James Carson, III v. Kirsten Carson (2) ( 2024 )

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
James Rutledge Carson, III, Appellant,
v.
Kirsten Leigh Carson, Respondent.
Appellate Case No. 2020-001115
Appeal From Lancaster County
Coreen B. Khoury, Family Court Judge
Unpublished Opinion No. 2024-UP-027
Heard September 12, 2023 – Filed January 24, 2024
AFFIRMED
Barrett Wesley Martin, of Barrett W. Martin, P.A., of
Rock Hill, for Appellant.
Daniel Dominic D'Agostino and Jacqueline N. Davis,
both of D'Agostino Law Firm, of York, for Respondent.
PER CURIAM: James Rutledge Carson, III (Husband) appeals the family court's
decree of divorce and order approving the settlement agreement he and Kirsten
Leigh Carson (Wife) reached through mediation. Husband argues the family court
lacked jurisdiction to enter an order adjudicating any issues in the case after he
voluntarily dismissed the action pursuant to Rule 41(a)(1)(A), SCRCP. 1 We
affirm.
Husband and Wife separated October 13, 2018.2 On December 27, 2018, Husband
filed a complaint in the family court requesting an order "granting the parties a
decree of separate maintenance and support and incorporating their settlement
agreements therein." The complaint stated the parties were "actively engaged in
the collaborative divorce process" and anticipated "reaching settlement agreements
in full settlement of all issues which could have been raised in this proceeding
through that process."
On the same date, the parties filed a consent order (the 2018 Consent Order) signed
by the parties and their counsel and approved by the family court. The 2018
Consent Order included findings of fact on jurisdiction and addressed issues of
child support, alimony, and income taxes. A section titled "approval of settlement
agreements" stated the parties understood the agreement, entered the agreement
"freely and voluntarily," and requested the agreement be enforceable as a court
order. The 2018 Consent Order stated the facts and issues of the case were
governed by Rule 43(k), SCRCP, which provides that settlement agreements are
binding when reduced to writing and signed by the parties and their counsel.
On May 3, 2019, Husband served and filed a notice of dismissal of the action and
subsequently ceased paying alimony and child support to Wife. Wife filed an
answer and counterclaim, as well as a motion to strike the notice of dismissal. The
family court held a hearing on Wife's motion to strike on June 3, 2019. On July 3,
2019, the family court issued an order granting the motion to strike and finding
Husband's voluntary dismissal under Rule 41(a)(1)(A), SCRCP, was inconsistent
with Rule 17, SCRFC, which allowed a defendant to be heard at a merits hearing
on issues such as custody, visitation, alimony, support, equitable distribution, and
counseling fees, even if they did not file an answer. Husband filed a motion to
reconsider, which the family court denied on July 10, 2019.
On June 5, 2019, Wife filed a petition for an order and rule to show cause,
contending Husband violated the consent order by failing to pay child support and
1
See Rule 41(a)(1)(A) (providing "an action may be dismissed by the plaintiff
without order of court (A) by filing and serving a notice of dismissal at any time
before service by the adverse party of an answer or motion for summary judgment,
whichever first occurs").
2
Husband and Wife have two children: Child 1, born in 2002, and Child 2, born in
2005.
alimony. The family court issued an order and rule to show cause and scheduled a
hearing for July 11, 2019. At the hearing, Husband admitted he intentionally failed
to pay alimony and child support as set forth in the consent order after he voluntary
dismissed the case. He argued the family court lost jurisdiction over the case when
he dismissed the action. On August 8, 2019, the family court issued an order (the
Contempt Order) finding it had jurisdiction over the case and holding Husband in
willful contempt for failing to pay alimony and child support.
On August 26, 2019, Husband filed and served a notice of appeal with this court
challenging the July 3 order granting Wife's motion to strike the notice of
dismissal, the July 10 order denying his motion to reconsider (collectively, the July
Orders), and the Contempt Order. In his notice of appeal, Husband stated he
received written notice of the entry of the July orders on July 10, 2019. Wife filed
a motion to dismiss the appeal and a petition for supersedeas, in which she argued
the family court's orders were not immediately appealable. On September 27,
2019, this court denied Wife's petition for supersedeas but granted her motion to
dismiss Husband's appeals of the July Orders as untimely. This court held
Husband's appeal of the Contempt Order could proceed. On October 28, 2019,
Husband submitted his initial appellant's brief, arguing the Contempt Order was
void because the family court lost jurisdiction over the case when he served and
filed his notice of dismissal.
