Kosciusko v. Parham

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Robert Dale Kosciusko, Appellant,
v.
Alice Witherspoon Wilson Parham, Respondent.
In Re:
Alice Witherspoon Wilson Parham n/k/a Alice
Witherspoon Parham Casey, Respondent,
v.
Robert Dale Kosciusko, Appellant.
Appellate Case No. 2017-000016
Appeal From Richland County
Robert S. Armstrong, Family Court Judge
Opinion No. 5690
Heard October 14, 2019 – Filed November 6, 2019
AFFIRMED
John O. McDougall, of McDougall, Self, Currence &
McLeod, LLP, of Columbia, and Katherine Carruth
Goode, of Winnsboro, both for Appellant.
Whitney Boykin Harrison, of McGowan Hood & Felder,
LLC, of Columbia, for Respondent.
GEATHERS, J.: In this family court action, Robert Kosciusko ("Father") sought a
finding of contempt against Alice Witherspoon Parham Casey ("Mother") for
alleged violations of an order confirming an arbitration award concerning child
custody and visitation. Father argues the family court erred in dismissing his
contempt action by: 1) finding that it lacked subject-matter jurisdiction to enforce
the family court's prior order confirming the arbitration award; 2) failing to find that
Mother was estopped from challenging the award and waived any objection to the
enforceability of the order confirming the award; 3) refusing to enforce the
unappealed order of a different family court judge confirming the arbitration award;
and 4) refusing to enforce the order confirming the arbitration award when South
Carolina's public policy favors alternative dispute resolution and the widespread
practice in the state includes voluntary arbitration of children's issues. As an
additional sustaining ground, Mother argues Father failed to meet his burden of
proof in the underlying rule to show cause motion. We affirm.
FACTS
Mother and Father were married on October 6, 2001.1 During their marriage,
the parties had two children. As a result of the breakdown of the marriage, Mother
and Father separated and entered into a property settlement, support, and custody
agreement that established "true joint custody" of the children; and, on July 15, 2011,
the family court entered an order approving the agreement. The agreement was later
modified by an addendum, which was approved by a supplemental order of the
family court on December 19, 2011. The parties were divorced on July 27, 2012.
In the divorce order, the family court determined that all of the matters within its
jurisdiction, including child custody and visitation, had been resolved by the final
order approving the parties' settlement agreement.
Despite the parties' settlement agreement, child custody and visitation became
contentious issues between Mother, Father, and Father's new wife, Deena Dill. On
July 7, 2015, and August 20, 2015, Mother and Father attempted to mediate issues
involving child custody and visitation, but both attempts were unsuccessful. After
the failed mediations, the parties agreed to submit the issues of "right of first refusal,
holidays, visitation schedule, vacations, and transfers/transportation" to binding
arbitration and obtained a consent order incorporating the agreement. However, the
parties did not seek to alter the original joint-custody award established in the
1
Mother is an attorney and a member of the South Carolina Bar who is in good
standing. Father is an emergency room physician.
settlement agreement. The consent order was issued by the Honorable Monet S.
Pincus on October 14, 2015.
Under the terms of the consent order, the parties agreed to present the
arbitration award to the family court for confirmation pursuant to section 15-48-120
of the South Carolina Code (2005),2 part of the Uniform Arbitration Act, S.C. Code
Ann. § 15-48-10 to -240 (2005). The order provided that "[t]he parties further
agree[d] that such confirmation shall not require a [h]earing, but may be
accomplished based on written application of either party." Additionally, the order
provided that the family court would retain continuing jurisdiction to modify the
arbitration award or any order of the court.
The parties proceeded to binding arbitration, and the arbitrator issued an
award on November 23, 2015. Two provisions of the award are relevant to Father's
contempt action. First, pursuant to the parties' settlement agreement, the arbitrator
determined custody would follow a "week on/week off" schedule. However, the
arbitrator clarified that "[t]he week period shall begin on Monday morning (at school
drop-off or if there is no school at 10:00 a.m.)." Second, the arbitrator determined
"[t]he parent having the children in their custody at the conclusion of their time when
the children are to be returned to school shall have the obligation to timely return the
child/children to school at the conclusion of their time with the child/children if
school is in session." On November 30, 2015, Judge Pincus issued an order
confirming the arbitration award without a hearing. Neither party appealed the order
confirming the award.
On July 5, 2016, Father, acting pro se, filed a complaint before the Honorable
Robert S. Armstrong seeking to hold Mother in contempt for alleged violations of
the arbitration award. In his complaint, Father asserted Mother was in violation of
the provision requiring that the children be timely returned to school because the
children had accumulated five tardies and two absences over the course of a school
year. A rule to show cause was issued by the family court on July 12, 2016. On
September 21, 2016, Mother served Father with her return, in which she argued the
arbitration award was invalid and could not be enforced because it constituted an
improper delegation of the family court's authority. Mother also asserted Father's
contempt action was frivolous and part of a pattern of uncooperative and harassing
2
Section 15-48-120 states, "Upon application of a party, the court shall confirm an
award, unless within the time limits hereinafter imposed grounds are urged for
vacating or modifying or correcting the award, in which case the court shall proceed
as provided in §§ 15-48-130 and 15-48-140."
behavior directed at Mother by Father and Ms. Dill. Mother filed her return with the
court prior to the hearing on September 22, 2016.
