THE STATE OF
In The Court of Appeals
Robert Widdicombe, Respondent,
Rachel P. Tucker-Cales f/k/a DuPree, Appellant.
Judy C. Bridges, Family Court Judge
Frances P. Segars-Andrews, Family Court Judge
Jocelyn B. Cate, Family Court Judge
Opinion No. 4022
Submitted June 1, 2005 – Filed August 29, 2005
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.
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
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
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
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
Mother filed an answer and counterclaim to Father’s motion for emergency relief in the
On February 15, 2001, the family court issued a consent order granting temporary custody to Father. 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
The family court denied Mother’s motion to dismiss, concluding that
Mother filed a motion to reconsider on January 22, 2002, arguing again that because neither of the parents nor the child lived in
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
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).
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
Under the unique factual circumstances of the present case, we conclude the family court orders have the practical effect of a final order affecting Mother’s substantial rights. In any event, the issues raised by Mother on appeal have been the subject of much contention in this case. They will inevitably be raised to the family court again in the future and, because they have been fully briefed by the parties, we find that it would be in the interest of judicial economy to decide the matters now. See Southern Bell Tel. and Tel. Co. v. Hamm, 306 S.C. 70, 75, 409 S.E.2d 775, 778 (1991) (deciding an issue on appeal in the interests of judicial economy). Accordingly, we move on to the merits of Mother’s appeal.
II. Subject Matter Jurisdiction
Mother’s argument on appeal, as well as before the family court in several of her prior motion hearings, is that the South Carolina family court lacked subject matter jurisdiction to order the emergency change in custody. Specifically, she contends that the South Carolina did not have continuing jurisdiction under the provisions of the controlling Uniform Child Custody Jurisdiction Act, S.C. Code Ann. §§ 20-7-782 to 830 (1985) (“UCCJA”) and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1988) (“PKPA”). We disagree.
The two statutes in question govern the subject matter jurisdiction of state courts to rule in interstate custody disputes. See, e.g., Foley v. Foley, 576 S.E.2d 383, 385 (N.C. Ct. App. 2003); In re Jorgensen, 627 N.W.2d 550, 554 (Iowa 2001). Because the PKPA is federal legislation, its provisions will govern any conflict between it and the UCCJA (
The provisions of the PKPA applicable to the present case are contained in subsection (d) of 28 U.S.C. § 1738A, which deals with continuing jurisdiction and reads as follows:
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
Subsection (c)(1), mentioned in the quote above, requires that the family court maintain jurisdiction under its own state law. Therefore, “[s]ubsection (d) basically sets forth three criteria, all of which must be met, for a court to retain [continuing] jurisdiction” under the PKPA. Dahlen v. Dahlen, 393 N.W.2d 765, 768 (N.D. 1986). The three criteria are 1) that the original custody determination was entered consistently with the provisions of the PKPA; 2) that the court maintain jurisdiction under its own state law (in South Carolina, the UCCJA); and 3) that the state remains the residence of the child or of any contestant. See id.
In the present case, the first criterion is undisputed. The child and both parties to the action were
The second requirement, that jurisdiction under
(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships . . . .
S.C. Code Ann. § 20-7-788 (1985).
The purpose of the UCCJA is to prevent conflicting custody decrees between different states. See Kirylik v. Kirylik, 292 S.C. 475, 477, 357 S.E.2d 449, 450 (1987). To this end, much deference is given to the jurisdiction of the state that initially rules on a custody matter. “Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law.” Knoth v. Knoth, 297 S.C. 460, 463, 377 S.E.2d 340, 342 (1989). Once a custody decree has been entered, the decree state has exclusive continuing jurisdiction, which is not necessarily affected by a child’s residence in another state.
