THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Adam S. Roberts, Appellant,
v.
Marcia M. Roberts, Respondent.
Appeal From Georgetown County
H. E. Bonnoitt, Jr., Family Court Judge
Unpublished Opinion No. 2008-UP-311
Submitted June 2, 2008 Filed June 18,
2008
AFFIRMED
David Hart Breen, of Myrtle Beach, for Appellant.
Toni Lee Tack Pennington, of Pawleys Island, for Respondent.
PER CURIAM:
In this child custody action, Adam S. Roberts (Father) appeals the family
courts dismissal for lack of jurisdiction. We affirm.[1]
FACTS
Father and Marcia M. Roberts (Mother) married on July 29, 2000,
and separated in 2001. Child was born April 26, 2001. Mother and Child moved
from New York to South Carolina in January 2002. Father remained in New York, where he was incarcerated for an unspecified period of time. Father maintained
regular telephone contact with Child and sent money to support Mother and
Child.
Father assisted Mother in purchasing a home on Pawleys Island. Although the parties remained married, Mother purchased the home in her name
only, followed by the notation an unmarried woman. Mother notified Father by
letter that she and Child had moved from South Carolina to California as of
June 1, 2006.
On June 19, 2006, Father filed suit in South Carolina seeking
divorce, equitable distribution of property, and child custody. In August, Mother
filed suit in California seeking the same relief. The South Carolina family
court heard Fathers motion for temporary relief on September 12, 2006. At that
hearing, Mother argued South Carolina lacked jurisdiction to hear this matter because
she and Child had moved from South Carolina to California on February 5, 2006.
The family court found neither party lived in South Carolina at
the time Father filed suit. Furthermore, the family court found jurisdiction
was proper in California and stated even if South Carolina had jurisdiction,
the family court would waive that jurisdiction to the State of California. Consequently, the family court dismissed Fathers case for lack of
jurisdiction.
On October 18, 2006, Father filed a motion for reconsideration of
the child custody and visitation issues. At the hearing on November 28, 2006,
Father proffered the testimony of Childs teacher, Leslie Lane Whitley, who was
also the director of the Montessori school Child attended in Pawleys Island. Whitley testified Child attended her school for at least two years. Child was
absent from school for three weeks during February 2006 and for five additional
days between the end of February and May 12, 2006. Child did not return to
school after May 12, 2006. Whitley further stated Mother had informed her that
Mother and Child traveled to California in February to assist Mothers
boyfriend in cleaning out his house and that Mother and Child would relocate to
California permanently in mid-May 2006.
On January 18, 2007, the family court entered an order finding a
dispute existed as to the date Mother and Child relocated to California. The
order also denied Fathers motion for reconsideration and required Father to
pay $500.00 toward Mothers attorneys fees. This appeal followed.
STANDARD OF REVIEW
When
reviewing a decision by the family court, the appellate court has the authority
to find the facts in accordance with its own view of the preponderance of the
evidence. Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649,
652 (2006). This broad scope of review does not require the appellate
court to disregard the findings of the family court. Wooten v. Wooten,
364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). A family court has
discretion to decline jurisdiction of a child custody matter on the basis of
inconvenient forum. Mansour v. Mansour, 296 S.C. 215, 217, 371 S.E.2d
537, 538 (1998). An abuse of discretion occurs when the conclusions of the
family court either lack evidentiary support or are controlled by an error of
law. Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct. App.
2001).
LAW/ANALYSIS
Initially,
we note this matter potentially involves South Carolina, California, and
federal child custody laws. The timing of this action further complicates the
interaction of laws, because during the pendency of the appeal, South Carolinas new uniform act governing child custody matters became effective.
In South Carolina, requests for relief made prior to June 8, 2007, in child custody
proceedings are governed by the Uniform Child Custody Jurisdiction Act (UCCJA)[2] instead of the more recently enacted Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). S.C. Code Ann. § 20-7-6094 (Supp. 2007). Child
custody actions in California are governed by the California UCCJEA. Cal. Fam. Code § 3400 (West 2008).[3]
All
motions or requests for relief in this matter were made and ruled upon during
or before January of 2007. Accordingly, the South Carolina UCCJA governed the
family courts decision from which Father appeals.