On December 17, 2019, Husband filed a motion to amend his original complaint in
the family court, explaining the parties were involved in the collaborative divorce
process at the time it was filed, and therefore it did not set forth any allegations
against Wife. The family court heard arguments on the motion and then issued an
order granting Husband the right to file an amended complaint. On February 10,
2020, Husband filed his amended complaint, which stated the statutory basis of
jurisdiction was section 63-3-530 of the South Carolina Code (2010 & Supp.
2023). 3 On February 12, 2020, Husband filed a second amended complaint that
restated the basis for the family court's jurisdiction and sought a determination of
the amount of child support to be paid, a finding that Wife was statutorily barred
from receiving alimony, and a requirement that Wife reimburse Husband the
temporary spousal support previously provided, as well as the relief previously
requested in his first amended complaint.
3
§ 63-3-530 (stating 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").
The parties executed a consent order to mediate, which the family court entered on
February 27, 2020 (the 2020 Consent Order). On April 20, 2020, Husband
dismissed his appeal of the Contempt Order with a stipulation signed by both
parties; this court subsequently issued an order dismissing the appeal and sent the
remittitur.
On April 22, 2020, Wife filed an answer and counterclaim seeking approval of the
marital settlement agreement the parties reached through mediation (the Settlement
Agreement) and a divorce based on one year's separation. The Settlement
Agreement was signed by both parties and their attorneys. The family court held a
final hearing on June 26, 2020. At the hearing, Husband announced the parties did
not have an agreement and reasserted his argument that the family court lost
jurisdiction over the case when he dismissed it in May 2019. The family court
issued a decree of divorce and order approving the agreement, in which the family
court adopted and incorporated the Settlement Agreement. This appeal followed.
Husband argues the family court lost jurisdiction over the case when he dismissed
the action under Rule 41(a)(1)(A), SCRCP, by filing his notice of dismissal before
Wife served an answer or motion for summary judgment. He asserts the family
court's order granting Wife's motion to strike the notice of dismissal was not
immediately appealable because it did not resolve the litigation. He contends the
family court erred by relying on Rule 43(k), SCRCP, when granting the divorce
and approving the Settlement Agreement because he was not bound to any
agreement after he dismissed the action. We disagree.
"In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo." Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014).
"Thus, this [c]ourt has jurisdiction to find facts in accordance with its own view of
the preponderance of the evidence; however, this broad scope of review does not
require the [c]ourt to disregard the findings of the family court, which is in a
superior position to make credibility determinations." Id.We hold the family court did not err in issuing the decree of divorce and order
approving the agreement because it continued to have jurisdiction over the case
after Husband failed to timely appeal the July Orders. See Doran v. Doran, 288
S.C. 477, 478, 343 S.E.2d 618, 619 (1986) ("No objection can be made to an
appealable order from which no appeal was taken"); See § 14-3-330(2)(c) (2017)
(stating the appellate court "shall review upon appeal . . . [a]n order affecting a
substantial right made in an action when such order . . . strikes out an answer or
any part thereof or any pleading in any action"); Thornton v. S.C. Elec. & Gas
Corp., 391 S.C. 297, 304, 705 S.E.2d 475, 479 (Ct. App. 2011) ("Whether an order
granting a . . . motion to strike is appealable under section 14-3-330(2)(c) depends
on the effect of the individual order under the facts and circumstances of the
case."). Husband's notice of appeal, which he served on August 26, 2019, stated he
received written notice of the July Orders on July 10, 2019. Husband therefore
failed to timely appeal the July Orders within thirty days of receipt, which this
court recognized when it dismissed his appeal of those orders for untimeliness.
See Rule 203(b), SCACR (stating that, in an appeal from the family court, the
notice of appeal must be served within thirty days "after receipt of written notice of
entry of the order or judgment); Rumpf v. Mass. Mut. Life Ins. Co., 357 S.C. 386,
398, 593 S.E.2d 183, 189 (Ct. App. 2004) ("Any unappealed portion of the trial
court's judgment is the law of the case, and must therefore be affirmed.").
Accordingly, we hold the family did not err in issuing the decree of divorce and
order approving the parties' agreement. 4
Based on the foregoing, the family court's decree of divorce and order approving
agreement is
AFFIRMED.
MCDONALD and VINSON, JJ., and BROMELL HOLMES, A.J., concur.
4
Additionally, we find Husband cannot argue that the family court lacked
jurisdiction over the case when he affirmatively recognized the family court's
jurisdiction in his amended complaints. Husband's amended complaint and second
amended complaint both stated the family court had jurisdiction pursuant to section
63-3-530.