October 14, 2019
From Richland County Robert S. Armstrong, Family Court Judge
O. McDougall, of McDougall, Self, Currence & McLeod, LLP,
of Columbia, and Katherine Carruth Goode, of Winnsboro, both
Whitney Boykin Harrison, of McGowan Hood & Felder, LLC,
of Columbia, for Respondent.
family court action, Robert Kosciusko ("Father")
sought a finding of contempt against Alice Witherspoon Parham
Casey ("Mother") for alleged violations of an order
confirming an arbitration award concerning child custody and
visitation. Father argues the family court erred in
dismissing his contempt action by: 1) finding that it lacked
subject-matter jurisdiction to enforce the family court's
prior order confirming the arbitration award; 2) failing to
find that Mother was estopped from challenging the award and
waived any objection to the enforceability of the order
confirming the award; 3) refusing to enforce the unappealed
order of a different family court judge confirming the
arbitration award; and 4) refusing to enforce the order
confirming the arbitration award when South Carolina's
public policy favors alternative dispute resolution and the
widespread practice in the state includes voluntary
arbitration of children's issues. As an additional
sustaining ground, Mother argues Father failed to meet his
burden of proof in the underlying rule to show cause motion.
and Father were married on October 6, 2001. During their
marriage, the parties had two children. As a result of the
breakdown of the marriage, Mother and Father separated and
entered into a property settlement, support, and custody
agreement that established "true joint custody" of
the children; and, on July 15, 2011, the family court entered
an order approving the agreement. The agreement was later
modified by an addendum, which was approved by a supplemental
order of the family court on December 19, 2011. The parties
were divorced on July 27, 2012. In the divorce order, the
family court determined that all of the matters within its
jurisdiction, including child custody and visitation, had
been resolved by the final order approving the parties'
the parties' settlement agreement, child custody and
visitation became contentious issues between Mother, Father,
and Father's new wife, Deena Dill. On July 7, 2015, and
August 20, 2015, Mother and Father attempted to mediate
issues involving child custody and visitation, but both
attempts were unsuccessful. After the failed mediations, the
parties agreed to submit the issues of "right of first
refusal, holidays, visitation schedule, vacations, and
transfers/transportation" to binding arbitration and
obtained a consent order incorporating the agreement.
However, the parties did not seek to alter the original
joint-custody award established in the settlement agreement.
The consent order was issued by the Honorable Monet S. Pincus
on October 14, 2015.
the terms of the consent order, the parties agreed to present
the arbitration award to the family court for confirmation
pursuant to section 15-48-120 of the South Carolina Code
(2005),  part of the Uniform Arbitration Act, SC
Code Ann. § 15-48-10 to -240 (2005). The order provided
that "[t]he parties further agree[d] that such
confirmation shall not require a [h]earing, but may be
accomplished based on written application of either
party." Additionally, the order provided that the family
court would retain continuing jurisdiction to modify the
arbitration award or any order of the court.
parties proceeded to binding arbitration, and the arbitrator
issued an award on November 23, 2015. Two provisions of the
award are relevant to Father's contempt action. First,
pursuant to the parties' settlement agreement, the
arbitrator determined custody would follow a "week
on/week off" schedule. However, the arbitrator clarified
that "[t]he week period shall begin on Monday morning
(at school drop-off or if there is no school at 10:00
a.m.)." Second, the arbitrator determined "[t]he
parent having the children in their custody at the conclusion
of their time when the children are to be returned to school
shall have the obligation to timely return the child/children
to school at the conclusion of their time with the
child/children if school is in session." On November 30,
2015, Judge Pincus issued an order confirming the arbitration
award without a hearing. Neither party appealed the order
confirming the award.