I. Inconvenient
Forum
Father
argues the family court abused its discretion by declining jurisdiction because
South Carolina had the closest connection with Child. We disagree.
The
family court is the proper forum for child custody disputes in South Carolina. S.C. Code Ann. § 20-7-400 (1985). However, a South Carolina court may
decline to exercise jurisdiction if it finds that it is an inconvenient forum
to make a custody determination under the circumstances of the case and that a
court of another state is a more appropriate forum. S.C. Code Ann. §
20-7-796(a) (1985). In determining whether South Carolina is an inconvenient
forum, the family court must examine factors including, but not limited to, the
following:
| (1) |
if another state was recently the childs home
state;
|
| (2) |
if another state has a closer connection with the
child and his family or with the child and one or more of the
contestants; [and]
|
| (3) |
if substantial evidence concerning the childs
present or future care, protection, training and personal
relationship [is] more readily available in another state. |
S.C. Code Ann. §
20-7-796(c). Under the UCCJA, South Carolina defined home state as the state
in which the child immediately preceding the time involved lived with . . . a
parent . . . for at least six consecutive months . . . . Periods of temporary
absence of any of the named persons are counted as part of the six-month or
other period. S.C. Code Ann. § 20-7-786(5).[4]
We
find the family court did not err in finding a California court was the
appropriate forum for trial of this matter. The family court had discretion
under the UCCJA to decline jurisdiction on the basis that South Carolina was an
inconvenient forum and that another state would be more appropriate. S.C. Code
Ann. § 20-7-796(a). In doing so, the family court weighed several factors and
found facts favoring trial in California. The family court found neither the
parties nor Child lived in South Carolina on or after the date Father filed
this action, both Mother and Child had become residents of California, and California was the proper jurisdiction for determination of divorce and child custody
issues. Furthermore, under its UCCJEA, California could accept jurisdiction
upon South Carolinas declination thereof.[5]
Accordingly, the family court did not abuse its discretion in finding California was a more appropriate jurisdiction for trial of child custody issues in this
case.
We disagree
with the family courts finding that South Carolina lacked subject matter jurisdiction.
Nonetheless, because the family court had both the discretion and a factual
basis to decline jurisdiction, this finding was harmless error. See Davis v. Davis, 372 S.C. 64, 87, 641 S.E.2d 446, 458 (Ct. App. 2006) (finding
error is only reversible if material and prejudicial to appellants substantial
rights). Both South Carolina law and California law required six months
residency before a state could become a childs home state. Under the laws
of both states, South Carolina was Childs home state when Father filed suit.
Mother asserted she and Child moved from South Carolina to California in
February 2006, four months before Father filed suit. Father asserted, with the
support of Mothers letter and Childs teachers testimony, that Mother and
Child moved from South Carolina in June 2006, just two weeks before Father
filed suit. However, when Father filed suit, South Carolina was the only state
in which Child had lived for six months or more. Regardless of whether Mother
moved in February or June, South Carolina did not lose home state
jurisdiction because of Mothers move to California.
Therefore,
the family court erroneously concluded South Carolina lacked jurisdiction.
However, this error was harmless, because the family court possessed authority
to decline jurisdiction in this matter. The family court correctly concluded
jurisdiction was proper in California.
II. Fraud
Father
also argues declining jurisdiction was an abuse of discretion because Mother
removed Child from South Carolina unilaterally and committed fraud on the court
in an effort to defeat South Carolina jurisdiction. We disagree.
