Williams v. Williams

• Decision Date: 25 May 2022
• Docket Number: Appellate Case No. 2017-002358,Opinion No. 5910
• Citation: 436 S.C. 550,873 S.E.2d 785
• Parties: Rubiela WILLIAMS, Respondent, v. Ennis WILLIAMS, Appellant.
• Court: South Carolina Court of Appeals

436 S.C. 550

873 S.E.2d 785

Rubiela WILLIAMS, Respondent,

v.Ennis WILLIAMS, Appellant.

Appellate Case No. 2017-002358

Opinion No. 5910

Court of Appeals of South Carolina.

Submitted March 1, 2021

Filed May 25, 2022

Ennis Williams, pro se, of Charlotte, North Carolina.

Rubiela Williams, pro se, of Columbia.

KONDUROS, J.:

In this divorce action, Ennis Williams (Husband) appeals the family court's determination it had jurisdiction over him to divide his military retirement benefits. We reverse.¹

FACTS/PROCEDURAL HISTORY

Husband married Rubiela Williams (Wife) on February 14, 1990, in Michigan. They had two children—one born in 1997 and one in 2000. Husband joined the United States Navy in January 1993 and retired on February 28, 2014. The parties separated around July 20, 2015, and have been "living separate and apart" since then.

In late 2015, Wife filed a complaint in South Carolina for divorce. She also requested, inter alia , custody of the parties’ minor child; child support; alimony; equitable apportionment of the parties’ assets, debts, and property, including retirement accounts; and an order requiring Husband to set aside his "GI Bill Benefits" for the children equally. At the time of filing, Wife had been a resident of Richland County for at least one year and Husband lived in Mecklenburg County, North Carolina, where the parties last resided together.

On April 14, 2016, Husband filed a Rule 12(b), SCRCP, motion to dismiss, contending that under 10 U.S.C.A. § 1408(c)(4),² the family court did not have jurisdiction to divide his military benefits because he currently lived in North Carolina and had never been a resident or domiciled in South Carolina. He stated that he did "not absolutely nor implicitly consent to the jurisdiction of the [family] court." He therefore asserted Wife's causes of action related to his military retirement benefits should be dismissed.

On April 20, 2016, the family court held a hearing on temporary relief. Husband's attorney began by requesting that the court not consider anything related to military retirement because of Husband's pending motion to dismiss that claim for lack of jurisdiction.

Husband's attorney then noted Husband was requesting custody of the minor child. That same day—April 20, 2016—Husband filed an answer and counterclaim. In it, he again denied the family court had jurisdiction to divide his retirement military benefits, pursuant to 10 U.S.C.A. § 1408(c)(4). He asserted the family court did not have jurisdiction over him because he did not reside in the state, he was not domiciled in the state, and he did not consent to the jurisdiction of the court.³ He also counterclaimed seeking, inter alia , a divorce; custody of the minor child or in the alternative, visitation; and attorney's fees.

The family court held a hearing on May 11, 2016, on Husband's motion to dismiss for lack of jurisdiction. On May 18, 2016, the family court issued an order finding Husband consented to the family court's jurisdiction through his affirmative actions—specifically, that he filed an answer and counterclaim and appeared and participated in the temporary hearing.⁴

On May 25, 2015, Husband filed a motion for reconsideration of the family court's order. He argued he

was placed in an impossible predicament that he either not appear to the temporary hearing and forfeit the ability to contest the issues that this [c]ourt did have jurisdiction over ..., including child custody, alimony/spousal support, visitation, and child support, because the long[-]arm statute vested this [c]ourt with jurisdiction over him as he was served with this action while in this [s]tate.

He also asserted he filed the motion to dismiss six days prior to the temporary hearing and attempted to have the motion heard prior to or on the same day as the temporary hearing but the clerk of court informed his attorney it was impossible to do so. He further contended that prior to the commencement of the temporary hearing, his attorney informed the family court a motion to dismiss for lack of jurisdiction was pending and asked the court to address the motion or in the alternative, continue the temporary hearing until after the court heard the motion to dismiss. He maintained the motion to continue was not granted and the temporary hearing commenced over his objections.

The family court denied the motion for reconsideration on June 13, 2016. The family court issued a subsequent order on October 31, 2016, reiterating its findings from the initial order denying Husband's motion to dismiss for lack of jurisdiction, stating it was denying Husband's motion for reconsideration dated September 26, 2016.⁵

At the hearing regarding the final divorce decree on August 7, 2017,⁶ after Husband, appearing pro se, asserted the family court did not have jurisdiction over the military retirement, the family court stated it was again denying Husband's motion regarding jurisdiction.