At the outset of the hearing, Mother moved to dismiss the contempt action,
arguing there was not a valid order to enforce. In considering the validity of the
order confirming the arbitration award, the family court noted the law regarding
arbitration of children's issues is not clear but indicated that case law "has been
consistent that the court cannot [delegate] its authority on matters concerning
children and custody." The family court ultimately found the order to be
unenforceable because no statute provides the family court with jurisdiction to
submit issues of child custody and visitation to binding arbitration and case law
precludes the family court from delegating such authority to a third party. On
October 6, 2016, the family court entered an order finding there was no valid order
to enforce, dismissing the contempt action with prejudice, and discharging the rule
to show cause.
On October 17, 2016, Father filed a motion to reconsider, alter, or amend the
family court's order. Mother filed a return to the motion on October 28, 2016, and
Father filed a reply. On October 31, 2016, the family court conducted a telephone
conference with the parties regarding the motion to reconsider and entered an order
denying the motion on December 5, 2016. This appeal followed.
ISSUES ON APPEAL
1. Did the family court err in finding that it lacked subject-matter jurisdiction to
enforce the family court's prior order confirming the arbitration award?
2. Did the family court err in failing to find that Mother was estopped from
challenging the award and waived any objection to the enforceability of the
order confirming the award?
3. Did the family court err in refusing to enforce the unappealed order of a
different family court judge confirming the arbitration award?
4. Did the family court err in refusing to enforce the order confirming the
arbitration award when South Carolina's public policy favors alternative
dispute resolution?
5. Did Father meet his burden of proof in the underlying rule to show cause
motion?
STANDARD OF REVIEW
"The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381, 386,
709 S.E.2d 650, 652 (2011). "Our standard of review, therefore, is de novo." Id.;
see also Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) ("[W]e
reiterate that the proper standard of review in family court matters is de novo, rather
than an abuse of discretion . . . ."). Accordingly, "[o]n appeal from the family court,
the appellate court has jurisdiction to find facts in accordance with its own view of
the preponderance of the evidence." S.C. Dep't of Soc. Servs. v. Polite, 391 S.C.
275, 279, 705 S.E.2d 78, 80 (Ct. App. 2011). However, "de novo review neither
relieves an appellant of demonstrating error nor requires [an appellate court] to
ignore the findings of the family court." Lewis, 392 S.C. at 389, 709 S.E.2d at 654.
Rather, an appellate court "will affirm the decision of the family court in an equity
case unless its decision is controlled by some error of law or the appellant satisfies
the burden of showing the preponderance of the evidence actually supports contrary
factual findings by th[e appellate] court." Holmes v. Holmes, 399 S.C. 499, 504, 732
S.E.2d 213, 216 (Ct. App. 2012).
LAW/ANALYSIS
I. Subject-matter jurisdiction and binding arbitration of children's issues
Father argues the family court erred in finding that it lacked subject-matter
jurisdiction to enforce the order confirming the arbitration award because sections
15-48-10 and 63-3-530(A)(39) of the South Carolina Code authorize the arbitration
of domestic matters without providing an exception for issues involving children.
Mother argues the family court properly determined it did not have subject-matter
jurisdiction to enforce the order because binding arbitration of children's issues is
precluded by court rules and laws of the state, rendering the order void ab initio. We
agree with Mother.
"Contempt results from the willful disobedience of an order of the court."
Miller v. Miller, 375 S.C. 443, 454, 652 S.E.2d 754, 759 (Ct. App. 2007) (quoting
Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975)). However, it is
well settled that a party may not be held in contempt for violation of a void order.
See Arnal v. Fraser, 371 S.C. 512, 522, 641 S.E.2d 419, 424 (2007) ("[A party]
cannot be held in contempt for violating an order [that] was void ab initio for a lack
of jurisdiction."); State ex rel. McLeod v. Holcomb, 245 S.C. 63, 66, 138 S.E.2d 707,
708 (1964) (noting that it is a "settled principle that disobedience of a void order or
one issued without jurisdiction is not contempt"); Long v. McMillan, 226 S.C. 598,
609, 86 S.E.2d 477, 482 (1955) ("[D]isobedience of a void Order, Judgment, or
Decree, or one issued without jurisdiction of subject matter and parties litigant, is
not 'contempt[.]'"). "A void judgment is one that, from its inception, is a complete
nullity and is without legal effect . . . ." Katzburg v. Katzburg, 410 S.C. 184, 187,
764 S.E.2d 3, 5 (Ct. App. 2014) (quoting Gainey v. Gainey, 382 S.C. 414, 424, 675
S.E.2d 792, 797 (Ct. App. 2009)). "A judgment of a court without subject[-]matter
jurisdiction is void . . . ." Id. (quoting Gainey, 382 S.C. at 424, 675 S.E.2d at 797).
