South Carolina Dep't of Soc. Serv. v. Polite, 4774.

• Citation: 391 S.C. 275,705 S.E.2d 78
• Decision Date: 19 January 2011
• Docket Number: No. 4774.,4774.
• Court: Court of Appeals of South Carolina
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Appellant,v.Donellivin POLITE, Respondent.

391 S.C. 275

705 S.E.2d 78

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Appellant,

v.Donellivin POLITE, Respondent.

No. 4774.

Court of Appeals of South Carolina.

Submitted April 1, 2010.Decided Jan. 19, 2011.

Paul Fredrick LeBarron, of Charleston, for Appellant.Donellivin Polite, pro se, for Respondent.WILLIAMS, J.

Donellivin Polite sought modification of his child support payments when one of his three children reached the age of majority. After the parents agreed to a reduced amount of support for the remaining children, the family court ordered the support be retroactively reduced to a date prior to the filing of the modification action. The South Carolina Department of Social Services (DSS) appeals. We reverse.

FACTS

On August 5, 2005, the DSS Child Support Division (Division) served a Notice of Financial Responsibility upon Polite to establish his child support obligation for his three children. Polite appeared without representation at a September 2005 conference where he was ordered to pay bi-weekly support in the amount of $354 beginning September 30, 2005. The eldest child turned eighteen years old on December 17, 2005.

Polite testified his last phone call to the Division regarding modification was sometime in June 2006, and DSS conceded Polite called at this time. DSS stated a review was not completed until September 2007, and an administrative process negotiation was held on December 13, 2007. At the negotiation, the parents agreed to bi-weekly support payments of $304.62 for the two remaining children, but Polite sought retroactive application. The matter was continued for a judicial hearing on January 18, 2008.

At the January hearing, Polite testified he went to the Division sometime in July 2005,¹ received paperwork, and was told the Division would get back in touch with him. However, Polite also stated the Division told him at that time that he would have to “come back in for a reevaluation for the oldest kid [who] was going to turn 18 six months later.” Polite said the Division never called or scheduled anything. Polite, however, never stated he returned to the Division six months later for a reevaluation as previously instructed. Evidence was admitted showing the eldest child had dropped out of high school. The family court stated, “In light of the fact the child was not in school, I'm going to make [the reduction] retroactive ... the State collects [support] for the child. And if the child is not doing what he or she is supposed to be doing, he doesn't get it.”

DSS objected, arguing the action was not filed until December 13, 2007, and modification of child support is improper on amounts accrued before filing and service of a modification action. DSS further contended when there are multiple children, the support will continue at the ordered rate unless changed by a court order. However, the family court found Polite contacted the Division, which then told Polite it would get back to him, and the Division did not advise him he had to file anything. Although the family court found the Division formally filed the action on December 13, 2007, it ruled the reduction would be made retroactive to July 1, 2006. In doing so, the family court stated, “I'm not supposed to give [Polite] that, but I'm giving [him] a break.”

DSS filed a motion to reconsider, arguing Polite's phone call on or about July 1, 2006, did not initiate the modification action and the family court lacked authority to retroactively modify child support that accrued before the filing and service of a modification action. DSS cited South Carolina cases and statutes in support of its position, but the family court questioned whether Polite, as an unrepresented lay person, had an obligation to know the legal precedents.

The family court noted Polite asked to be notified of the procedures he needed to take to reduce his payments. However, DSS did not give him the requested notice, and Polite continued to pay the full amount of child support until the family court's ruling. The family court observed that when the family court orders a parent to pay child support, it generally includes a provision anticipating emancipation. Finding no such evidence here, the family court called Polite's case one that “slipped through the cracks.” The family court questioned whether:

[I]n light of the overall facts of this case, should [Polite's prior phone calls] have been sufficient to place the [Division] on notice or given them reason to give him an answer prior to ... January of 2007, some eighteen months after he made his request[?] Is that reasonable for him to have to pay eighteen months of child support for failure to respond to his inquiry?