South
Carolina recognizes fraud on the court as that species of fraud which does,
or attempts to, subvert the integrity of the Court itself, or is a fraud
perpetrated by officers of the court so that the judicial machinery cannot
perform in the usual manner its impartial task of adjudging cases that are
presented for adjudication. Chewning v. Ford Motor Co., 354 S.C. 72,
78, 579 S.E.2d 605, 608 (2003) (quoting Evans v. Gunter, 294 S.C. 525,
529, 366 S.E.2d 44, 46 (Ct. App. 1988)). To merit vacating a judgment, the
fraud alleged must be extrinsic. Id. at 80, 579 S.E.2d at 610 (citing Bryan
v. Bryan, 220 S.C. 164, 168, 66 S.E.2d 609, 610 (1951)). The fundamental
difference between extrinsic fraud and intrinsic fraud is that extrinsic fraud
denies the opposing party his day in court. Id. at 82, 579 S.E.2d at
611. Extrinsic fraud:
[I]nduces
a person not to present a case or deprives a person of the opportunity to be
heard. Relief is granted for extrinsic fraud on the theory that because the
fraud prevented a party from fully exhibiting and trying his case, there has
never been a real contest before the court on the subject matter of the action.
Id. at 81, 579 S.E.2d at 610 (quoting Hilton Head Ctr.
of S.C. v. Public Serv. Commn, 294 S.C. 9, 11, 362 S.E.2d 176, 177
(1987)). Extrinsic fraud includes subornation of perjury or intentional
concealment of documents by an attorney, but not by a witness. Id. at 82, 579 S.E.2d at 610-11.
By
contrast, equitable relief from a judgment is not available on the basis of
intrinsic fraud. Id. at 82, 579 S.E.2d at 610 (citing Bryan, 220
S.C. at 168, 66 S.E.2d at 610). Intrinsic fraud misleads a court in
determining issues and induces the court to find for the party perpetrating the
fraud. Id. at 81, 579 S.E.2d at 610 (quoting Hilton Head Ctr.,
294 S.C. at 11, 362 S.E.2d at 177). Intrinsic fraud includes perjury by a
party or a witness. Id. at 81, 579 S.E.2d at 610.
The
family court did not err in declining to accept jurisdiction on the basis of
Mothers alleged fraud. Mothers misrepresentation of the date she and Child
moved to California is, at worst, perjury by a party. Perjury by a party is
intrinsic fraud. Because relief from judgment is not available for intrinsic
fraud, the family court correctly declined to reconsider its decision. Furthermore,
the family court had discretion to waive jurisdiction even if Mother had
admitted to moving in June rather than in February. Mothers alleged fraud did
not affect the outcome of the case. Consequently, the family court did not err
in declining jurisdiction despite Mothers alleged fraud.
CONCLUSION
We
find the family court did not abuse its discretion in declining jurisdiction,
regardless of Mothers alleged fraud in misrepresenting the date she and Child
moved to California. Accordingly, the order of the family court in this matter
is
AFFIRMED.
SHORT
and KONDUROS, JJ., and CURETON, A.J., concur.
[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.
[2] S.C. Code Ann. §§ 20-7-782 to -830 (repealed 2007).
[3] If state and federal laws on child custody
jurisdiction conflict, both South Carolina and California courts defer to the
provisions of the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.
§ 1738A (2000). Clay v. Burckle, 369 S.C. 651, 656, 633 S.E.2d 173, 176
(Ct. App. 2006); In re Marriage of Pedowitz, 179 Cal. App. 3d 992, 999
(5th Dist. 1986). We see no such conflict in this matter. Consequently, we
rely on state law to resolve the questions raised herein.
[4] The South Carolina UCCJAs definition of home state
is substantially similar to the definitions in the PKPA and the California
UCCJEA. See 28 U.S.C. § 1738A(b)(4) (2000); Cal. Fam. Code § 3402(g) (West
2008).
[5] Under certain circumstances, a California court may
make an initial child custody determination concerning a child whose home state
is elsewhere. For example, a California court may accept jurisdiction if all
other courts having jurisdiction have declined to exercise jurisdiction on the
ground that a court of this state is the more appropriate forum to determine
the custody of the child either because each other state is an inconvenient
forum or because the party seeking California jurisdiction has engaged in
unjustified conduct. Cal. Fam. Code § 3421(a) (West 2008).