Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2010-UP-330 - Blackwell v. Birket

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

Maureen Blackwell and Walter L. Blackwell, III, Appellants,

v.

Janis Birket, Jeromy Birket, and Does 1 through 20, Defendants,

Of whom Janis Birket and Jeromy Birket are the Respondents.


Appeal From Richland County
L. Casey Manning, Circuit Court Judge


Unpublished Opinion No.  2010-UP-330
Submitted June 1, 2010 – Filed June 28, 2010
Withdrawn, Substituted and Refiled November 15, 2010


AFFIRMED


Maureen Blackwell and Walter L. Blackwell, III, both pro se, of Columbia, for Appellants.

Joseph M. McCulloch, Jr., of Columbia, for Respondents.

PER CURIAM: Maureen Blackwell and Walter L. Blackwell, III (Grandmother and Grandfather, collectively Grandparents) appeal from the circuit court's dismissal of their complaint with prejudice for lack of subject matter jurisdiction and failure to state facts sufficient to constitute a cause of action.  We affirm.[1] 

FACTS

Grandparents are the biological parents of Janis Birket (Mother).  Mother and Jeromy Birket (Father) are married and have two children: Daughter and Son (Granddaughter and Grandson, collectively Children).  Mother and Father have sole custody of Children.  At the time Grandparents filed their complaint in circuit court, Granddaughter was six years of age and Son was seven months old. 

Previously, Grandparents, Mother, Father, and Granddaughter all resided in California.  For an unspecified amount of time, Granddaughter either resided in Grandparents' home or lived within close proximity to Grandparents.  As a result, Granddaughter visited Grandparents often, and Grandparents believed "a strong bond of love and affection was formed between [Granddaughter] and [Grandparents] during that time."

Thereafter, Mother and Father decided to move to South Carolina and allegedly requested Grandparents assistance in moving.[2]  As a result, Grandparents maintained they entered into an oral contract with Mother and Father whereby Grandparents agreed to the following: (1) sell their home "of approximately [thirty] years" in California; (2) name Mother as the listing agent for the home; (3) sell Grandfather's business; (4) sell Grandparents' investment property; (5) move to South Carolina with Granddaughter, "leaving behind everything in their lives, including friends, belongings and associations that they had accumulated over sixty years;" (6) give Mother a sum certain of money from a lawsuit Grandfather negotiated; (7) purchase a home in South Carolina within close proximity to Mother and Father's home "and cause a real estate commission to be paid to [Father] for that purchase;" (8) provide child care services for Mother and Father whenever needed; and (9) be a part of Granddaughter's life.  In exchange, Mother and Father allegedly agreed to (1) "provide an environment in which [Grandparents] could maintain a close and loving relationship with [Granddaughter] and allow [Grandparents] to have unfettered contact with [Granddaughter]"; (2) continue to allow Grandparents to have the same amount of contact with Granddaughter as had been previously established, including the celebration of holidays and special events; (3) utilize Grandparents for child care services for Granddaughter; and (4) perform real estate brokerage services for the sale of Grandparents' California home at no charge.[3]  Grandparents assert as an inducement to enter the contract, Mother and Father promised Grandparents they would remain an integral of Granddaughter's life. 

In May 2007, Mother and Father made the decision to stop allowing Grandparents to have contact with Granddaughter.  As a result, on March 27, 2008, Grandparents filed a complaint alleging breach of contract (specific performance), breach of contract (recission), breach of contract accompanied by a fraudulent act, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress, breach of contract (damages), and tortious interference with a contract.  Thereafter, Grandparents filed an amended complaint to include an additional cause of action for breach of contract (constructive trust).[4] Subsequently,Grandparents dismissed their first cause of action for breach of contract (specific performance).  Not only were Mother and Father named defendants, but Grandparents also named "Does 1 thru 20" as defendants responsible for enticing Mother and Father to breach the alleged oral contract. 

In their complaint, Grandparents alleged they fully performed under the contract; however, they maintained Mother and Father did not perform.  Specifically, Grandparents contended Mother and Father had "prevented all meaningful contact" between themselves and Granddaughter since May 2007.  Additionally, Grandparents asserted Mother and Father's conduct negatively impacted their relationship with Granddaughter. 

