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2004-UP-046 - Graham v. Graham

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Albert Gerald Graham,        Respondent,

v.

Joyce Carlene Graham,        Appellant.


Appeal From Horry County
Mary E. Buchan, Family Court Judge


Unpublished Opinion No. 2004-UP-046
Submitted November 19, 2003 – Filed January 21, 2004


AFFIRMED


Scott A. Graustein, of Conway, for Appellant.

Charles Edward Parrish, of Conway, for Respondent.

PER CURIAM:  Joyce Carlene Graham (Wife) appeals from the family court’s order of separate support and maintenance, in which the court determined child custody and support, equitable division of the marital estate, and attorneys’ fees.  We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The Wife and Albert Gerald Graham (Husband) were married February 16, 1996.  They have one child together, who was born May 20, 1995.  On September 6, 2001, the Husband was arrested for criminal domestic violence.  At this time, the Wife moved with the child to Haines City, Florida.  She filed a petition for an injunction for protection against domestic violence in Polk County, Florida on September 19, 2001.  The Florida court issued a temporary order that same day granting the wife temporary custody of the child.

The Husband brought this action September 28, 2001 in the Horry County, South Carolina family court seeking a divorce on the ground of habitual drunkenness.  In the alternative, he requested an order of separate support and maintenance.  He also requested custody of and support for the child, equitable distribution of the marital estate, including possession of specific items, and attorneys’ fees and costs.

After conferring with the Florida court, the South Carolina family court determined it had jurisdiction of this matter in regards to custody, visitation, child support, and possession of any marital assets, as well as other related matters.  Accordingly, an evidentiary hearing scheduled for December 12, 2001 in Florida was cancelled.  The South Carolina family court held a temporary hearing November 27, 2001.  The Wife was not present.  The court granted the Husband temporary custody of the child with the wife receiving visitation. 

The Wife subsequently filed an answer to the Husband’s complaint requesting custody of and support for the child, equitable distribution, alimony, and attorney’s fees and costs.  She also requested the court grant her a divorce on the grounds of physical abuse.

A final hearing was scheduled for May 20, 2002.  Prior to the hearing, the parties’ attorneys informed the court that a settlement had been reached.  However, upon questioning of the Wife, the court determined that she was not entering into the agreement freely and voluntarily.  The court adjourned the hearing and a new trial date was set for August 12-13, 2002.  During the May 20 hearing, the wife asked that her attorney be relieved as counsel.  The court granted the request, but warned her that the securing of additional counsel would not be grounds for a continuance nor would the hearing be continued at the new counsel’s request.  In its order, the court reiterated that the wife would not receive a continuance to find counsel or for her new counsel to prepare.

In this order, the court retroactively appointed the guardian ad litem who had already been working on the case.  It ordered the Husband to pay $600.00 of the guardian’s fees and the Wife to pay $1200.00 of the fees within 30 days of the hearing.  It also ordered the Wife to pay $2,337.00 of the Husband’s attorneys’ fees incurred in preparation of the postponed hearing. 

At the hearing held August 12, 2002, the Wife informed the family court that she had been unable to obtain counsel and requested that she be allowed to find representation.  The Husband opposed the request for a continuance and the guardian ad litem took no position on the issue.  The family court denied the request and proceeded with the hearing. 

In its final order, the family court held the Husband had failed to carry his burden of proof in regards to a divorce on the grounds of habitual drunkenness.  Therefore, it granted the parties an order of separate support and maintenance.  It awarded the Husband custody of the child with the Wife receiving visitation.  It ordered the Wife to pay child support through the court.  It set the parties’ responsibilities for the child’s medical care costs.  The court divided the marital estate and provided for set-offs from the estate of funds the Wife owed the Husband.  The court authorized either party to request a drug test from the other, with the requesting party being responsible for the cost of the test unless the results were positive.  The court ordered the Husband to pay $2,300.00 of the guardian’s fees and the wife pay $800.00 of the fees within 30 days of the trial.  Finally the court ordered that the parties are "restrained from contacting, harassing, threatening, or molesting one another.”  This appeal followed. 

STANDARD OF REVIEW

In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).  However, this broad scope of review does not require us to disregard the family court’s findings or relieve the appellant of the burden of convincing us the lower court committed error.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  Nor do we ignore the fact that the trial court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

DISCUSSION

I.   Continuance

The wife argues the family court erred in denying her request for a continuance to allow her to find representation.  We disagree. 

A decision whether to grant or deny a motion for continuance rests within the sound discretion of the trial court.  Jackson v. Speed, 326 S.C. 289, 309, 486 S.E.2d 750, 760 (1997).  We will not reverse the trial court without a clear showing of an abuse of discretion.  Id.

The final hearing in this matter would have been held May 20, 2002 except the Wife balked at entering into the settlement agreement and asked that her attorney be relieved as counsel.  Although the family court granted this request, it warned the Wife that the securing of additional counsel would not be grounds for a continuance nor would the hearing be continued at the new counsel’s request.  In its order, the court reiterated, "[I]n the event the [Wife] retains an attorney for the August 12th and 13th hearing, she must do so in a timely fashion, and the hiring of a new attorney will not be grounds for the [Wife] to seek another continuance.”  The Wife had almost three months to secure new counsel, but failed to do so.  She stated she had spoken to seven different attorneys, five of whom had conflicts and the other two were on vacation at the time of the hearing.  We find the Wife was aware that she would not receive additional time to either search for new counsel or for new counsel to prepare for the hearing.  Considering the adequate time the Wife had to obtain new counsel, we find the family court did not abuse its discretion in denying the Wife’s request for a continuance. 

The Wife also argues the family court erroneously held that it was bound by the prior order and did not exercise its own discretion.  As the wife failed to raise this argument to the family court, it is not preserved.  Hatfield v. Hatfield, 327 S.C. 360, 489 S.E.2d 212 (Ct. App. 1997) (issue must be raised to and ruled on by family court to be preserved for review).

II.    Due process

The Wife argues the family court denied her federal right to procedural due process because she did not receive adequate notice that she would be required to proceed pro se at the August 12, 2002 hearing.    The issue was not raised to the family court.  Therefore, it is not preserved.  In re McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) (stating constitutional claim must be raised and ruled upon to be preserved for appellate review).

III.   Jurisdiction

The Wife argues the family court granted the parties a limited divorce, which it lacks jurisdiction to do.  We disagree. 

The family court has exclusive jurisdiction to hear and determine actions:

For divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney’s fees, if requested by either party in the pleadings.

S.C. Code Ann. § 20-7-420(2) (Supp.2003).

In support of her argument that the family court acted outside of its jurisdiction, the Wife calls this court’s attention to where in the hearing the family court noted, "It is obvious that the parties can not live together.”  However, the court did not grant the parties a limited divorce.  As it clearly stated in its order, it granted them an order of separate support maintenance, which is certainly within its jurisdiction to do. 

IV.   Failure to advise wife. 

The Wife argues the family court erred in failing to advise her of the consequences of not testifying at the hearing.  The Wife never raised this argument to the family court.  Accordingly, it is not preserved.  Hatfield v. Hatfield, 327 S.C. 360, 489 S.E.2d 212 (Ct. App. 1997) (issue must be raised to and ruled on by family court to be preserved for review).

Furthermore, a pro se litigant has full responsibility for complying with substantive and procedural requirements of the law.  State v. Burton, ___ S.C. ___, ___, 589 S.E.2d 6, 9 n.5 (2003); Goodson v. American Bankers Ins. Co of Fla., 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988) (" Lack of familiarity with legal proceedings is unacceptable and the court will not hold a layman to any lesser standard than is applied to an attorney.”).

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.