Adamson v. Jackson ( 2021 )

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
Clarence E. Adamson, Respondent,
v.
Jaquanna K. Jackson, Appellant.
Appellate Case No. 2018-000060
Appeal From Richland County
Michelle M. Hurley, Family Court Judge
Unpublished Opinion No. 2021-UP-321
Submitted October 1, 2020 – Filed September 8, 2021
AFFIRMED
Carrie Ann Warner, of Carrie A. Warner, Attorney at
Law, LLC, of Columbia, for Appellant.
Clarence E. Adamson, of Columbia, pro se.
PER CURIAM: Jaquanna Jackson (Mother) appeals the family court's final
order. On appeal, Mother argues the family court erred in (1) granting Clarence
Adamson (Father) unsupervised visitation of their twins (Children), who were born
in August of 2013; (2) denying her motion in limine; (3) admitting Father's alcohol
test results; (4) failing to garnish Father's Veteran's Affairs (VA) disability
benefits; (5) failing to find Father in willful contempt for failure to pay child
support; and (6) failing to grant her additional attorney's fees. We affirm.
1. We hold the family court did not err in granting Father unsupervised visitation.
See Buist v. Buist, 410 S.C. 569, 574, 766 S.E.2d 381, 383 (2014) ("Appellate
courts review appeals from the family court de novo."); Lewis v. Lewis, 400 S.C.
354, 361, 734 S.E.2d 322, 325 (Ct. App. 2012) ("[W]hile this court has the
authority to find facts in accordance with its own view of the preponderance of the
evidence, 'we recognize the superior position of the family court . . . in making
credibility determinations.'" (quoting Lewis v. Lewis, 392 S.C. 381, 392, 709
S.E.2d 650, 655 (2011))). We find unsupervised visitation was in Children's best
interests. Evidence in the record demonstrated Father could be a positive influence
on Children. He has had continued positive contact with Children, there was no
evidence Father was intoxicated during visits, and unsupervised visitation would
not be detrimental to Children's welfare. See Paparella v. Paparella, 340 S.C. 186,
191, 531 S.E.2d 297, 300 (Ct. App. 2000) ("As with child custody, the welfare and
best interests of the child are the primary considerations in determining
visitation."); Duck v. Jenkins, 297 S.C. 136, 139, 375 S.E.2d 178, 179 (Ct. App.
1988) ("Visitation privileges with [a] child may be denied a parent where [his or
her] exercise would injure the child emotionally.").
2. We hold the family court did not err in denying Mother's request to sanction
Father for discovery violations by prohibiting him from presenting a case in chief.
See Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018)
(stating appellate courts review the "family court's evidentiary or procedural
rulings . . . using an abuse of discretion standard"); Broom v. Jennifer J., 403 S.C.
96, 115, 742 S.E.2d 382, 391 (2013) (stating "the admission or exclusion of
evidence is within the trial judge's discretion[,] and to warrant reversal[,] an
appellant must show both abuse of discretion and prejudice"); Kramer v. Kramer,
323 S.C. 212, 217, 473 S.E.2d 846, 848 (Ct. App. 1996) ("[T]he rules of discovery
were designed to promote the full examination of all relevant facts and issues and
to discourage litigants from surprising one another through the introduction of
unexpected testimony."); id. ("In order to encourage compliance with discovery
rules, trial courts can impose sanctions upon parties who violate them, including
the exclusion of witnesses whose identities have been withheld."); Rule
37(b)(2)(B), SCRCP (noting a court may refuse to allow a disobedient party to
introduce designated matters into evidence as a sanction for failure to comply with
discovery orders); Barnette v. Adams Bros. Logging, Inc., 355 S.C. 588, 592, 586
S.E.2d 572, 574-75 (2003) (listing factors a trial court must consider before
excluding a witness as follows: "(1) the type of witness involved; (2) the content of
the evidence emanating from the proffered witness; (3) the nature of the failure or
neglect or refusal to furnish the witness'[s] name; (4) the degree of surprise to the
other party, including the prior knowledge of the name of the witness; and (5) the