The same day Grandparents filed their complaint, Grandparents also filed a motion for a temporary restraining order prohibiting Mother and Father from disclosing the lawsuit or the underlying dispute to Granddaughter.  In their motion, Grandparents asserted the "central issue" in the lawsuit was their ability to have a relationship with Granddaughter.

During the pendency of the action in circuit court, Grandparents continued attempts of enforcing the alleged contract by contacting Mother and Father as an attempt to gain access to Granddaughter.  During this time, Grandparents did not attempt to develop any relationship with Grandson.  Unbeknownst to Mother and Father, Grandmother also volunteered at Granddaughter's school.  Additionally, Grandparents drove past Mother and Father's house.  Eventually, counsel for Mother and Father requested Grandparents cease any efforts to contact or communicate with Mother and Father.  However, Grandfather responded, stating he would "continue contact . . . as we deem appropriate.  Especially since we have grave concerns for their physical safety."  According to Mother, Grandparents offered to "resolve" the law suit if Mother and Father agreed to visitation.   Further, Grandfather stated their "goal is simply to be a part of [Mother] and [Granddaughter's] lives.  If you no[] longer want us in your life, so be it.  Should you choose to abandon us that decision should not be forced on [Granddaughter]. . . . However, if you are determined to exclude us, you may be certain we will not simply go away."  Grandfather mailed numerous letters to Mother indicating Grandparents' continued desire to be a part of Granddaughter's life and demonstrated an unwillingness to accept a refusal on their part.  Thereafter, Mother and Father filed a motion for a temporary restraining order and injunction, which the circuit court granted. 

On May 6, 2008, Mother and Father filed a motion to dismiss Grandparents' complaint pursuant to Rule 12(b)(1) and (6), SCRCP.  At the hearing, Grandparents made a motion to dismiss their first cause of action for specific performance.  As a result, the only remaining causes of action involved alleged money damages. At the hearing, Grandparents acknowledged South Carolina law prevented the enforcement of a contract for visitation. 

Following a hearing, the circuit court dismissed all of Grandparents' causes of action.  On October 14, 2008, the circuit court issued an order clarifying it did not have jurisdiction to order grandparent visitation.  The  circuit court then found Grandparents failed to state facts sufficient to constitute a cause of action for breach of contract and intentional infliction of emotional distress.  As a result, the circuit court dismissed Grandparents' complaint with prejudice.  This appeal followed.

LAW/ANALYSIS

I.  Jurisdiction

Grandparents argue the circuit court erred in finding it lacked subject matter jurisdiction.  We disagree. 

Family courts are of limited jurisdiction.  See S.C. Code Ann. § 63-3-530 (2010).  Family courts have jurisdiction over grandparent visitation only if parents are deceased, divorced, or living separate and apart.  S.C. Code Ann. § 63-3-530(33) (2010).  However, the family court generally does not have jurisdiction to enforce contractual agreements not incorporated or merged into court orders.  Lighty v. S.C. Dep't of Soc. Servs., 285 S.C. 508, 510, 330 S.E.2d 529, 530 (1985).  Rather, the circuit court is vested with jurisdiction over an action based upon a contract.  Id. at 509, 330 S.E.2d at 530.  Further, the award of money damages is "beyond the jurisdiction" of the family court.  Peake v. Peake, 284 S.C. 591, 593, 327 S.E.2d 375, 376 (Ct. App. 1985); see also Thompson v. Ballentine, 298 S.C. 289, 292, 379 S.E.2d 896, 898 (1989) (explaining that section 63-3-530 of the South Carolina Code (2010) does not give the family court authority to award money damages).

We agree with the circuit court's finding it lacked jurisdiction to order grandparent visitation because the family court has jurisdiction over grandparent visitation.  Moreover, Grandparents admitted they were not attempting to enforce visitation rights and Grandparents dismissed their demand for specific performance of the alleged contract.  Rather, Grandparents' complaint alleged breach of contract and IIED.  All of  Grandparents' causes of action requested the following forms of relief: (1) recission of the contract, (2) damages, and (3) the imposition of a constructive trust.  All of these are remedies within the circuit court's jurisdiction.  Thus, these actions were properly before the circuit court when the circuit court reviewed Grandparents breach of contract and IIED claims on the merits.

