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2010-UP-273 - Stacey E. v. Richard E.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Stacey E., Appellant,

v.

Richard E., Respondent.


Appeal From Orangeburg County
Anne Gue Jones, Family Court Judge


Unpublished Opinion No. 2010-UP-273
Submitted May 3, 2010 – Filed May 19, 2010


AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART, AND REMANDED


Mark John Devine, of Aiken, for Appellant.

Cynthia Bailey Berry, of Orangeburg, for Respondent.

Jacqueline F. Busbee, of Wagner, for Guardian Ad Litem.

PER CURIAM: Following Stacey E.'s (Mother's) divorce from Richard E. (Father), Mother filed a termination of parental rights (TPR) action against Father alleging he (1) failed to visit D.E. (Child) and (2) failed to support Child.  Following a hearing, the family court issued an order refusing Mother's request to terminate Father's parental rights, which Mother now appeals.  Mother also asserts the family court erred in instructing the guardian ad litem (GAL) to establish a visitation schedule.  We affirm in part, reverse in part, and remand.[1]    

1.  We affirm the family court's finding Father did not willfully fail to support Child pursuant to section 63-7-2570(4) of the South Carolina Code (2010).  See S.C. Dep't of Soc. Servs. v. Seegars, 367 S.C. 623, 630, 627 S.E.2d 718, 721 (2006) (explaining that whether a parent's failure to support a child is "willful" within the meaning of the statute is a question of intent to be determined in each case from all the facts and circumstances); Id. at 630, 627 S.E.2d at 721-22 (explaining conduct of a parent that "evinces a settled purpose to forego parental duties may fairly be characterized as willful because it manifests a conscious indifference to the rights of the child to receive support and consortium from the parent").

2.  We affirm the family court's finding Father did not willfully fail to visit Child pursuant to section 63-7-2570(3) because evidence established Father attempted to visit Child.  See § 63-7-2570(3) ("The child has lived outside the home of either parent for a period of six months, and during that time the parent has wil[l]fully failed to visit the child.  The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order.  The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit.").[2]

3.  We reverse the portion of the family court's order instructing the GAL to develop a visitation schedule, and we remand this issue to the family court for it to establish visitation.  See Stefan v. Stefan, 320 S.C. 419, 422, 465 S.E.2d 734, 736 (Ct. App. 1995) (holding the family court, not the GAL, is charged with the authority and responsibility for protecting the interest of minors involved in litigation); Id. (explaining the family court is responsible for establishing visitation and it should not delegate that responsibility to the GAL).

4.  We modify the family court's order regarding child support.  The family court's order required Father to pay $60.00 in weekly child support; however, the child support calculation sheet indicates Father is required to pay $60.90 in weekly child support.  Accordingly, we find the order should reflect Father is required to pay $60.90 in weekly child support.  See Mr. T v. Ms. T,  378 S.C. 127, 132, 662 S.E.2d 413, 416 (Ct. App. 2008) ("[W]here the interests of minors or incompetents are involved, [p]rocedural rules are subservient to the court's duty to zealously guard the rights of minors.  Where the rights and best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties.") (internal quotation marks omitted).

AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS, GEATHERS, and LOCKEMY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Due to our disposition of Mother's first two issues on appeal, we need not address the issue of whether TPR was in Child's best interest. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining this court need not review remaining issues on appeal when its determination of a prior issue is dispositive); see also Proctor v. Spires, 381 S.C. 563, 567 n.3, 673 S.E.2d 841, 843 n.3 (Ct. App. 2009) (finding this court need not address whether TPR was in a child's best interest when no statutory ground for TPR existed).