 S.E.2d at 459.

The record provides ample support for the North Carolina District Court's conclusion that the best interests of the child demanded a transfer of custody to the grandparents at the father's death. Clearly, the extreme emotional instability exhibited by the mother subsequent to her divorce from the father, as evidenced by her inability to retain employment, her frequent changes of residence and innumerable illicit sexual affairs, could only prove to be detrimental to the physical and emotional development of the child. Consequently, we find the North Carolina District Court properly awarded temporary custody to the grandparents upon the father's death, and final custody after a hearing on the merits.

AFFIRMED.

HARWELL, J., and J. WOODROW LEWIS, as Acting Associate Justice, concur.

LITTLEJOHN, Chief Judge (dissenting):

I respectfully dissent and would reverse the order of the Family Court judge.

Beyond debate, it is appropriate under some circumstances to grant custody of children to grandparents. Conceivably, this may be the proper ultimate determination of the case. Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612.

In my view, the North Carolina Court was patently without authority to issue any order after the death of the father of the child. When the father died on December 27, 1980, the litigation between him and his wife, a resident of South Carolina, died also. At that time, both the mother and the child were physically present and domiciled in South Carolina. Under Section 21-21-10 of the South Carolina Code 1976 (Cum.Sup.) parents are joint guardians of minor children. It reads in part as follows:

The mother and father are the joint guardians of their minor children and are equally charged with their welfare and education and the care and management of their estates and the mother and father shall have equal power, rights and duties and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor or any other matter affecting the minor.

When the father died, the mother not only had the right but also the duty to assume...