Widdicombe v. Tucker-Cales

• Decision Date: 20 October 2005
• Docket Number: No. 4022.,4022.
• Citation: 620 S.E.2d 333
• Court: South Carolina Supreme Court
• Parties: Robert WIDDICOMBE, Respondent, v. Rachel P. TUCKER-CALES f/k/a DuPree, Appellant.

620 S.E.2d 333

Robert WIDDICOMBE, Respondent, v. Rachel P. TUCKER-CALES f/k/a DuPree, Appellant.

No. 4022.

Court of Appeals of South Carolina.

Submitted June 1, 2005.

Decided August 29, 2005.

Rehearing Denied October 20, 2005.

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Rachel Putnam Tucker-Cales, of Mt. Pleasant, Pro Se, for Appellant.

Paul B. Ferrara, III, of Summerville, for Respondent.

WILLIAMS, J.:

Rachel P. Tucker-Cales (Mother) appeals the family court's denial of her motion for relief from judgment. We affirm.¹

FACTS

This child custody case has a tortured procedural history. On December 15, 1995, the family court approved a settlement agreement between Robert Widdicombe (Father) and Mother, which addressed the custody of their minor child, a son born October 22, 1993. The settlement agreement provided that Mother would have custody and Father would have standard visitation. It also provided that neither party could take the child out of the jurisdiction without providing the other party 60 days' notice.

On August 22, 2000, Father, who had remarried and moved to Illinois, filed a summons and complaint in South Carolina seeking custody of his son. The complaint alleged, among other things, that Mother moved numerous times without notifying Father. The complaint also alleged that Mother's last known address was in South Carolina, but her present whereabouts were unknown.

In an affidavit attached to the complaint, Father recounted his longstanding hardships in locating and communicating with Mother and his son. He claimed he knew Mother and child were living in North Carolina, but for several years the only dependable way to get in touch with Mother was to withhold her support payments until she phoned. In 1998, according to Father, Mother dropped the child off at his home, claiming she would return the following morning. Mother did not return for two and a half weeks, and the child's maternal grandmother eventually picked him up. From 1998 to 2000, Father learned several disturbing facts regarding Mother and his son, including allegations that Mother was on probation for passing fraudulent checks and was involved in an abusive bigamous marriage. He became increasingly concerned when, in June 2000, Mother's probation officer notified him that Mother's whereabouts were unknown. Father then received a telephone call from the child's maternal grandmother informing him that Mother was living with her in South Carolina and he should send the child support payments there. A safety check performed by local police on August 2, 2000, confirmed that Mother and the child were in fact residing at the grandmother's home. Shortly thereafter, Father learned from Mother's probation officer that Mother was back in North Carolina and the child was not enrolled in school. The maternal grandmother continued to claim that Mother and the child were in South Carolina. On August 16, however, Father learned with certainty that Mother and the child were in a shelter in North Carolina and that the child was hungry and sick. Shelter records indicate Mother moved into the shelter on August 3, 2000, one day after the police performed the safety check. School records from North Carolina indicate the child was enrolled for ten days in August of 2000.

From August 17 to August 31, 2000, Father left a series of voice mail messages on the maternal grandmother's answering machine. These messages indicate Father left Illinois and traveled to South Carolina to appear before the South Carolina family court.

On August 28, 2000, the family court issued an ex parte order granting Father immediate legal and physical custody of the child. This order was based on allegations in Father's affidavit discussed above. He picked up the child from a North Carolina day care center promptly after obtaining emergency custody and returned to Illinois.

Mother filed an answer and counterclaim to Father's motion for emergency relief in the South Carolina family court on November 11, 2000. Mother stated she moved to North Carolina in 1998 and returned to South Carolina in August 2000. Shortly thereafter, she moved back to North Carolina into a battered women's shelter. Importantly, Mother asserted that, despite her many relocations, the South Carolina family court had jurisdiction because she was a resident of Charleston County, South Carolina, and had been so for over one year. She admitted Father's allegations of being in a bigamous marriage, being investigated by social services in North Carolina, and being on probation for writing fraudulent checks. Mother demanded a hearing and sought full custody of the child.