prejudice to the opposing party" (citing Jumper v. Hawkins, 348 S.C. 142, 152,
558 S.E.2d 911, 916 (Ct. App. 2001))); Historic Charleston Holdings, LLC v.
Mallon, 381 S.C. 417, 435, 673 S.E.2d 448, 457 (2009) ("In deciding what
sanction to impose for failure to disclose evidence during the discovery process
under Rule 37 [of the South Carolina Rules of Civil Procedure (SCRCP)], the trial
court should weigh the nature of the interrogatories, the discovery posture of the
case, willfulness, and the degree of prejudice."); Helms Realty, Inc. v. Gibson-Wall
Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (stating the appellant has
the burden of providing a sufficient record); Rule 210(h), SCACR ("Except as
provided by Rule 212 and Rule 208(b)(1)(C) and (2), the appellate court will not
consider any fact which does not appear in the Record on Appeal."). We hold the
family court did not err in denying Mother's written motion in limine because she
failed to serve Father. See Rule 5(a), SCRCP ("Unless otherwise ordered by the
court because of numerous defendants or other reasons, all . . . written motions,
other than ones which may be heard ex parte . . . shall be served upon each of the
parties of record." (emphasis added)). In addition, Mother failed to include in the
record on appeal the transcript of the argument she made on this issue to the family
court at the hearing. Mother fails to argue how she was prejudiced by Father's
alleged failure to comply with discovery or the family court's admission of
evidence. She contends the family court erred in admitting the testimony of a
witness whose name Father failed to provide in discovery. However, she did not
include this witness's testimony in the record for this court to review for prejudice.
Accordingly, we find Mother did not meet her burden of proving error by the
family court. See Daily v. Daily, 432 S.C. 608, 618, 854 S.E.2d 856, 862 (Ct. App.
2021) ("[T]he appellant bears the burden of convincing the appellate court that the
family court committed an error.").
3. We hold Mother's argument that Father's drug screen should have been
excluded from the record is not preserved. At the end of the hearing, the family
court ordered Father to obtain an alcohol screen and stated it was taking the case
under advisement. Mother did not object to the family court's consideration of the
screen or request that she should be able to cross-examine Father on the results or
call rebuttal witnesses until she raised the issues in her Rule 59(e), SCRCP,
motion. See Spreeuw v. Barker, 385 S.C. 45, 69, 682 S.E.2d 843, 855 (Ct. App.
2009) ("A party cannot use Rule 59(e) to present to the court an issue the party
could have raised prior to judgment but did not." (quoting Hickman v. Hickman,
301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990))).
4. We hold the family court did not err by failing to garnish Father's VA disability
benefits because Father's VA disability benefits could only be garnished if he had
waived his military retirement in order to obtain VA disability compensation. See
42 U.S.C.A. § 659(h)(1)(A)(ii)(V) (2018) (providing VA disability benefits may be
garnished from "a former member of the Armed Forces who is in receipt of retired
or retainer pay if the former member has waived a portion of the retired or retainer
pay in order to receive [the disability benefits]" (emphasis added)). Here, the
record does not demonstrate Father received or waived retirement pay.
5. We hold the family court did not err in declining to find Father in contempt for
failure to pay child support. See Tirado v. Tirado, 339 S.C. 649, 654, 530 S.E.2d
128, 131 (Ct. App. 2000) ("Contempt is a consequence of the willful disobedience
of a court order."); id. ("A willful act is one 'done voluntarily and intentionally
with the specific intent . . . to fail to do something the law requires to be done . . .
.'" (quoting Spartanburg Cnty. Dep't of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83,
370 S.E.2d 872, 874 (1988)). While Father failed to pay child support for the
month he was in jail, he paid almost all of the required support that accrued during
the subsequent months. Father's continued payment of child support following his
release from jail evidences his lack of full payment was not a willful act of
intentionally failing to comply with the order. Mother contends the family court
should not have limited its consideration of the contempt issue for the time period
after April 7, 2017. As the family court found, Father had already been held in
contempt and served jail time for the past arrearage. See State v. Brandt, 393 S.C.
526, 538, 713 S.E.2d 591, 597 (2011) ("The Double Jeopardy Clauses of the
United States and South Carolina Constitutions operate to protect citizens from
being twice placed in jeopardy of life or liberty for the same offense."). Mother
provides no authority for her contention that Father's early release from jail
negated the prior contempt sentence. See Daily, 432 S.C. at 618, 854 S.E.2d at 862
("The appellant bears the burden of convincing the appellate court that the family
court committed an error.").
6. We hold the family court did not err in ordering Father to pay $1,250 in
attorney's fees. See E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816
(1992) (providing when deciding whether to award attorney's fees and costs, a
family court should consider the following factors: "(1) the party's ability to pay
his/her own attorney's fee; (2) beneficial results obtained by the attorney; (3) the
parties' respective financial conditions; [and] (4) effect of the attorney's fee on each
party's standard of living"); Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d
313, 315 (1991) ("The six factors cited by this Court in determining a reasonable
attorney's fee: (1) the nature, extent, and difficulty of the case; (2) the time
necessarily devoted to the case; (3) professional standing of counsel; (4)
contingency of compensation; (5) beneficial results obtained; (6) customary legal
fees for similar services."). Here, Father was already ordered to pay $3,304 in
attorney's fees, Mother was in a superior financial position, and Father was
successful in receiving his requested relief of unsupervised visitation. However,
because Mother was successful in her rule to show cause based on Father's failure
to pay attorney's fees, we find the award of $1,250 in attorney's fees was
reasonable.
AFFIRMED.1
HUFF, WILLIAMS, and GEATHERS, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.