Branton v. Corbitt ( 2014 )

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
Alice Branton, Respondent,
v.
Nolan Corbitt, Appellant.
Appellate Case No. 2013-000790
Appeal From Aiken County
Robert E. Guess, Family Court Judge
Unpublished Opinion No. 2014-UP-395
Heard October 9, 2014 – Filed November 12, 2014
AFFIRMED AS MODIFIED
Leon Edward Green, of Leon E. Green, PC, of Aiken, for
Appellant.
Gregory P. Harlow, of Harlow Law Offices, PA, of
Aiken, and Douglas Kosta Kotti, of Columbia, for
Respondent.
Patrick A. McWilliams, of Aiken, for Guardian ad Litem.
PER CURIAM: Nolan Corbitt (Father) appeals the family court's order regarding
his parental rights to his minor daughter (Child). Father argues the family court
lacked jurisdiction and erred in (1) finding his termination of parental rights (TPR)
consent form was valid; (2) finding his TPR consent form could not be withdrawn;
and (3) failing to find his TPR consent form was expired. We affirm as modified.
On appeal from the family court, this court reviews factual and legal issues de
novo. Argabright v. Argabright, 398 S.C. 176, 179, 727 S.E.2d 748, 750 (2012).
This broad standard of review does not require the appellate court to disregard the
factual findings of the family court or ignore the fact that the family court is in the
better position to assess the credibility of the witnesses. DiMarco v. DiMarco, 399
S.C. 295, 299, 731 S.E.2d 617, 619 (Ct. App. 2012). An appellate court will affirm
the decision of the family court unless the decision is controlled by an error of law
or the appellant satisfies the burden of showing the preponderance of the evidence
actually supports contrary factual findings by the appellate court. Id.Having conducted a de novo review of the record, we find the family court had
jurisdiction to determine whether Father's TPR consent form was valid. The matter
at issue before the family court was Alice Branton's (Mother) action for
termination of Father's parental rights. Although Mother's TPR cause of action
was dismissed, we find Father's TPR consent form was properly considered by the
court in determining issues regarding visitation, child support, Child's name
change, and restraining orders. See S.C. Code Ann. § 63-3-530(A)(4) (2010) ("The
family court has exclusive jurisdiction . . . to hear and determine actions for
termination of parental rights, whether such action is in connection with an action
for adoption or apart therefrom.").
As to Father's argument the family court erred in finding his TPR consent form
was valid, we find Father's argument regarding the lack of specific adoption
language in the TPR consent form is not preserved for our review. Father did not
raise this argument to the family court, and the family court did not rule on this
issue in its final order. Furthermore, Father did not file a Rule 59(e), SCRCP,
motion requesting a ruling from the court. See Washington v. Washington, 308
S.C. 549, 551, 419 S.E.2d 779, 781 (1992) (holding when an appellant neither
raises an issue at trial nor through a Rule 59(e), SCRCP, motion to amend, the
issue is not presented properly to an appellate court for review); Doe v. Doe, 370
S.C. 206, 212, 634 S.E.2d 51, 54 (Ct. App. 2006) ("To preserve an issue for
appellate review, the issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial court.").
As to Father's argument the family court erred in finding his TPR consent form
could not be withdrawn, we disagree. Reviewing the evidence, we find Father's
consent was voluntarily given and was not made under duress or coercion. Father
executed the TPR consent form in the presence of two witnesses, including
attorney William Bruner. Moreover, both witnesses to Father's consent certified in
writing that the provisions of the document were discussed with Father and opined
Father's consent was given freely and voluntarily.
As to Father's argument the family court erred in failing to find his TPR consent
was expired, we find this issue is not preserved for our review. It does not appear
this issue was raised to the family court. At the final hearing, Father asserted that
pursuant to section 63-9-750 of the South Carolina Code (2010), adoptions had 180
day time limits; however, he did not argue, as he does on appeal, that the 120 day
rule in section 63-7-2530(C) of the South Carolina Code (Supp. 2013) applied.
The family court did not rule on this issue in its final order and Father did not file a
Rule 59(e), SCRCP, motion requesting a ruling from the court. See Washington,
308 S.C. at 551, 419 S.E.2d at 781 (holding when an appellant neither raises an
issue at trial nor through a Rule 59(e), SCRCP, motion to amend, the issue is not
presented properly to an appellate court for review); Doe, 370 S.C. at 212, 634
S.E.2d at 54 ("To preserve an issue for appellate review, the issue cannot be raised
for the first time on appeal, but must have been raised to and ruled upon by the trial
court.").
Thus, we hold the family court properly considered the TPR consent form in ruling
on the issues addressed in the order on appeal. We do not express any opinion on
how, if at all, the TPR consent form may be used in any future proceeding.
Moreover, because Father's parental rights have not been terminated, the family
court's finding that Father shall not be required to be notified in the event of an
adoption is improper. Therefore, the family court's finding that Father shall not
receive notification of any adoption proceedings is hereby vacated.
Accordingly, the order of the family court is
AFFIRMED AS MODIFIED.
FEW, C.J., THOMAS and LOCKEMY, JJ., concur.