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Kosciusko v. Wilson Parham

Court of Appeals of South Carolina

November 6, 2019

Robert Dale Kosciusko, Appellant,
v.
Alice Witherspoon Wilson Parham, Respondent. In Re: Alice Witherspoon Wilson Parham n/k/a Alice Witherspoon Parham Casey, Respondent,
v.
Robert Dale Kosciusko, Appellant. Appellate Case No. 2017-000016

          Heard October 14, 2019

          Appeal From Richland County Robert S. Armstrong, Family Court Judge

          John O. McDougall, of McDougall, Self, Currence & McLeod, LLP, of Columbia, and Katherine Carruth Goode, of Winnsboro, both for Appellant.

          Whitney Boykin Harrison, of McGowan Hood & Felder, LLC, of Columbia, for Respondent.

          GEATHERS, J.

         In this 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. We affirm.

         FACTS

         Mother and Father were married on October 6, 2001.[1] 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' settlement agreement.

         Despite 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.

         Under 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), [2] 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.

         The 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.

         On July 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.

         At the 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.

         On 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.

         ISSUES ON APPEAL

         1. Did the family court err in finding that it lacked subject-matter jurisdiction to enforce the family court's prior order confirming the arbitration award?

         2. Did 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?

         3. Did the family court err in refusing to enforce the unappealed order of a different family court judge confirming the arbitration award?

         4. Did the family court err in refusing to enforce the order confirming the arbitration award when South Carolina's public policy favors alternative dispute resolution?

         5. Did Father meet his burden of proof in the underlying rule to show cause motion?

         STANDARD OF REVIEW

         "The 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).

         LAW/ANALYSIS

         I. Subject-matter jurisdiction and binding arbitration of children's issues

         Father 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.

         "Contempt 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).

         "Subject[-]matter 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.[3]" 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)).

         There 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 ...

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