"Subject[-]matter jurisdiction is the power of a court to hear and determine
cases of the general class to which the proceedings in question belong." S.C. Dep't
of Soc. Servs. v. Meek, 352 S.C. 523, 530, 575 S.E.2d 846, 849 (Ct. App. 2002)
(quoting Pierce v. State, 338 S.C. 139, 150, 526 S.E.2d 222, 227 (2000)). In other
words, "subject[-]matter jurisdiction refers to a court's constitutional or statutory
power to adjudicate a case." Johnson v. S.C. Dep't of Prob., Parole, & Pardon
Servs., 372 S.C. 279, 284, 641 S.E.2d 895, 897 (2007). As such, "[t]he jurisdiction
of a court is determined by the sovereign creating it, and thus the question of the
specific court in which an action is to be brought is determined in the first instance
by reference to local law." Katzburg, 410 S.C. at 187, 764 S.E.2d at 4 (quoting
Peterson v. Peterson, 333 S.C. 538, 548, 510 S.E.2d 426, 431 (Ct. App. 1998)). "The
family court is a statutory court created by the legislature and, therefore, is of limited
jurisdiction." State v. Graham, 340 S.C. 352, 355, 532 S.E.2d 262, 263 (2000); see
also S.C. Const. art V, § 12 ("Jurisdiction . . . in matters appertaining to minors . . .
shall be vested as the General Assembly may provide, consistent with the provisions
of Section 1 of this article."). Thus, the family court's "jurisdiction is limited to that
expressly or by necessary implication conferred by statute." Graham, 340 S.C. at
355, 532 S.E.2d at 263. Accordingly, our supreme court has consistently provided
that "[t]he jurisdictional authority of the [family] court is set forth in the Children's
Code.[3]" Id.; Riggs v. Riggs, 353 S.C. 230, 236 n.3, 578 S.E.2d 3, 6 n.3 (2003)
("[The precursor to section 63-3-530] determines the family court's subject[-]matter
jurisdiction . . . ."), cited with approval in In re Shaquille O'Neal B., 385 S.C. 243,
247, 684 S.E.2d 549, 552 (2009); see also Theisen v. Theisen, 394 S.C. 434, 441,
443 n.4, 716 S.E.2d 271, 274, 275 n.4 (2011) (distinguishing the family court's
subject-matter jurisdiction to hear actions for separate support and maintenance,
established in section 63-3-530(A)(2) of the Children's Code, from the family court's
authority to award separate support and maintenance emanating from section
20-3-130(B)(5) (emphases added)).
3
The Children's Code comprises sections 63-1-10 through 63-21-30. The family
court's jurisdiction in domestic matters is controlled by S.C. Code Ann. § 63-3-530
(2010 & Supp. 2019).
There are two statutes relevant to the family court's jurisdiction to allow
parties to voluntarily engage in binding arbitration. First, pursuant to section
15-48-10(a), part of the Uniform Arbitration Act,
A written agreement to submit any existing controversy to
arbitration or a provision in a written contract to submit to
arbitration any controversy thereafter arising between the
parties is valid, enforceable and irrevocable, save upon
such grounds as exist at law or in equity for the revocation
of any contract.
However, section 15-48-10(b) excepts from the Act
(1) Any agreement or provision to arbitrate in which it is
stipulated that this chapter shall not apply or to any
arbitration or award thereunder;
(2) Arbitration agreements between employers and
employees or between their respective representatives
unless the agreement provides that this chapter shall apply;
provided, however, that . . . workmen's compensation
claims, unemployment compensation claims and
collective bargaining disputes shall [not] be subject to the
provisions of this chapter . . . .
(3) A pre-agreement entered into when the relationship of
the contracting parties is such that of lawyer-client or
doctor-patient and the term "doctor" shall include all those
persons licensed to practice medicine . . . .
(4) Any claim arising out of personal injury, based on
contract or tort, or to any insured or beneficiary under any
insurance policy or annuity contract.
Second, section 63-3-530(A)(39) of the Children's Code provides
The family court has exclusive jurisdiction: to require the
parties to engage in court-mandated mediation pursuant to
Family Court Mediation Rules or to issue consent orders
authorizing parties to engage in any form of alternate
dispute resolution [that] does not violate the rules of the
court or the laws of South Carolina . . . .
Father argues neither statute precludes the family court from issuing a consent
order authorizing parties to engage in binding arbitration regarding children's issues.
Moreover, Father argues that, between the two statutes, section 15-48-10 is
controlling, and the statute allows for any existing controversy to be submitted to
binding arbitration without exception for children's issues. Mother argues section
63-3-530(A)(39) controls and, thus, the family court's jurisdiction to issue consent
orders regarding alternate dispute resolution (ADR) is limited to forms of ADR that
do not violate court rules or the laws of the state. We agree with Mother.
