Rouvet v. Rouvet, No. 4701.

CourtCourt of Appeals of South Carolina
Writing for the CourtPIEPER, J
Citation696 S.E.2d 204,388 S.C. 301
Decision Date22 June 2010
Docket NumberNo. 4701.
PartiesLinda ROUVET, Appellant,v.Bernard-Steven C. ROUVET, Respondent.

388 S.C. 301
696 S.E.2d 204

Linda ROUVET, Appellant,
v.
Bernard-Steven C. ROUVET, Respondent.

No. 4701.

Court of Appeals of South Carolina.

Submitted April 1, 2010.
Decided June 22, 2010.


696 S.E.2d 205
James Frederick Berl of Hilton Head Island, for Appellant.

Bernard-Steven C. Rouvet, pro se, for Respondent.

PIEPER, J.

This appeal arises out of the denial of a Rule 60, SCRCP, motion for relief from judgment made by Appellant Linda Rouvet (Wife). Before the issuance of the judgment, Wife's attorney was suspended from the practice of law and Wife was evaluated for competency. We reverse and remand.1

BACKGROUND

Respondent Bernard-Steven C. Rouvet (Husband) and Wife were divorced in 1992; pursuant to an agreement incorporated into the divorce decree, Husband was required to provide health insurance for the parties' minor son. After issuance of the decree, Husband lost his job and consequently lost the insurance he had been providing for his son. The Clerk of Court issued a Rule to Show Cause in September 2002, based on Wife's pro se affidavit, and scheduled a hearing in November 2002. Wife did not appear at that hearing, although she did ask the Clerk to issue a second Rule to Show Cause on the same date of the hearing, based on a second pro se affidavit. In February 2003, the Honorable Jane D. Fender issued an order requiring Husband's attorney, Douglas W. MacNeille (MacNeille), and Wife to get together to discuss medical bills. Judge Fender also found Husband owed Wife one-half of all medical bills.

In April 2003, the Honorable Robert S. Armstrong heard arguments from the parties on Wife's third Rule to Show Cause. Attorney Robert L. Gailliard (Gailliard) made his first appearance on Wife's behalf and MacNeille represented Husband. Judge Armstrong issued an amended order in August 2003, finding Judge Fender had already ordered Husband to pay one-half of the medical expenses. The court further found Husband in contempt and ordered him to provide proof of insurance for the parties' son and to pay or make arrangements to pay the outstanding medical bills. Finally, the court directed Wife to execute a release so that Husband could communicate with medical providers regarding the child's medical conditions.

Thereafter, Wife's fourth Rule to Show Cause alleged Husband should be held in contempt for failure to comply with the prior orders of Judge Fender and Judge Armstrong. Judge Fender presided over the fourth Rule to Show Cause. Gailliard represented to the court that Wife was asking for reimbursement for the child's medical expenses, insurance premiums and deductibles, and attorney's fees. In response, MacNeille argued that some of the expenses Wife claimed had been paid by insurance and that she was not entitled to reimbursement for those amounts. MacNeille also claimed Wife owed Husband her share of the premium on the insurance obtained by Husband. Without taking testimony from either party or allowing the parties to present evidence, the judge ordered the parties to figure out how much each party owed to the other and to pay it within thirty days.

Judge Fender signed an order on March 2, 2004, declining to hold Husband in contempt (March Order). Judge Fender further ordered Gailliard and MacNeille to meet within thirty days to attempt to resolve the dispute; otherwise, each attorney was directed to submit a proposed order. Judge Fender retained

696 S.E.2d 206
jurisdiction, concluding that the matter would be rescheduled for a final hearing in the event the parties were unable to reach an agreement.

Gailliard faxed a letter to MacNeille in May 2004, asking for $12,834.85 for medical expenses incurred for the parties' son between 1993 and 2003. Gailliard enclosed a list of expenses incurred, along with Husband's portion of the expenses owed. On October 1, 2004, Wife sent a letter to Judge Fender, asking the court to intervene and to compel both attorneys to comply with the March Order. On December 17, 2004, MacNeille sent a letter and proposed order to Judge Fender. On January 5, 2005, Judge Fender signed Husband's proposed order, attaching nine exhibits, as a supplemental order (Supplemental Order) to the March Order. Wife did not appeal the Supplemental Order.

In the interim between the issuance of the March 2004 Order and the January 2005 Supplemental Order, several things occurred that are significant to the litigation. First, on October 25, 2004, Dr. L. Randolph Waid, a clinical psychologist at the Medical University of South Carolina, signed an affidavit, based in part upon a forensic evaluation by Dr. Pamela M. Crawford on January 15, 2004, regarding Wife's competency. Additionally, on November 24, 2004, a guardian ad litem was appointed to represent Wife in an unrelated civil case in circuit court in Charleston County.

