SC Department of Social Services v. Rose ( 2003 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Social Services, Respondent,

v.

Michael D. Rose, Appellant.

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Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court Judge

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Unpublished Opinion No. 2003-UP-443
Submitted April 18, 2003 – Filed June 26, 2003   

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AFFIRMED

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Michael D. Rose, 100 Arthur Drive, of Piedmont, for Appellant.

Stacey L. Kaufman, S.C. Dept. of Social Services, of Greenville, for Respondent.

PER CURIAM: In this paternity and child support action, Appellant Michael D. Rose asks this Court to reverse the trial court’s denial of his motion to restore his case back on the docket of active cases.  We affirm. 

FACTS AND PROCEDURAL HISTORY

The South Carolina Department of Social Services (DSS) initiated this action against Rose on March 19, 1997 seeking to establish paternity and child support for Dorothy E. Rose, d.o.b. June 16, 1990.  Rose failed to respond to the Notice of Financial Responsibility or appear for the negotiation conference/genetic tests and an affidavit of default was filed on April 18, 1997.  An order for default was issued on this same date finding Rose to be the father of the minor child and ordering child support. Rose filed a motion to restore this matter back on the docket of active cases on April 16, 2002.  This motion was denied on May 9, 2002.  This appeal follows.

LAW/ANALYSIS

Rose contends the family court erred in failing to restore his case back on the docket of active cases.  Rose contends that he was not served with a summons and complaint or a notice of financial responsibility on March 19, 1997. 

Rose argues that in March of 1996 he was in an automobile accident that rendered him mentally and physically disabled.  Following this accident, Rose was incarcerated at Broad River Correctional Facility and was released on March 15, 1997.  At the time of his release, Rose argues that he was still unable to care for himself mentally and physically, was confined in a wheelchair, and therefore went to live with his friend Gary Coxs on Old Pelzer Rd., who agreed to care for Rose.  Rose contends that the address listed on the service of process, 9807 Augusta Road, was not his residence and he did not receive the paperwork. 

Rose was rearrested ^[1] on April 1, 1997 and placed in the Pickens County jail.  Rose argues that he was still unable to care for himself physically and mentally. Rose admits that he received some paperwork ^[2] while at the Pickens county jail, but avers he did nor understand the purpose of the papers.  Rose was then tried and convicted on the pending charges and incarcerated in the South Carolina Department of Corrections.  Rose began to recover from his physical ailments and began to walk again, but then he contends he began to have severe mental seizures and was prescribed medication for the seizures.  Rose states that he was placed on 24 hour medical care.  Rose contends that his physical and mental disabilities, and the fact that he is incarcerated, rendered him unable to properly respond to the order of default.  Rose further argues that he never received the Notice of Financial Responsibility and Paternity determination.    Rose is presently incarcerated. 

We find that Rose did not file the proper motion with the trial court to have his case reopened.  Instead of bringing a motion to restore, Rose would have to file a motion to set aside a default judgment under Rule 55, SCRCP which states that “for good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.     

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^[1] Rose states that this arrest stemmed from charges pending prior to his accident. 

^[2] It would appear that Rose was served with the Order of Default while in the Pickens County jail.