We find two rationales support the notion that section 63-3-530(A)(39) is
controlling in regard to the family court's jurisdiction to allow parties to voluntarily
engage in binding arbitration. First, the act codifying section 63-3-530(A)(39) was
passed after the enactment of the Uniform Arbitration Act. The Uniform Arbitration
Act was enacted in 1978. Act No. 492, 1978 S.C. Acts 1478–1486. In 1992, the
precursor to section 63-3-530 was amended to provide the family court with
jurisdiction to issue consent orders submitting disputes to ADR. Act. No. 441, 1992
S.C. Acts 2326. This section was recodified into the Children's Code in 2008. Act
No. 361, 2008 S.C. Acts 3637. In enacting section 63-3-530(A)(39), the legislature
did not indicate that the Uniform Arbitration Act controlled. Rather, the statutory
provision explicitly provides that the family court's jurisdiction is limited to issuing
consent orders to engage in forms of ADR that do not violate court rules or the laws
of South Carolina. Therefore, we find the legislature intended section
63-3-530(A)(39) to control the family court's jurisdiction regarding ADR. See
Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993) ("A basic
presumption exists that the legislature has knowledge of previous legislation when
later statutes are passed on a related subject.").
As to the second rationale, section 63-3-530(A)(39) is more specific than
section 15-48-10. Section 15-48-10 is a general arbitration statute that establishes
the types of controversies that may be submitted to arbitration. The statute does not
have any language regarding the jurisdiction of the family court. On the other hand,
section 63-3-530(A)(39) specifically establishes the family court's jurisdiction
regarding ADR and the limitations on such jurisdiction. Therefore, section 63-3-
530(A)(39) is controlling. See Capco of Summerville, Inc. v. J.H. Gayle Const. Co.,
368 S.C. 137, 142, 628 S.E.2d 38, 41 (2006) ("Whe[n] there is one statute addressing
an issue in general terms and another statute dealing with the identical issue in a
more specific and definite manner, the more specific statute will be considered an
exception to, or a qualifier of, the general statute and given such effect."); see also
Graham, 340 S.C. at 355, 532 S.E.2d at 263 ("The jurisdictional authority of the
[family] court is set forth in the Children's Code.").
Thus, we find the family court's jurisdiction to authorize parties to engage in
ADR is limited by court rules and the laws of the state as provided in section
63-3-530(A)(39) ("The family court has exclusive jurisdiction: to . . . issue consent
orders authorizing parties to engage in any form of alternate dispute resolution [that]
does not violate the rules of the court or the laws of South Carolina . . . .").
Therefore, in determining whether the family court had subject-matter jurisdiction
to sanction or approve binding arbitration of issues involving custody and visitation,
we must determine whether binding arbitration of such issues violates court rules or
established law. We will address each question in turn.
a. Court rules
Father argues the family court erred in finding it did not have subject-matter
jurisdiction to enforce the order because no rule of court prohibits the submission of
children's issues to binding arbitration. Specifically, Father argues 1) Rule 3(a),
SCADR expressly authorizes parties to consent to voluntary, binding arbitration of
any class of issue in domestic relations cases; and 2) Rule 4(d)(5), SCADR does not
expressly prohibit issues related to children from being arbitrated. Mother argues
Rule 4(d)(5) authorizes the family court to submit only issues of property and
alimony to binding arbitration. We agree with Mother.
"In interpreting the meaning of [procedural rules], the [c]ourt applies the same
rules of construction used to interpret statutes." Ex parte Wilson, 367 S.C. 7, 15,
625 S.E.2d 205, 209 (2005). "If a rule's language is plain, unambiguous, and
conveys a clear meaning, interpretation is unnecessary and the stated meaning
should be enforced." Id. "Courts should consider not only the particular clause in
which a word may be used, but the word and its meaning in conjunction with the
purpose of the whole rule and the policy of the rule." Id. "In construing a rule,
language in the rule must be read in a sense [that] harmonizes with its subject matter
and accords with its general purpose." Id.
We disagree with Father's contention that Rule 3, SCADR and its exceptions
apply exclusively to binding arbitration. The procedures for mediation and
arbitration are controlled by the South Carolina Rules of Alternative Dispute
Resolution.4 See Rule 24, SCADR ("These rules shall apply to cases filed in . . .
family court . . . ."). Rule 3 provides which actions are subject to ADR. Pursuant to
Rule 3(a), SCADR,
4
While the ADR rules have recently been updated, we refer to the version of the
rules in place at the time the consent order was filed.
all contested issues in domestic relations actions filed in
family court, except for cases set forth in Rule 3(b) or (c),
are subject to court-ordered mediation under these rules
unless the parties agree to conduct an arbitration. The
parties may . . . mediate, arbitrate or submit to early
neutral evaluation at any time.
