Taylor v. Taylor
| Decision Date | 07 July 2021 |
| Docket Number | Appellate Case No. 2017-001816,Opinion No. 5831 |
| Citation | 863 S.E.2d 335,434 S.C. 307 |
| Parties | Allison A. TAYLOR nka Allison M. Aldridge, Appellant, and Melissa F. Brown, Third-Party Appellant, v. David G. TAYLOR, Respondent, and Kendra Christmas, Third-Party Respondent. |
| Court | South Carolina Court of Appeals |
J. Michael Taylor, of Taylor/Potterfield, of Columbia, for Appellant Melissa F. Brown.
Leslie Therese Sarji, of Charleston, for Appellant Allison A. Taylor.
Rene Stuhr Dukes, of Rosen Hagood LLC, of Charleston, for Respondent Kendra Christmas.
Deborah Kay Lewis, of Charleston, for Respondent David G. Taylor.
Allison M. Aldridge (Mother) appeals the family court's order finding her in contempt for violating the visitation provisions of her divorce order (Divorce Decree). Mother and Melissa F. Brown, Mother's counsel in the contempt proceedings, (collectively, Appellants) jointly appeal the family court's order quashing subpoenas they issued. Appellants also appeal the family court's orders finding the subpoenas imposed an undue burden and expense and ordering Appellants to pay David G. Taylor's (Father) and Kendra Christmas's, Father's girlfriend, attorney's fees as a sanction. We affirm in part and reverse in part.
Mother and Father (collectively, Parents) married on April 1, 2006, and had a child (Son). Parents filed for a divorce in 2011 and entered into a settlement agreement that established custody and a visitation plan. In 2013, the family court granted Parents a divorce on the ground of one year's continuous separation and incorporated the settlement agreement into the Divorce Decree. The Divorce Decree established joint custody of Son, granting Mother primary placement and establishing summer and alternating weekend visitation for Father. The Divorce Decree also provided that Parents would mutually agree on holiday visitation and established a default visitation schedule in the event Parents failed to reach an agreement. The Divorce Decree also stated that the default schedule could be altered by Parents.
In late November 2016, Father filed an affidavit (Affidavit) with the family court, alleging Mother violated the Divorce Decree by denying him visitation for Thanksgiving and Son's birthday that year. He asked the court to "modify [his] parenting time (visitation) with [Son] for all weekends, holidays[,] and summer in consideration of" Mother's violations of the Divorce Decree and to award him attorney's fees. On December 2, 2016, the court issued a rule to show cause and set a hearing date for January 31, 2017.
Father served Mother with the rule to show cause and his Affidavit on January 15, 2017. Mother retained Brown on January 25, and she filed a return on January 26. In her return, Mother denied willfully violating the Divorce Decree and requested attorney's fees.
On January 26, Brown served subpoenas on Father, Christmas, and Julie Tillman, and on January 27, she served a subpoena on April Shores.1 The subpoenas commanded each individual to appear at the hearing on January 31 to testify and produce certain documents. Brown mailed and emailed Father a copy of all the subpoenas on the same day she served them. On January 27, Father filed a motion to quash the subpoenas and requested sanctions and attorney's fees. On the date of the hearing, Mother filed a return to Father's motion to quash asserting the requested documents were relevant to Father's requested relief and his ability to pay attorney's fees.
At trial, the family court first addressed Father's motion to quash. Christmas, who had retained counsel, orally joined Father's motion. After reviewing the pleadings and hearing additional argument, the family court orally quashed the subpoenas as to the requested production of documents. The court briefly noted its reasoning on the record and stated it would later reduce its ruling to writing. The court initially dismissed the nonparty witnesses as part of its quashing but ultimately recalled them after realizing the subpoenas additionally requested their presence to testify. Christmas and Shores returned, but Tillman could not be reached.