On October 31, 2017, the family court granted Wife a divorce on the basis of one year's continuous separation. The decree noted the parties had reached a partial settlement primarily on the matter of custody. Regarding Husband's military retirement, the family court found "[Husband] meets the jurisdiction/venue requirements for the State of South Carolina and consented with his appearance and that of his former attorney to [the] presiding court's jurisdiction by filing his answer and counterclaim." The family court also determined Wife was entitled to a percentage of Husband's military retirement.⁷ This appeal followed.

STANDARD OF REVIEW

An appellate court reviews decisions of the family court de novo. Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). The party contesting the family court's decision bears the burden of demonstrating the family court's factual findings are not supported by the preponderance of the evidence. Id. at 388, 709 S.E.2d at 653. " Lewis did not address the standard for reviewing a family court's evidentiary or procedural rulings, which we review using an abuse of discretion standard." Stoney v. Stoney , 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (per curiam). "An abuse of discretion occurs either when a court is controlled by some error of law, or where the order is based upon findings of fact lacking evidentiary support." Sellers v. Nicholls , 432 S.C. 101, 113, 851 S.E.2d 54, 60 (Ct. App. 2020) (quoting Patel v. Patel , 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004) ). "A failure to exercise discretion amounts to an abuse of that discretion." Id. at 114, 851 S.E.2d at 60 (quoting Samples v. Mitchell , 329 S.C. 105, 112, 495 S.E.2d 213, 216 (Ct. App. 1997) ).

LAW/ANALYSIS

I. Timing of Hearing Jurisdictional Challenge and Motion for Continuance

Husband contends the family court erred in failing to first decide his prepleading personal jurisdiction challenge made at the outset of the case. He also maintains the family court erred in failing to grant him a continuance until his motion to dismiss for lack of personal jurisdiction could be heard. We agree.

"As actions are called, counsel may request that the action be continued. If good and sufficient cause for continuance is shown, the continuance may be granted by the court." Sellers v. Nicholls , 432 S.C. 101, 113-14, 851 S.E.2d 54, 60 (Ct. App. 2020) (quoting Rule 40(i)(1), SCRCP).

At the start of the temporary hearing, the family court first stated that the hearing was on the motion to dismiss for the jurisdictional issue. Husband's counsel stated "that motion to dismiss was actually scheduled for May 11. I would like to continue it until we can get that --." The court responded "I just didn't see where there was a motion --." Wife's counsel interjected "we were not even served with this motion until this morning, and we're asking that the temporary issues at least as far as custody, child support, alimony be heard this morning." Husband's counsel responded, "The motion is regarding dismissing their claim for his military retirement and also in the [a]nswer and [c]ounterclaim with regard to the G.I. Bill." The family court then stated, "I misstated that. We are here only on [Wife's] motion for temporary relief ..., so we will not hear your motion to dismiss, but we will hear your motion for temporary relief." Following Wife's argument, Husband's counsel responded and began by noting there was a motion to dismiss on the military retirement benefits for lack of jurisdiction. In the temporary order following the hearing, the family court stated "[Husband's] counsel moved to continue [Wife's] Motion for Temporary Relief scheduled for today until [Husband's] Motion to Dismiss for lack of jurisdiction with regard[ ] to his military retirement and GI Bill benefits, which was filed on April 14, 2016, could be heard on May 11, 2016." The family court stated it "denied [Husband's] Motion to Continue and the hearing commenced."

"Under the current Rules of Civil Procedure, a defense of lack of jurisdiction over the person is made by a Rule 12(b)(2) motion." 5 S.C. Jur. Abatement, Revival, and Survival of Actions Assignments § 4 (1991); Rule 12(b), SCRCP ("[T]he following defenses may at the option of the pleader be made by motion: ... (2) lack of jurisdiction over the person .... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."). "The defenses specifically enumerated (1)-(8) in subdivision (b) of this rule ... shall be heard and determined before trial on application of any party, unless the [c]ourt orders that the hearing and determination thereof be deferred until the trial." Rule 12(d), SCRCP.

"Rule 1, SCRCP[,] provides that the Rules of Civil Procedure shall be ‘construed to secure the just, speedy[,] and inexpensive determination of every action.’ " Royster Co. v. E. Distrib., Inc. , 301 S.C....