Rule 3(b), SCADR provides nine types of cases, matters, and proceedings that are
not subject to any form of ADR. Additionally, Rule 3(c), SCADR provides that any
action not subject to ADR may be ordered to mediation by the chief administrative
judge of the court. Therefore, Rule 3 generally pertains to mediation and arbitration,
but does not expressly authorize the arbitration of children's issues.
Moreover, while Rule 3 generally provides which actions are subject to or
exempt from ADR, Rule 4(d) specifically provides which "neutrals"5 may be
selected or appointed in family court litigation. Pursuant to Rule 4(d)(2), "[i]f issues
are in dispute . . . the parties must mediate those issues prior to the scheduling of a
hearing on the merits; provided, however, parties may submit the issues of property
and alimony to binding arbitration in accordance with subparagraph (5)." (emphases
added). Rule 4(d)(5) provides, "In lieu of mediation, the parties may elect to submit
issues of property and alimony to binding arbitration in accordance with the
Uniform Arbitration Act, S.C. Code § 15-48-10 et seq., or submit all issues to early
neutral evaluation[6] pursuant to these rules."7 (emphases added). Notably and
counter to Rule 4(d)(2), which expressly permits the submission of property and
alimony issues to binding arbitration, Rule 4(d)(1), SCADR provides "[i]f there are
unresolved issues of custody or visitation, the court may . . . order an early mediation
of those issues upon motion of a party or upon the court's own motion." (emphasis
added).
5
A "Neutral" is defined as "[a] mediator, arbitrator or evaluator." Rule 2(g),
SCADR.
6
"Early Neutral Evaluation" is "[a]n informal process in which a third-party
evaluator provides a non-binding evaluation of the matters in controversy, assists the
parties in identifying areas of agreement, offers case planning suggestions, and
assists in settlement discussions." Rule 2(e), SCADR.
7
We note the language in Rule 4(d)(5) regarding the submission of issues involving
property and alimony to binding arbitration is consistent with the analysis in Swentor
v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App. 1999), discussed further infra.
We do not agree that Rule 4(d)(5)'s silence regarding binding arbitration of
children's issues is a permissive grant of authority for the family court to submit such
issues to binding arbitration, as Father asserts. First, we note Rule 4(d)(2) provides
that, if there are disputed issues in family court cases subject to ADR, the parties
must mediate those issues prior to scheduling a hearing on the merits. Thus,
Rule 4(d)(2) establishes a general requirement that such cases be mediated before
proceeding to formal litigation. See Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d
739, 743 (2002) ("[U]se of words such as 'shall' or 'must' indicates the []intent to
enact a mandatory requirement."). However, Rules 4(d)(2) and 4(d)(5) provide an
exception to this requirement for issues of property and alimony by indicating that
parties may submit such issues to binding arbitration in lieu of mediation.
Accordingly, we find the use of the word may in this context is a grant of permission
to engage in binding arbitration rather than mediation, which is limited to the two
issues specifically referenced. See Kennedy v. S.C. Ret. Sys., 345 S.C. 339, 352–53,
549 S.E.2d 243, 250 (2001) ("The use of the word 'may' signifies permission and
generally means that the action spoken of is optional or discretionary unless it
appears to require that it be given any other meaning in the present statute."
(emphasis added)). Therefore, issues of alimony and property are the only issues
which may be submitted to binding arbitration in lieu of mandatory mediation.
Second, we do not agree that Rule 4(d)(5)'s silence as to children's issues is
an implicit grant of authority, as the rule drafters could have included such issues in
their grant of authority had they intended such issues to be subject to binding
arbitration. Notably, Rule 4(d)(1) specifically provides that unresolved issues of
custody or visitation may be ordered to early mediation. Moreover, the second part
of Rule 4(d)(5) provides that the parties may elect to submit all issues to early neutral
evaluation. Conversely, Rule 4(d)(5) provides that issues of property and alimony
may be submitted to binding arbitration. We believe had the rule drafters intended
to subject children's issues to binding arbitration, they would have used the term "all
issues" as they did in regard to early neutral evaluation in Rule 4(d)(5), or included
specific language as they did in regard to early mediation in Rule 4(d)(1). Therefore,
we find Rule 4(d)(5)'s silence regarding the submission of children's issues to
binding arbitration is intended to preclude such issues from being submitted to
binding arbitration. See Riverwoods, LLC v. Cty. of Charleston, 349 S.C. 378, 384,
563 S.E.2d 651, 655 (2002) ("The canon of construction 'expressio unius est exclusio
alterius' or 'inclusio unius est exclusio alterius' holds that 'to express or include one
thing implies the exclusion of another, or of the alternative.'" (quoting Hodges v.
Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000))).