II.  Breach of Contract

Grandparents argue they pled all the essential elements of breach of contract, and the circuit court erred in dismissing their complaint pursuant to Rule 12(b)(6), SCRCP.  We disagree.

The circuit court may dismiss a claim when the defendant demonstrates the plaintiff has failed "to state facts sufficient to constitute a cause of action" in the pleadings filed with the court.  Rule 12(b)(6).  The trial court's ruling on a Rule 12(b)(6) motion "must be bottomed and premised solely upon the allegations set forth by the plaintiff."  Williams v. Condon, 347 S.C. 227, 232-33, 553 S.E.2d 496, 499-500 (Ct. App. 2001).  The motion will not be sustained if the facts alleged and the inferences reasonably deducible from the pleadings would entitle the plaintiff to relief on any theory of the case.  Id.  "The question to be considered is whether, in the light most favorable to the plaintiff, the pleadings articulate any valid claim for relief."  Id.  This court applies the same standard of review as the trial court in reviewing the dismissal of an action pursuant to Rule 12(b)(6).  Cole Vision Corp. v. Hobbs, 384 S.C. 283, 287, 680 S.E.2d 923, 925 (Ct. App. 2009). 

"The general rule, well established in South Carolina, is that courts will not enforce a contract when the subject matter of the contract or an act required for performance violates public policy as expressed in constitutional provisions, statutory law, or judicial decisions."  White v. J.M. Brown Amusement Co., 360 S.C. 366, 371, 601 S.E.2d 342, 345 (2004); see also Batchelor v. Am. Health Ins. Co., 234 S.C. 103, 112, 107 S.E.2d 36, 40 (1959) (noting that contracts violating public policy as expressed in constitutional provisions, statutes, or judicial decisions are void).  Public policy suggests that "South Carolina, as parens patriae, protects and safeguards the welfare of its children."  Mr. T v. Ms. T, 378 S.C. 127, 138, 662 S.E.2d 413, 419 (Ct. App. 2008) (quoting Cook v. Cobb, 271 S.C. 136, 145, 245 S.E.2d 612, 617 (1978)).  "This principle is founded upon the state's duty to protect those of its citizens who are unable because of infancy to take care of themselves, and on the right of the child, as citizen and ward, to the state's protection."  Id.  

Florida has held: "It is well established that a court is not bound by an agreement of parents regarding child support, custody, or visitation."  Higgins v. Higgins, 945 So. 2d 593, 596 (Fla. Dist. Ct. App. 2006); see also Taylor v. Kennedy, 649 So. 2d 270, 271-72 (Fla. Dist. Ct. App. 1994) (declining to recognize claims for specific performance of a contract for visitation in favor of a non-parent or a child's right to petition a Florida court to order his or her parent to permit visitation with third parties).  The  Higgins court explained: "One important reason for this principle is that the court must guard against the possibility that a parent might bargain away valuable rights of a child for reasons unrelated to the child's best interests."  945 So. 2d at 596.  Although not pertaining to visitation, Mississippi has held:  "The custody of a child is not subject to being traded, or possession granted or withheld as if it were a chattel, and neither is its custody subject to being used as a lever to gain a favorable bargaining position as to the division of property between the parents."  Reno v. Reno, 176 So. 2d 58, 62 (Miss. 1965).

We recognize the difficult situation Grandparents are in because for reasons not set forth in the Record on Appeal, Mother and Father have determined that Granddaughter should no longer have contact with Grandparents.  Although this is not a family court action, the heart of the alleged contract involves Grandparents attempt to have access to Granddaughter, and we are mindful that in family court there is a presumption that a fit parent's decision regarding grandparent visitation is in a child's best interests.  See Marquez v. Caudill, 376 S.C. 229, 248, 656 S.E.2d 737, 747 (2008) ("[I]t is well-settled that parents have a protected liberty interest in the care, custody, and control of their children and that this is a fundamental right protected by the Due Process Clause. . . . [T]he court must give 'special weight' to a fit parent's decision regarding visitation.  A court considering grandparents visitation over a parents objection must allow a presumption that a fit parents decision is in the child's best interest.").  The South Carolina Legislature has specifically limited the circumstances in which a grandparent is entitled to visitation and none of those are present in this case.  See S.C. Code Ann. § 63-3-530(A)(33) (2010) (explaining the family court may "order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are living separate and apart in different habitats . . . ).  As a result, Grandparents are attempting to enforce a contract that involves the exchange of money, among other things, as consideration to have "unfettered contact" with Granddaughter. 

