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2008-UP-311 - Roberts v. Roberts

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Unpublished Opinion No. 2008-UP-311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 court’s 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 Father’s 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 Father’s 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 Child’s 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 Mother’s 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 Father’s motion for reconsideration and required Father to pay $500.00 toward Mother’s attorney’s 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 Carolina’s 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 court’s 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 child’s 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 child’s 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 Carolina’s 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 court’s 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 appellant’s substantial rights).  Both South Carolina law and California law required six months’ residency before a state could become a child’s “home state.”  Under the laws of both states, South Carolina was Child’s 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 Mother’s letter and Child’s teacher’s 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 Mother’s 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. Comm’n, 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 Mother’s alleged fraud.  Mother’s 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.  Mother’s alleged fraud did not affect the outcome of the case.  Consequently, the family court did not err in declining jurisdiction despite Mother’s alleged fraud.

CONCLUSION

We find the family court did not abuse its discretion in declining jurisdiction, regardless of Mother’s 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 UCCJA’s 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).