Based on the foregoing, we find the submission of children's issues to binding
arbitration is precluded by the South Carolina Rules of Alternative Dispute
Resolution.
b. State law
Father argues the family court erred in finding that binding arbitration of
children's issues constitutes a delegation of authority to a third party regarding issues
of child welfare, which is precluded by precedent. Rather, Father argues, the parties
voluntarily agreed to submit their dispute to binding arbitration and the court
properly exercised its authority in authorizing the arbitration. Mother argues the
family court correctly determined that binding arbitration amounted to an improper
delegation of the family court's authority. We agree with Mother.
We find the submission of children's issues to binding arbitration would be an
improper delegation of the family court's authority and violative of South Carolina
law because the procedures mandated by the Uniform Arbitration Act would prevent
the family court from determining whether an award is in the child's best interest.
Under the Uniform Arbitration Act, courts have limited powers when presented with
an arbitration award. Pursuant to section 15-48-120, "Upon application of a party,
the court shall confirm an [arbitration] award, unless . . . grounds are urged for
vacating or modifying or correcting the award, in which case the court shall proceed
as provided in §§ 15-48-130 and 15-48-140." (emphases added). Section
15-48-1308 exclusively provides five grounds regarding the fairness of the
arbitration proceedings under which a binding arbitration award may be vacated.
Additionally, under section 15-48-140,9 a court may modify or correct
miscalculations, mistakes, awards on matters not submitted to arbitration, or the
form of an award, so long as the modification does not affect the underlying merits
of the award. However, neither statute provides any merit-based grounds, such as a
child's best interest, for modifying or vacating an award.
In Swentor v. Swentor, this court explained the limited powers of the family
court when presented with an arbitration award regarding alimony and equitable
apportionment of property obtained pursuant to the Uniform Arbitration Act. 336
S.C. at 481–83, 520 S.E.2d at 335–36. The court noted, "the general rule is that
agreements regarding alimony, child support, or property issues must be presented
to the family court for approval." Id. at 481, 520 S.E.2d at 335. However, the court
concluded that the family court's "traditional power to approve property and
8
S.C. Code Ann. § 15-48-130 (2005).
9
S.C. Code Ann. § 15-48-140 (2005).
separation agreements, which includes the power to consider the substantive fairness
of the agreement, simply does not extend to arbitration agreements and awards
presented to the family court[,]" because "[a]n inquiry into the substantive fairness
of an agreement . . . would be inconsistent with the Arbitration Act[]" and "would
severely undermine the finality of arbitration agreements." Id. at 482–83, 520
S.E.2d at 336 (emphases added). The court further explained,
Given [the court's] determination that the Arbitration Act
and the family court's general power to review and
approve agreements in domestic relations cases are
fundamentally incompatible, [the court] conclude[s] that
the Arbitration Act prohibits the family court from
exercising this power when presented with arbitration
agreements. This [c]ourt must presume that, at the time
the Arbitration Act was enacted, the legislature was aware
of the family court's power to review and approve property
and separation agreements. If the legislature had intended
family courts to exercise this power over arbitration
agreements and awards, it would have either exempted
domestic relations matters from the scope of the Act, or it
would have expressly provided that arbitration awards
involving domestic relations matters could be set aside if
the family court determined that the award was unfair.
Instead, we conclude that the purpose and framework of
the Arbitration Act, as well as the limited grounds upon
which the Act permits an arbitration award to be set aside,
reveal the legislature's intention that the agreements to
arbitrate and the resulting arbitration awards be treated the
same in family court as in any other court.
Id. at 484–85, 520 S.E.2d at 337 (footnote and citations omitted).
Thus, the court held that the family court may 1) modify or correct an award
only under section 15-48-140; 2) vacate the award under section 15-48-130; or 3)
vacate the award under the non-statutory ground of "manifest disregard or perverse
misconstruction of the law." Id. at 485–86, 520 S.E.2d at 338 (quoting Trident Tech.
Coll. v. Lucas & Stubbs, Ltd., 286 S.C. 98, 108, 333 S.E.2d 781, 787 (1985)).
"Otherwise, the family court must confirm the arbitration award." Id. at 486, 520
S.E.2d at 338. However, in a footnote, the court indicated its "holding . . . is limited
to arbitration agreements resolving issues of property or alimony, and does not apply
to agreements involving child support or custody." Id. at 486 n.6, 520 S.E.2d at 338
n.6 (emphasis added).
Consistent with Swentor, we do not believe the limited powers of a court in
regard to a binding arbitration award can be reconciled with our state's precedent
requiring that the family court decide children's issues in the best interest of the
children. Our courts have consistently held the "[f]amily [c]ourt is vested with the
exclusive jurisdiction to ensure that, in all matters concerning a child, the best
interest of the child is the paramount consideration." Harris v. Harris, 307 S.C. 351,
353, 415 S.E.2d 391, 393 (1992); see also In re Doran, 129 S.C. 26, 31, 123 S.E.