On February 15, 2001, the family court issued a consent order granting temporary custody to Father.² On August 1, 2001, the family court struck the case from the active roster pursuant to the 270-day rule, leaving the temporary order in effect. On August 15, counsel for Father submitted an order restoring the case to the active roster, but the court did not sign the order. On November 27, Mother filed a motion to dismiss the case for lack of personal and subject matter jurisdiction due to the fact that neither the child nor either parent was a resident of South Carolina on the date of the ex parte order. Mother then filed a motion to relieve counsel on the alleged grounds that her attorney knowingly made false statements in documents filed with the court and entered into consent orders without consulting with her.

The family court denied Mother's motion to dismiss, concluding that South Carolina has exclusive, continuing jurisdiction based on the 1995 custody order and Mother's residency in this state for more than one year. The family court also noted that no litigation was pending in any other state regarding custody of the child. Additionally, the family court denied Mother's motion to change custody because exigent circumstances did not exist warranting a change in custody. The order provided that the temporary consent order of February 15, 2001 was to remain in effect.

Mother filed a motion to reconsider on January 22, 2002, arguing again that because neither of the parents nor the child lived in South Carolina at the time Father's action was filed, the family court lacked subject matter jurisdiction. After a hearing, the family court denied the motion to reconsider. The family court found that Mother submitted herself to the family court's jurisdiction, and the case had continued without objection from Mother for over a year before she filed the motion to dismiss. Father was awarded $562.50 in attorney's fees.

Mother appealed to this court. On November 18, 2002, Father's motion to dismiss the appeal was granted on the ground that the appeal was interlocutory. Mother's subsequent writs of prohibition and mandamus were dismissed in June 2003.

On January 6, 2004, Mother filed an expedited motion for relief from judgment in the family court, again alleging the case was void ab initio for lack of subject matter jurisdiction. The family court denied Mother's motion, finding that no final order had yet been issued in the case, and further found that the motion was not timely brought within the one-year statute of limitations. The family court reaffirmed that it had jurisdiction and awarded Father $775 in attorney's fees.

Mother then filed a motion to reconsider, limiting her request to only two issues: (1) whether the family court had jurisdiction at the commencement of the case; and (2) whether the family court failed to consider all the factors required by law in awarding attorney's fees in that it did not consider her financial condition. Mother alleged in her supporting affidavit that she moved to North Carolina in 1998 and was still living there when Father's complaint was filed. The family court denied Wife's motion on March 11, 2004. This appeal follows.

STANDARD OF REVIEW

On appeal from the family court, this court has authority to determine facts in accordance with its own view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 244-45 (Ct.App.1999). This court, however, is not required to disregard the family court's findings, nor should we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999); Smith v. Smith, 327 S.C. 448, 453, 486 S.E.2d 516, 519 (Ct.App.1997).

LAW/ANALYSIS

I. Interlocutory Appeal

We must first address Father's argument that this court lacks jurisdiction because the orders appealed from are interlocutory. We disagree.

Section 14-3-330 of the South Carolina Code (1976 & Supp.2004) sets forth the requirements for appellate jurisdiction and reads as follows:

[Appellate courts] shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal:

(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action....

Matters involving the custody of one's child certainly constitute a "substantial right" as contemplated in the South Carolina statute. See Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that parenting is a fundamental constitutional right and due process is mandatory when such a right is jeopardized). Much of the delay in receiving a final custody hearing can be attributed to Mother's failure to request that the case be restored to the active roster or file a new case seeking modification of custody. Nevertheless, the record reveals that although the emergency order temporarily changing custody, the temporary consent order, and the subsequent motion rulings are not true final orders, they are certainly being treated as such by the family court. The family court's order of January...