Russell v. Cox
| Decision Date | 27 April 2009 |
| Docket Number | No. 4535.,4535. |
| Citation | 678 S.E.2d 460,383 S.C. 215 |
| Court | South Carolina Court of Appeals |
| Parties | Valerie RUSSELL, f/k/a Valerie Cox, Appellant, v. Alan Lee COX, Respondent. |
Thomas F. Allgood, Jr., of Augusta, for Appellant.
Vicki J. Snelgrove, of Aiken, for Respondent.
Valerie Russell, f/k/a Valerie Cox (Mother), appeals the family court's dismissal of her action to register and modify a foreign divorce and custody order. We affirm.1
Mother and Alan Lee Cox (Father) are the parents of a daughter (Child) born March 3, 2004, and were divorced in Glynn County, Georgia, on February 28, 2006. Pursuant to the final judgment and decree, Father received sole custody of Child. Mother was ordered to pay child support and received strictly supervised visitation. The visitation was to take place the second Saturday and Sunday of each month for three hours on each day at a location in North Augusta, South Carolina, as designated by Father. Furthermore, as noted in the decree, Father was a full-time medical student residing in North Augusta at the time of the divorce.
After the divorce, Mother moved from Georgia to Florida and married her current spouse on February 29, 2008. On March 23, 2008, Mother brought this action in the Aiken County Family Court seeking registration in South Carolina of the Georgia divorce decree and custody order and modification of the custody and visitation provisions of the order. In her complaint, Mother asserted she currently resided in Florida, Father resided in South Carolina, and Child resided with Father's parents, who lived in Aiken County, South Carolina. Mother sought custody of Child and, in the alternative, removal of the supervision restrictions on her visitation privileges.
On April 9, 2008, Father answered and counterclaimed, requesting among other relief that the action be dismissed because "[t]he child and parents still have significant connections with the State of Georgia and substantial evidence relating to the child's care, protection, training and personal relationships are in the State of Georgia."
The family court held a hearing in the matter on April 15, 2008. By order dated May 7, 2008, and filed May 8, 2008, the family court denied Mother's motion for registration and modification of the Georgia order and granted Father's motion to dismiss the action. Mother appeals.
Mother first argues the family court, in declining to exercise jurisdiction over this matter, placed undue emphasis on evidence that Father was domiciled in Georgia and improperly ignored evidence that Father and Child now resided in South Carolina. We agree with Mother that Father's domicile was not relevant to a determination of jurisdiction; however, we uphold the family court's dismissal of this action based on its finding that Father has remained a resident of Georgia.
Under the Uniform Child Custody Jurisdiction and Enforcement Act (the Act), which took effect in this State on June 8, 2007, a South Carolina family court, except in certain situations not applicable here, may not modify a custody order issued by a court of another state unless a court of this State has jurisdiction to make an initial custody determination under the Act and (1) the court of the issuing state determines either that it no longer has continuing jurisdiction or that a court of this State would be a more convenient forum; or (2) either a South Carolina court or a court of the issuing state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the issuing state. S.C.Code Ann. § 63-15-334 (formerly S.C.Code Ann. § 20-7-6034) (Supp.2007 and 2008).2
There appears to be no dispute in the present case that a South Carolina family court could exercise jurisdiction to make an initial custody determination. Both Father and Child have continuously resided in South Carolina for several years preceding the filing of this lawsuit. Furthermore, there is no indication in the record before us that a Georgia court has ruled whether or not Georgia has continuing jurisdiction over the matter, whether or not South Carolina would be a more convenient forum, or whether or not anyone connected with the matter presently resides in Georgia. The only question here is whether the South Carolina family court correctly found that Father, notwithstanding significant evidence that he currently resided in South Carolina, was still a resident of Georgia as well. We hold the family court's determination was correct.3
Cook v. Fed. Ins. Co., 263 S.C. 575, 582, 211 S.E.2d 881, 884 (1975). Although there are no cases as yet from this jurisdiction that expressly define the phrase "presently reside" as that language is used in the Act, we do not believe the legislature intended that this term apply only to those situations in which all parties to the dispute are physically present within the borders of the state whose jurisdiction is at issue. See S.C.Code Ann. § 63-15-330(C) (formerly S.C.Code Ann. § 20-7-6030(C)) (Supp.2007 and 2008) ("Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.").
Based on our review of the record, we hold there is sufficient evidence to support the family court's determination that Father has remained a resident of Georgia during this litigation. He owns real estate in Georgia, where he is also registered to vote. Furthermore, he continues to hold a Georgia driver's license, is paid by the United States Defense and Accounting Office as a Georgia resident, and files his income taxes listing Georgia as his state of residence. In addition, as evidenced by a statement from the registrar of the Medical College of Georgia, Father is enrolled as a full-time student and expects to receive his Doctor of Medicine degree on May 8, 2009. Also significant is the fact that, although on his student loan application Father stated his "permanent city" was North Augusta, South Carolina, he listed Georgia as his state of legal residence.
Finally, we are mindful of the long-standing deference courts of this State have "given to the jurisdiction of the state that initially rules on a custody matter." Widdicombe v. Tucker-Cales, 366 S.C. 75, 87, 620 S.E.2d 333, 339-40 (Ct.App.2005), ...
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Delgado v. Combs, A11A1948.
...inter alia, that “both parents admitted in the Florida action that they and the child resided in Florida”); Russell v. Cox, 383 S.C. 215, 678 S.E.2d 460, 462–63 (2009) (holding that South Carolina court, notwithstanding evidence that father and mother both resided in South Carolina, properl......
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S.C. Dep't of Soc. Servs. v. Tran
...South Carolina courts defer "to the jurisdiction of the state that initially rules on a custody matter." Russell v. Cox , 383 S.C. 215, 219, 678 S.E.2d 460, 462–63 (Ct. App. 2009) (quoting Widdicombe v. Tucker–Cales , 366 S.C. 75, 87, 620 S.E.2d 333, 339–40 (Ct. App. 2005), vacated in part ......
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Anthony H. v. Matthew G.
...full faith and credit to the Georgia custody decree because it was rendered in accordance with the PKPA. See Russell v. Cox, 383 S.C. 215, 219, 678 S.E.2d 460, 462–63 (Ct.App.2009) (stating South Carolina has always given deference “to the jurisdiction of the state that initially rules on a......
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Brandt v. Brandt
...there, he continued to “presently reside” there. Id. Thus, California (the issuing state) retained jurisdiction. Id. ¶ 42 Similarly, in Russell v. Cox, a South Carolina court was tasked with determining whether South Carolina had jurisdiction to modify a Georgia custody decree where the mot......