Denzil W. Miller v. Emily Horn and Michael Horn ( 2023 )

The South Carolina Court of Appeals
JENNY ABBOTT KITCHINGS POST OFFICE BOX 11629
CLERK COLUMBIA, SOUTH CAROLINA 29211
1220 SENATE STREET
V. CLAIRE ALLEN COLUMBIA, SOUTH CAROLINA 29201
CHIEF DEPUTY CLERK
TELEPHONE: (803) 734-1890
FAX: (803) 734-1839
www.sccourts.org
March 08, 2023
Mr. William Andrew Wallace Buxton, Esquire
1165 Broad Street, PMB 316
Sumter SC 29150
Mr. Paul L. Held, Esquire
136 N. Main St.
Sumter SC 29150
Ms. Jessica Jae Boylan, Esquire
907 Calhoun Street
Columbia SC 29205
Re: Denzil W. Miller v. Emily Horn and Michael Horn
Appellate Case No. 2021-000173
Dear Counsel:
Enclosed is the revised decision of the Court. All time lines remain the same as the
previous opinion. The remittitur will be sent as provided by Rule 221(b) of the
South Carolina Appellate Court Rules.
Very truly yours,
CLERK
cc: Brett Lamb Stevens, Esquire
Philip Bryan Atkinson, Esquire
The Honorable Gordon B. Jenkinson
2
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
Denzil W. Miller, Respondent,
v.
Emily Horn and Michael Horn, Appellants,
and
Denzil W. Miller, Respondent/Intervenor.
Appellate Case No. 2021-000173
Appeal From Sumter County
Gordon B. Jenkinson, Family Court Judge
Unpublished Opinion No. 2023-UP-081
Heard February 14, 2023 – Filed March 8, 2023
AFFIRMED
Paul L. Held, of Law Ofc. of Paul L. Held, of Sumter, for
Appellants.
Jessica Jae Boylan, of The Sullivan Law Firm, LLC, and
Brett Lamb Stevens, of Stevens Law, LLC, both of
Columbia, for Respondent/Intervenor Denzil W. Miller.
William Andrew Wallace Buxton, of The Law Office of
William A.W. Buxton, LLC, of Sumter, for Respondent
Denzil W. Miller.
Philip Bryan Atkinson, of Atkinson Law Firm, LLC, of
Florence, as Guardian ad Litem.
PER CURIAM: Emily Horn (Mother) and Michael Horn (Stepfather;
collectively, the Horns) appeal an order of the family court finding Mother unfit
and awarding custody of Mother's minor child (Child) to Child's great-grandfather,
Denzil W. Miller (Great-Grandfather). 1 On appeal, the Horns argue the family
court erred by (1) finding them in willful contempt, (2) failing to grant them a new
trial due to various procedural errors in the pretrial and final hearings, and (3)
finding Mother unfit and awarding custody of Child to Great-Grandfather. We
affirm.
1. We hold the Horns' arguments regarding the family court's contempt findings
and the sanctions imposed pursuant to the pretrial order are not preserved for
appellate review because those orders were not appealed.2 See Rule 203(b)(3),
SCACR (explaining a notice of appeal from the family court "shall be served in the
same manner provided by Rule 203(b)(1)"); Rule 203(b)(1), SCACR (stating
appeals from the court of common pleas "shall be served on all respondents within
thirty (30) days after receipt of written notice of entry of the order"); Elam v. S.C.
Dep't of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004) ("The requirement
of service of the notice of appeal is jurisdictional, i.e., if a party misses the
deadline, the appellate court lacks jurisdiction to consider the appeal and has no
authority or discretion to 'rescue' the delinquent party by extending or ignoring the
deadline for service of the notice.").
2. We hold the family court did not err in finding Mother unfit and awarding
custody to Great-Grandfather. See Dorchester Cnty. Dep't of Soc. Servs. v. Miller,
1
There are two parties in this case with the same name. Child's father is also
named Denzil W. Miller. He is the Respondent in this action.
2
Although the Horns present the findings of contempt and denial of a new trial as
distinct arguments in their statement of issues on appeal, the issues were argued
together in the first section of their brief, and we address them together in this
opinion.
324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996) ("On appeal from the
family court, this [c]ourt has jurisdiction to correct errors of law and find facts in
accordance with its own view of the preponderance of the evidence."); id.("Because the appellate court lacks the opportunity for direct observation of the
witnesses, it should accord great deference to [family] court findings where matters
of credibility are involved."); Morehouse v. Morehouse, 317 S.C. 222, 226, 452
S.E.2d 632, 634 (Ct. App. 1994) ("We should be reluctant to substitute our own
evaluation of the evidence on child custody for that of the [family] court."); Baker
v. Wolfe, 333 S.C. 605, 611, 510 S.E.2d 726, 730 (Ct. App. 1998) ("While there is
a presumption in favor of awarding custody to a natural parent over a third party,
that presumption applies only if the parent is found to be fit."); Middleton v.
Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006) ("In all child
custody cases, the welfare of the child and the child's best interest is the 'primary,
paramount and controlling consideration of the court . . . .'" (quoting Cook v. Cobb,
271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978))); Baker, 333 S.C. at 610, 510
S.E.2d at 729 (affirming the family court's finding that Mother was unfit because
"there [wa]s evidence that . . . the children ha[d] suffered physical abuse at the
hands of the Stepfather" and Mother's unwillingness or inability to protect her
children from Stepfather "support[ed] the conclusion that the Mother [wa]s not fit
to parent").
AFFIRMED.
KONDUROS, HEWITT, and VINSON, JJ., concur.