The family court affirmed its earlier order, acknowledging Polite's ignorance of the law was no excuse, but reasoning the Division's failure to provide Polite with instructions worked an injustice. The family court held Polite's phone call was notice to the Division, and the Division had a duty to provide Polite with information upon his request. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in expanding the Division's duty to justify the retroactive modification?

2. Did the family court err in granting a retroactive modification to a time before filing and service of the modification action?

STANDARD OF REVIEW

On appeal from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Carpenter v. Burr, 381 S.C. 494, 501, 673 S.E.2d 818, 822 (Ct.App.2009). Nevertheless, this broad scope of review does not relieve the appellant of the burden of proving the family court committed error. Divine v. Robbins, 385 S.C. 23, 31, 683 S.E.2d 286, 290 (Ct.App.2009).

LAW/ANALYSIS

1. The Division's Duty in Modification Actions

DSS argues the family court erred in finding Polite's phone call was sufficient notice requiring action by the Division, and DSS asserts this finding expanded the Division's duty to act. DSS further argues the Division complied with its duty under South Carolina Code section 63–17–830 (2010). We agree.²

Section 63–17–830(A) ³ of the South Carolina Code (2010) provides in part:

The obligor or obligee may file a written request for modification of an order issued under this article or an existing order of the court with the division by serving the division by certified mail. If the division does not object to the request for modification based upon a showing of changed circumstances as provided by law, the division shall serve the obligor with a notice of financial responsibility ... and shall proceed as set forth in this article.

Subsection (B) states, “A request for modification made pursuant to this section does not preclude the division from enforcing and collecting upon the existing order pending the modification proceeding.” S.C.Code Ann. § 63–17–830(B) (2010). Subsection (C) explains, “Only payments accruing subsequent to the modification may be modified.” S.C.Code Ann. § 63–17–830(C) (2010).

DSS and the family court agreed the action was formally filed by the Division on December 13, 2007, and the record contains no evidence of a different date of filing and service.⁴ Regardless, the family court retroactively modified the child support to the stipulated date that Polite telephoned the Division. Section 63–17–830(A) plainly states if an obligor seeks modification, the proper step is to serve the Division by certified mail. See Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007) (“When a statute's terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning.”). Although the family court essentially treated Polite's phone call as a filing, this decision is contrary to section 63–17–830(A)'s mandates.

While it is regrettable Polite was unaware of proper procedure, no statute or case law places a duty upon the Division to instruct obligors how to pursue modification. Rather, statutory law provides an obligor seeking modification may file a written request by certified mail. Affirming the family court's finding that a phone call was notice would abandon the statute's specificity and replace it with a casual, circumstance-driven means of initiating a modification action. Moreover, from a practical standpoint, allowing a modification action to be commenced by a phone call, even if in good faith, potentially opens a Pandora's box, which we find untenable. Upholding a rule of law that permits a phone call to be the official means of notice would be difficult, if not impossible, to verify, leaving the issue of whether notice was properly given in many instances to a swearing match. Accordingly, we reverse the family court's finding that Polite's phone call to the Division was sufficient to initiate this modification action.

2. Retroactive Modification Before Time of Filing and Service

DSS argues section 63–17–310 of the South Carolina Code (2010) provides that modifications by the family court are not effective to any installment accruing prior to filing and service of an action for modification. ⁵ DSS further argues the statutory bar is absolute against retroactive child support decreases, and modifications of multi-child support orders are prospective by court action rather than at the time of an older child's emancipation.

Under South Carolina law, a parent's obligation to pay child support generally extends until the child reaches majority then ends by operation of law. Thornton v. Thornton, 328 S.C. 96, 109, 492 S.E.2d 86, 93 (1997). The family court has exclusive jurisdiction:

To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age ...; or without further order, past the age of eighteen years if the child is enrolled and still attending high school,....

S.C.Code Ann. §...