Pursuant to the broad deference given to the state that initially enters a custody decree, we conclude
It is the PKPA’s third requirement for continuing jurisdiction, however, that is by far the most contested issue in this case. Unlike the UCCJA, the PKPA expressly states that at least the child or one of the contestants must remain a resident of the decree state for that state to properly exercise continuing jurisdiction. Mother contends that because, at the time of filing, Father was a resident of
Throughout the PKPA, initial jurisdictional requirements are discussed in terms of the child’s “home state.” The term “home state” is defined in the statute as “the state in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months . . . .” 28 U.S.C. § 1738A(b)(4) (1988). This language provides a court with clear standards governing its jurisdiction over a custody dispute in which there is no previous custody decree. Such is not the case when courts seek to assert continuing jurisdiction over a pre-existing custody decree. Rather than employing the expressly defined term of “home state” that is used throughout the statute, the PKPA sets forth a requirement of “residence,” a term left undefined in the statute, when discussing a court’s continuing jurisdiction over custody matters. Because “residence” is not defined in the statute, the determination of whether a decree state has lost its continuing jurisdiction generally turns on the question of the parties’ or child’s domicile. Child Custody: When Does State that Issued Previous Custody Determination Have Continuing Jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, 83 A.L.R.4th 742 (2004).
In these matters, domicile is determined by an analysis similar to that required for diversity jurisdiction in federal courts, which involves a determination of intent.
In the present case, the question of Mother and child’s residence is muddled at best. However, for many of the same reasons asserted in the UCCJA analysis above, we conclude Mother was a resident of
Moreover, several state courts have applied the doctrine of unclean hands to jurisdiction under the PKPA and UCCJA. See, e.g., Sams v. Boston, 384 S.E.2d 151, 159-62 (W.
Because we conclude Mother was a resident of
III. Attorney’s Fees
Mother next argues the family court erred in awarding attorney’s fees in that it failed to consider her financial condition in determining the award. We disagree.
An award of attorney’s fees is within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion. See Bowen v. Bowen, 327 S.C. 561, 563, 490 S.E.2d 271, 272 (Ct. App. 1997). In determining whether to award attorney’s fees, the family court should consider each party’s ability to pay his or her own fees, the beneficial results obtained, the parties’ respective financial conditions, and the effect of the fee on the parties’ standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). In determining a reasonable amount of attorney’s fees to award, the court should consider the nature, extent, and difficulty of the services rendered, the time necessarily devoted to the case, counsel’s professional standing, the contingency of compensation, the beneficial results obtained, and the customary legal fees for similar services. Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).
The family court is required to make an independent evaluation of each of the Glasscock factors.
The family court expressly considered each of the Glasscock factors. It specifically found, in reviewing Mother’s motion to reconsider, that she failed to provide the court with evidence of her financial situation on the issue of attorney’s fees. Thus, we find no abuse of discretion in the award. See Henggeler v. Hanson, 333 S.C. 598, 605, 510 S.E.2d 722, 726 (Ct. App. 1998) (finding no abuse of discretion in awarding attorney’s fees when the family court considered the Glasscock factors).
For the foregoing reasons, the family court’s denial of Mother’s motion is
ANDERSON, and STILWELL, JJ., concur.
 We decide this case without oral argument pursuant to Rule 215, SCACR.
 In January of 2004, Father filed a petition to enroll this order in
 Father’s motion to dismiss this appeal based on its interlocutory nature was recently denied on similar grounds.
 As previously stated, when the provisions of the PKPA and the UCCJA conflict, the PKPA controls under the Supremacy Clause of the United States Constitution. See Schwartz, 311 S.C. at 307-308, 428 S.E.2d at 750-51.
 Although Mother’s attorney filed these pleadings without her signature, a party is generally bound by stipulations made by their counsel. See Sadighi v. Dagnighfekr, 66 F. Supp. 2d 752, 761 (D.S.C. 1999) (citing Hall v. Benefit Ass’n of Ry. Employees, 164 S.C. 80, 83, 161 S.E. 867, 868 (1932)) (“The parties to a suit are bound by admissions, made by their attorneys of record, in open court, or elsewhere, touching matters looking to the progress of the trial.”).