Father stipulated he was capable of paying Mother's attorney's fees should she prevail on the issue of contempt, and Mother accepted his stipulation. The parties then presented evidence on the issue of contempt. Near the end of the day, the family court assured Mother it would not grant Father visitation for every weekend, holiday, and all of summer break even if he were to prevail. Mother informed the court that because of this assurance and Father's stipulation for attorney's fees, she no longer needed to question the nonparty witnesses, and the court released them. The remainder of the trial occurred on April 11 and July 10.
On August 1, 2017, the family court issued an order (the Final Order) finding Mother in contempt for willfully violating the Divorce Decree by denying Father visitation for Thanksgiving and Son's birthday in 2016. The family court awarded Father $11,742.50 in attorney's fees under the E.D.M. v. T.A.M.2 and Glasscock v. Glasscock3 factors and as a compensatory contempt award under Miller v. Miller .4
The family court also awarded Father five days of make-up visitation and made three modifications to the Divorce Decree: the first modified the visitation provision regarding Son's birthday; the second required any agreed alteration of visitation to be in writing, such as in text messages or emails; and the third established that the alternating weekend visitation would reset after each holiday. The family court sentenced Mother to thirty days’ incarceration but provided her the ability to purge the sentence by paying Father's attorney's fees and by cooperating with Father in completing his make-up visitation days.
In the same order, the family court provided its written ruling on Father's motion to quash and his request for sanctions. The family court listed five grounds for quashing the subpoenas: (1) Brown violated Rule 45, SCRCP, by failing to give Father notice of the subpoenas at least ten days before the time specified for compliance; (2) the subpoenas were issued in contravention of Rule 25, SCRFC, which, at that time, prohibited discovery in family court unless the parties consented or the court issued an order of discovery;5 (3) the subpoenas imposed an undue burden and expense on the witnesses; (4) the subpoenas failed to allow reasonable time for compliance; and (5) the subpoenas required the witnesses to perform affirmative acts. On the same day, the family court also issued a separate order (the Christmas Order) finding the subpoena imposed an undue burden and expense on Christmas. Because it found the subpoenas imposed an undue burden and expense on Father and Christmas, the family court ordered Appellants to pay Father's and Christmas's attorney's fees of $3,186.25 and $3,465.00, respectively, as a sanction. The award to Christmas also included $140.00 in compensation for childcare Christmas obtained so she could gather the requested material.
On August 11, 2017, Mother filed a Rule 59, SCRCP, motion to alter or amend the Final Order and the Christmas Order, and Brown filed a motion joining Mother's motion. On August 15, the family court denied Appellants’ motions with the exception of Mother's request that Father exercise his make-up visitation before August 1, 2018. This appeal followed.6
I. Did the family court err in finding Mother in contempt for violating the Divorce Decree?
II. Did the family court err in quashing the subpoenas issued by Appellants?
III. Did the family court err in finding the issued subpoenas imposed an undue burden and expense on Father and Christmas?
On appeal from the family court, the appellate court reviews factual and legal issues de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam). Thus, the appellate court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis , 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). However, this broad scope of review does not require the appellate court to disregard the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id. at 385, 392, 709 S.E.2d at 651–52, 655. Therefore, the appellant bears the burden of convincing the appellate court that the family court committed error or that the preponderance of the evidence is against the family court's findings. Id. at 392, 709 S.E.2d at 655.
However, a ruling on a motion to quash a subpoena is a procedural ruling, which is reviewed under the abuse of discretion standard. See Stoney , 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2 (). "An abuse of discretion occurs when the ruling is controlled by an error of law, or when based on factual conclusions, is without evidentiary support." Landry v. Landry , 430 S.C. 153, 160, 843 S.E.2d 491, 494 (2020).
Father asserts the matters of Mother's contempt and the modification of the Divorce Decree are moot because of Mother's compliance with the modifications and the make-up visitation. Father argues because the family court only stayed the financial portions of its order and Mother has complied with other portions, there is no justiciable controversy for this court to resolve. See Jordan v. Harrison , 303 S.C. 522, 524, 402 S.E.2d 188, 189 (Ct. App. 1991) (). However, the record on appeal does not contain any evidence of Mother's alleged compliance. See Rule 210(h), SCACR (...
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