5, 2016, Father, acting pro se, filed a complaint
before the Honorable Robert S. Armstrong seeking to hold
Mother in contempt for alleged violations of the arbitration
award. In his complaint, Father asserted Mother was in
violation of the provision requiring that the children be
timely returned to school because the children had
accumulated five tardies and two absences over the course of
a school year. A rule to show cause was issued by the family
court on July 12, 2016. On September 21, 2016, Mother served
Father with her return, in which she argued the arbitration
award was invalid and could not be enforced because it
constituted an improper delegation of the family court's
authority. Mother also asserted Father's contempt action
was frivolous and part of a pattern of uncooperative and
harassing behavior directed at Mother by Father and Ms. Dill.
Mother filed her return with the court prior to the hearing
on September 22, 2016.
outset of the hearing, Mother moved to dismiss the contempt
action, arguing there was not a valid order to enforce. In
considering the validity of the order confirming the
arbitration award, the family court noted the law regarding
arbitration of children's issues is not clear but
indicated that case law "has been consistent that the
court cannot [delegate] its authority on matters concerning
children and custody." The family court ultimately found
the order to be unenforceable because no statute provides the
family court with jurisdiction to submit issues of child
custody and visitation to binding arbitration and case law
precludes the family court from delegating such authority to
a third party. On October 6, 2016, the family court entered
an order finding there was no valid order to enforce,
dismissing the contempt action with prejudice, and
discharging the rule to show cause.
October 17, 2016, Father filed a motion to reconsider, alter,
or amend the family court's order. Mother filed a return
to the motion on October 28, 2016, and Father filed a reply.
On October 31, 2016, the family court conducted a telephone
conference with the parties regarding the motion to
reconsider and entered an order denying the motion on
December 5, 2016. This appeal followed.
the family court err in finding that it lacked subject-matter
jurisdiction to enforce the family court's prior order
confirming the arbitration award?
the family court err in failing to find that Mother was
estopped from challenging the award and waived any objection
to the enforceability of the order confirming the award?
the family court err in refusing to enforce the unappealed
order of a different family court judge confirming the
the family court err in refusing to enforce the order
confirming the arbitration award when South Carolina's
public policy favors alternative dispute resolution?
Father meet his burden of proof in the underlying rule to
show cause motion?
family court is a court of equity." Lewis v.
Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).
"Our standard of review, therefore, is de
novo." Id.; see also Stoney v.
Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)
("[W]e reiterate that the proper standard of review in
family court matters is de novo, rather than an abuse of
discretion . . . ."). Accordingly, "[o]n 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." S.C. Dep't of
Soc. Servs. v. Polite, 391 S.C. 275, 279, 705 S.E.2d 78,
80 (Ct. App. 2011). However, "de novo review
neither relieves an appellant of demonstrating error nor
requires [an appellate court] to ignore the findings of the
family court." Lewis, 392 S.C. at 389, 709
S.E.2d at 654. Rather, an appellate court "will affirm
the decision of the family court in an equity case unless its
decision is controlled by some error of law or the appellant
satisfies the burden of showing the preponderance of the
evidence actually supports contrary factual findings by th[e
appellate] court." Holmes v. Holmes, 399 S.C.
499, 504, 732 S.E.2d 213, 216 (Ct. App. 2012).
Subject-matter jurisdiction and binding arbitration of
argues the family court erred in finding that it lacked
subject-matter jurisdiction to enforce the order confirming
the arbitration award because sections 15-48-10 and
63-3-530(A)(39) of the South Carolina Code authorize the
arbitration of domestic matters without providing an
exception for issues involving children. Mother argues the
family court properly determined it did not have
subject-matter jurisdiction to enforce the order because
binding arbitration of children's issues is precluded by
court rules and laws of the state, rendering the order void
ab initio. We agree with Mother.
results from the willful disobedience of an order of the
court." Miller v. Miller, 375 S.C. 443, 454,
652 S.E.2d 754, 759 (Ct. App. 2007) (quoting Bigham v.
Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975)).
However, it is well settled that a party may not be held in
contempt for violation of a void order. See Arnal v.
Fraser, 371 S.C. 512, 522, 641 S.E.2d 419, 424 (2007)
("[A party] cannot be held in contempt for violating an
order [that] was void ab initio for a lack of
jurisdiction."); State ex rel. McLeod v.