Moreover, on October 27, 2004, between the issuance of the March Order and the Supplemental Order, Gailliard was first placed on an interim suspension and then placed on an indefinite suspension in January 2005; 2 as a result, another attorney was appointed to assume responsibility for Gailliard's files. After the February 2004 hearing before Judge Fender, Wife filed a new summons and complaint seeking increased child support. On December 7, 2004, approximately one month before the issuance of the Supplemental Order, the family court continued a hearing in the child support matter, specifying that the reason for the continuance was Gailliard's suspension. The record does not indicate whether Husband or MacNeille knew about the continuance in the other case. However, ten days after the continuance, MacNeille mailed a proposed order to Judge Fender with a copy to Gailliard. Wife was not copied on MacNeille's correspondence with the family court.

In March 2005, two months after the issuance of the Supplemental Order and a little less than six months after Wife's attorney had been suspended from the practice of law, Wife filed a pro se motion to appoint a guardian ad litem to protect her interests. In April 2005, Judge Fender heard Wife's pro se motion as well as Husband's motion to terminate child support. Wife filed an amended affidavit on the day of the hearing. Judge Fender denied Wife's motion, holding the family court was without jurisdiction to appoint a guardian because “jurisdiction properly lies with the Probate Court in the county where the party resides.” Further, Judge Fender encouraged Wife to obtain legal representation. The order also continued Husband's motion for thirty days. Wife filed a lengthy pro se motion, asking the court to reconsider its denial of her motion for the appointment of a guardian ad litem; however, the record does not indicate any disposition of this motion.

Judge Armstrong presided over the hearing on Husband's previously continued motion to terminate child support. Wife renewed her request to be appointed a guardian ad litem. Judge Armstrong specifically directed the Clerk of Court to appoint an attorney to appear on behalf of Wife and to act as her guardian ad litem. Subsequently, attorney Jaye Jones Elliott (Elliott), appointed as counsel and guardian ad litem for Wife, appeared at a hearing regarding Wife's competency. Judge Armstrong found Wife was not competent to represent her own interests, basing his finding on arguments of counsel and the affidavits from Dr. Waid and Dr. Crawford.

696 S.E.2d 207

Elliott filed a Rule 60 motion for relief from judgment on Wife's behalf. Elliott also filed a motion seeking the disqualification or recusal of Judge Fender, alleging that Judge Fender had represented Wife's estranged brother and his spouse when Judge Fender was in private practice. Further, Wife alleged Judge Fender had shown prejudice and/or bias against Wife, which allegedly resulted in decisions or statements that were not based upon information learned from Judge Fender's participation in the case. Judge Fender issued an order recusing herself from the case,...

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26 practice notes
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...is controlled by an error of law or whe[n] the order is based on factual findings that are without evidentiary support." Rouvet v. Rouvet, 388 S.C. 301, 308, 696 S.E.2d 204, 207 (Ct. App. 2010). "The decision to impose sanctions is one in equity, and thus the appellate court reviews the cir......
  • Nelson v. Nelson, Appellate Case No. 2017-000291
    • United States
    • Court of Appeals of South Carolina
    • August 21, 2019
    ...the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ " Rouvet v. Rouvet , 388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc. v. S.C. Dep't of Revenue , 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct.......
  • Johnson v. Johnson, 2018-UP-447
    • United States
    • Court of Appeals of South Carolina
    • December 5, 2018
    ...to move for a new trial under Rule 59(b); [or] (3) fraud, misrepresentation, or other misconduct of an adverse party"); Rouvet v. Rouvet, 388 S.C. 301, 309-10, 696 S.E.2d 204, 208 (Ct. App. 2010) ("Generally, 'the neglect of the attorney is the neglect of the client, and . . . no mistake, i......
  • Oulla v. Velazques, Appellate Case No. 2017-000052
    • United States
    • Court of Appeals of South Carolina
    • July 24, 2019
    ...the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ " Rouvet v. Rouvet , 388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc. v. S.C. Dep't of Revenue , 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct.......
  • Request a trial to view additional results
26 cases
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...is controlled by an error of law or whe[n] the order is based on factual findings that are without evidentiary support." Rouvet v. Rouvet, 388 S.C. 301, 308, 696 S.E.2d 204, 207 (Ct. App. 2010). "The decision to impose sanctions is one in equity, and thus the appellate court reviews the cir......
  • Nelson v. Nelson, Appellate Case No. 2017-000291
    • United States
    • Court of Appeals of South Carolina
    • August 21, 2019
    ...the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ " Rouvet v. Rouvet , 388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc. v. S.C. Dep't of Revenue , 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct.......
  • Johnson v. Johnson, 2018-UP-447
    • United States
    • Court of Appeals of South Carolina
    • December 5, 2018
    ...to move for a new trial under Rule 59(b); [or] (3) fraud, misrepresentation, or other misconduct of an adverse party"); Rouvet v. Rouvet, 388 S.C. 301, 309-10, 696 S.E.2d 204, 208 (Ct. App. 2010) ("Generally, 'the neglect of the attorney is the neglect of the client, and . . . no mistake, i......
  • Oulla v. Velazques, Appellate Case No. 2017-000052
    • United States
    • Court of Appeals of South Carolina
    • July 24, 2019
    ...the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ " Rouvet v. Rouvet , 388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc. v. S.C. Dep't of Revenue , 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct.......
  • Request a trial to view additional results

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