501, 503 (1924) ([T]he fundamental principle [is] that the controlling consideration
is the best interests of the child . . . ."); 67A C.J.S. Parent & Child § 55, Westlaw
(database updated September 2019) ("It is the child's best interests that are
paramount."). Accordingly, the family court is charged with making "the final
custody determination in the best interest of the child based upon the evidence
presented." S.C. Code Ann. § 63-15-230 (Supp. 2019); see also 67A C.J.S. Parent
& Child § 60, Westlaw (database updated September 2019) ("A court errs if it
merely follows an agreement of the parties as to the custody of the children without
receiving evidence that it would, in fact, be in the best interests of the children.").
Similarly, "[t]he welfare and best interests of the child are the primary considerations
in determining visitation." Smith v. Smith, 386 S.C. 251, 272, 687 S.E.2d 720, 731
(Ct. App. 2009). As such, this court has held, "[i]n the final analysis[,] it is the
family court [that] is charged with the authority and responsibility for protecting the
interest of minors involved in litigation, not the guardian or any other person whom
the court may appoint to assist it." Stefan v. Stefan, 320 S.C. 419, 422, 465 S.E.2d
734, 736 (Ct. App. 1995) (emphasis added); see also 67A C.J.S. Parent & Child
§ 60 ("[A family] court has an independent responsibility to determine questions of
custody and visitation of minor children according to their best interests, which
responsibility cannot be controlled by an agreement or stipulation of the parties.").
Furthermore, this court has "caution[ed] family court judges NOT to delegate any
responsibility to a [third party] in regard to visitation of children with parents[,]" but
"to strictly adhere to the holding in Stefan." Hardy v. Gunter, 353 S.C. 128, 138,
577 S.E.2d 231, 236 (Ct. App. 2003).
Because the family court may not delegate its authority to ensure that issues
regarding children are resolved in their best interest, our supreme court has provided
that family courts "have continuing jurisdiction to do whatever is in the best interests
of the child regardless of what the separation agreement specifies." Moseley v.
Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983); see also Lunsford v.
Lunsford, 277 S.C. 104, 105, 282 S.E.2d 861, 862 (1981) ("No agreement can
prejudice the rights of children."). This court clarified the holding in Moseley by
stating "Moseley makes it clear that except for matters relating to children, over
which the family court retains jurisdiction to do whatever is in their best interest,
parties to a separation agreement may 'contract out of any continuing judicial
supervision of their relationship by the court.'" Ex Parte Messer, 333 S.C. 391, 395,
509 S.E.2d 486, 487–88 (Ct. App. 1998) (emphasis added) (quoting Moseley, 279
S.C. at 353, 306 S.E.2d at 627). "Therefore, parties to a separation agreement may
agree to submit all disputes, other than those involving their children, to arbitration
and thus deprive the family court of its traditional powers of enforcement over those
disputes." Id. at 395, 509 S.E.2d at 488 (emphasis added).
Accordingly, we find that our state's precedent precludes the submission of
issues involving child custody and visitation to binding arbitration as such action
would constitute an improper delegation of the family court's authority to determine
issues in the best interest of the child. See Stefan, 320 S.C. at 422, 465 S.E.2d at 736
("In the final analysis[,] it is the family court [that] is charged with the authority and
responsibility for protecting the interest of minors involved in litigation, not the
guardian or any other person whom the court may appoint to assist it." (emphasis
added)); 67A C.J.S. Parent & Child § 60 ("[A family] court has an independent
responsibility to determine questions of custody and visitation of minor children
according to their best interests, which responsibility cannot be controlled by an
agreement or stipulation of the parties." (emphasis added)). As explained in
Swentor, the family court has four options when presented with an award obtained
under the Uniform Arbitration Act: 1) confirm the award; 2) modify or correct the
award under section 15-48-140; 3) vacate the award under section 15-48-130; or 4)
vacate the award on the ground of manifest disregard or perverse misconstruction of
the law. Notably, section 15-48-140 permits the court to correct only
miscalculations, mistakes, awards on matters not submitted to arbitration, or the
form of an award, so long as the modification does not affect the underlying merits
of the award. Moreover, all of the grounds for vacating an arbitration award under
section 15-48-130 involve the fairness of the arbitration proceedings themselves, not
the merits of the award. Therefore, if child custody and visitation were subject to
binding arbitration, the family court would not have the statutory authority to vacate
or modify the arbitrator's award based on a finding that it was not in the best interest
of the children.10 See Moseley, 279 S.C. at 351, 306 S.E.2d at 626 ("[F]amily courts
10
It would not constitute binding arbitration if the family court could modify an
arbitration award in the child's best interest. See Swentor, 336 S.C. at 484, 520
S.E.2d at 337 ("Given our determination that the Arbitration Act and the family
court's general power to review and approve agreements in domestic relations cases
have continuing jurisdiction to do whatever is in the best interests of the child
regardless of what the separation agreement specifies."); Lunsford, 277 S.C. at 105,
282 S.E.2d at 862 ("No agreement can prejudice the rights of children."). Thus,
allowing an arbitrator to make the final determination regarding issues involving
custody and visitation constitutes an improper delegation of the family court's
authority. See Stefan, 320 S.C. at 422, 465 S.E.2d at 736 ("In the final analysis[,] it
is the family court [that] is charged with the authority and responsibility for
protecting the interest of minors involved in litigation, not the guardian or any other
person whom the court may appoint to assist it." (emphases added)); Hardy, 353 S.C.