While it is unfortunate relations among family members have degenerated to this point, allowing such a contract to be enforceable would be contrary to this state's interest in protecting children and would permit a parent to bargain away valuable rights of a child for reasons unrelated to the child's best interest.  As a result, allowing grandparents and parents the ability to contract away rights not expressly authorized by law would contravene public policy.  Accordingly,  we find the contract is unenforceable because it violates public policy, and the circuit court did not err in finding the complaint failed to state facts sufficient to constitute a cause of action. 

II.  Intentional Infliction of Emotional Distress

Grandparents contend they stated sufficient facts to constitute an action for IIED.  We disagree.

In order to recover for the IIED, a plaintiff must establish:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe so that no reasonable man could be expected to endure it. 

Ford v. Hutson, 276 S.C. 157, 162, 276 S.E.2d 776, 778-79 (1981) (internal citations and quotation marks omitted). 

Grandparents alleged in their complaint Grandfather "is disabled, of frail and ill health, and is easily upset and injured."  Further, they alleged Mother and Father

engaged in an intentional course of conduct by which they intended to physically harm [Grandfather] and which did, in fact, harm [Grandfather].  Such conduct included breaking [Grandfather's] heart by alienating [Granddaughter] and keeping her from him and preventing him from enjoying a loving relationship with [Granddaughter].  As a result, [Grandfather] suffered extreme emotional distress and physical harm. 

Additionally, Grandparents stated Mother and Father's conduct was "extreme and outrageous" and the "intentional acts exceeded the bounds allowed in a civilized society." 

Based solely on the facts alleged and the inferences reasonably deducible from the complaint, we find that Grandparents are not entitled to relief.  Mother and Father decided Grandparents should not be allowed to visit their Granddaughter, and we do not find this amounts to extreme and outrageous conduct that is utterly intolerable in a civilized community and so severe that no reasonable man could be expected to endure it.  See Hutson, 276 S.C. at 162, 276 S.E.2d at 778-79.  As a result, Grandparents failed to state facts sufficient to constitute a cause of action for IIED, and the circuit court did not err in dismissing this cause of action.   

III.  Dismissal With Prejudice

Grandparents assert their complaint should not have been dismissed with prejudice.  We disagree.

Grandparents cannot possibly amend their circuit court complaint to state facts sufficient to constitute a cause of action because the alleged contract was in violation of public policy.  See Spence v. Spence,  368 S.C. 106, 129, 628 S.E.2d 869, 881 (2006) (explaining that typically a plaintiff is given an opportunity to file and serve an amended complaint; however "if it appears to a certainty that no relief can be granted under any set of facts that can be proved in support of its allegations" the complaint may be dismissed with prejudice).  Accordingly, the circuit court did not err in dismissing Grandparents' complaint with prejudice. 

IV.  Brokerage Services

Grandparents maintain the circuit court erred in finding the promise concerning brokerage services violated the statute of limitations and that brokerage agreement contained an arbitration clause.  However, we find Grandparents abandoned this issue on appeal because Grandparents failed to cite any authority in support of this contention.  See Hunt v. S.C. Forestry Comm'n, 358 S.C. 564, 573, 595 S.E.2d 846, 851 (Ct. App. 2004) ("Issues raised in a brief but not supported by authority are deemed abandoned and will not be considered on appeal."); see also In re McCracken, 346 S.C. 87, 92, 551 S.E.2d 235, 238 (2001) ("A bald assertion, without supporting argument, does not preserve an issue for appeal.").

CONCLUSION

Based on the foregoing, the circuit court's order is

AFFIRMED.[5]

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


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

[2] The residential listing agreement for Grandparents' property in California indicates their property was listed for sale on December 5, 2004, and the seller's closing statement reflects the closing for the property occurred on February 7, 2005. 

[3] We note the residential listing agreement states Mother, as broker, received five percent of the listing price. 

[4] Grandparents also filed numerous lis pendens on various real property Mother and Father either owned or were associated with.   

[5] This court need not address Grandparents' remaining arguments because the determination of the contract issue is dispositive.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (finding this court need not address issues when its determination of a prior issue is dispositive).