Holcomb, 245 S.C. 63, 66, 138 S.E.2d 707, 708 (1964)
(noting that it is a "settled principle that
disobedience of a void order or one issued without
jurisdiction is not contempt"); Long v.
McMillan, 226 S.C. 598, 609, 86 S.E.2d 477, 482 (1955)
("[D]isobedience of a void Order, Judgment, or Decree,
or one issued without jurisdiction of subject matter and
parties litigant, is not 'contempt[.]'").
"A void judgment is one that, from its inception, is a
complete nullity and is without legal effect . . . ."
Katzburg v. Katzburg, 410 S.C. 184, 187, 764 S.E.2d
3, 5 (Ct. App. 2014) (quoting Gainey v. Gainey, 382
S.C. 414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009)). "A
judgment of a court without subject[-]matter jurisdiction is
void . . . ." Id. (quoting Gainey, 382
S.C. at 424, 675 S.E.2d at 797).
jurisdiction is the power of a court to hear and determine
cases of the general class to which the proceedings in
question belong." S.C. Dep't of Soc. Servs. v.
Meek, 352 S.C. 523, 530, 575 S.E.2d 846, 849 (Ct. App.
2002) (quoting Pierce v. State, 338 S.C. 139, 150,
526 S.E.2d 222, 227 (2000)). In other words,
"subject[-]matter jurisdiction refers to a court's
constitutional or statutory power to adjudicate a case."
Johnson v. S.C. Dep't of Prob., Parole, & Pardon
Servs., 372 S.C. 279, 284, 641 S.E.2d 895, 897 (2007).
As such, "[t]he jurisdiction of a court is determined by
the sovereign creating it, and thus the question of the
specific court in which an action is to be brought is
determined in the first instance by reference to local
law." Katzburg, 410 S.C. at 187, 764 S.E.2d at
4 (quoting Peterson v. Peterson, 333 S.C. 538, 548,
510 S.E.2d 426, 431 (Ct. App. 1998)). "The family court
is a statutory court created by the legislature and,
therefore, is of limited jurisdiction." State v.
Graham, 340 S.C. 352, 355, 532 S.E.2d 262, 263 (2000);
see also S.C. Const. art V, § 12
("Jurisdiction . . . in matters appertaining to minors .
. . shall be vested as the General Assembly may provide,
consistent with the provisions of Section 1 of this
article."). Thus, the family court's
"jurisdiction is limited to that expressly or by
necessary implication conferred by statute."
Graham, 340 S.C. at 355, 532 S.E.2d at 263.
Accordingly, our supreme court has consistently provided that
"[t]he jurisdictional authority of the [family] court is
set forth in the Children's Code." Id.;
Riggs v. Riggs, 353 S.C. 230, 236 n.3, 578 S.E.2d 3,
6 n.3 (2003) ("[The precursor to section 63-3-530]
determines the family court's subject[-]matter
jurisdiction . . . ."), cited with approval in In re
Shaquille O'Neal B., 385 S.C. 243, 247, 684 S.E.2d
549, 552 (2009); see also Theisen v. Theisen, 394
S.C. 434, 441, 443 n.4, 716 S.E.2d 271, 274, 275 n.4 (2011)
(distinguishing the family court's subject-matter
jurisdiction to hear actions for separate support and
maintenance, established in section 63-3-530(A)(2) of the
Children's Code, from the family court's
authority to award separate support and maintenance
emanating from section 20-3-130(B)(5) (emphases added)).
are two statutes relevant to the family court's
jurisdiction to allow parties to voluntarily engage in
binding arbitration. First, pursuant to section 15-48-10(a),
part of the Uniform Arbitration Act,
A written agreement to submit any existing controversy to
arbitration or a provision in a written contract to submit to
arbitration any controversy thereafter arising between the
parties is valid, enforceable and irrevocable, save upon such
grounds as ...