at 138, 577 S.E.2d at 236 (cautioning "family court judges NOT to delegate any
responsibility to a [third party] in regard to visitation of children with parents");
Messer, 333 S.C. at 395, 509 S.E.2d at 488 ("[P]arties to a separation agreement may
agree to submit all disputes, other than those involving their children, to arbitration
and thus deprive the family court of its traditional powers of enforcement over those
disputes." (emphasis added)).
The problems with submitting children's issues to binding arbitration are on
full display in the case at bar. Here, the arbitrator's award was confirmed by the
family court without a determination that it was in the best interest of the children.
See S.C. Code Ann. § 63-15-230 ("The court shall make the final custody
determination in the best interest of the child based upon the evidence presented.");
see also 67A C.J.S. Parent & Child § 60 ("A court errs if it merely follows an
agreement of the parties as to the custody of the children without receiving evidence
that it would, in fact, be in the best interests of the children."). As a result, the
arbitrator, rather than the family court, ultimately resolved the issues of custody and
visitation. See Stefan, 320 S.C. at 422, 465 S.E.2d at 736 ("In the final analysis[,] it
is the family court [that] is charged with the authority and responsibility for
protecting the interest of minors involved in litigation, not the guardian or any other
person whom the court may appoint to assist it." (emphases added)); Hardy, 353 S.C.
at 138, 577 S.E.2d at 236 (cautioning "family court judges NOT to delegate any
responsibility to a [third party] in regard to visitation of children with parents").
are fundamentally incompatible, we conclude that the Arbitration Act prohibits the
family court from exercising this power when presented with arbitration
agreements." (emphases added)); id. at 485, 520 S.E.2d at 337 ("[T]he purpose and
framework of the Arbitration Act, as well as the limited grounds upon which the Act
permits an arbitration award to be set aside, reveal the legislature's intention that the
agreements to arbitrate and the resulting arbitration awards be treated the same in
family court as in any other court." (emphasis added)).
Based on the foregoing, we find the submission of issues involving custody
and visitation to binding arbitration violates the established law of South Carolina,
which prohibits the family court from delegating its authority to determine children's
issues in the best interest of the children.
c. Effect on the order
Because court rules and our state's established law preclude the submission of
children's issues to binding arbitration, the family court did not have subject-matter
jurisdiction to sanction binding arbitration of issues involving custody and visitation
or to confirm the arbitrator's award. See Graham, 340 S.C. at 355, 532 S.E.2d at 263
("The jurisdictional authority of the [family] court is set forth in the Children's
Code."); see also S.C. Code Ann. § 63-3-530(A)(39) ("The family court has
exclusive jurisdiction: to . . . issue consent orders authorizing parties to engage in
any form of alternate dispute resolution [that] does not violate the rules of the court
or the laws of South Carolina . . . ." (emphasis added)); State v. Bridgers, 329 S.C.
11, 14, 495 S.E.2d 196, 197–98 (1997) ("The General Assembly is presumed to be
aware of the common law[.]"). As a result, the order confirming the arbitrator's
award is void ab initio. See Katzburg, 410 S.C. at 187, 764 S.E.2d at 5 ("A judgment
of a court without subject[-]matter jurisdiction is void . . . ." (quoting Gainey, 382
S.C. at 424, 675 S.E.2d at 797)). Thus, the family court properly found that it lacked
subject-matter jurisdiction to enforce the order and arbitration award through
contempt proceedings. See Arnal, 371 S.C. at 522, 641 S.E.2d at 424 ("[A party]
cannot be held in contempt for violating an order [that] was void ab initio for a lack
of jurisdiction."); Long, 226 S.C. at 609, 86 S.E.2d at 482 ("[D]isobedience of a void
Order, Judgment, or Decree, or one issued without jurisdiction of subject matter and
parties litigant, is not 'contempt[.]'"); Katzburg, 410 S.C. at 187, 764 S.E.2d at 5 ("A
court[] lacking subject[-]matter jurisdiction[] cannot enforce its own decrees."
(quoting Hallums v. Bowens, 318 S.C. 1, 3, 428 S.E.2d 894, 895 (Ct. App. 1993))).
II. Preservation
We find Father's remaining issues have not been preserved for appellate
review, as they were not raised to and ruled upon by the family court.11
11
Father asserts the rules of preservation should be loosely applied to his arguments
because he did not have time to adequately prepare for Mother's defenses at the rule
to show cause hearing, as Mother served him with her return the day before the
hearing. We reject this argument as Mother served Father with her return in
accordance with the South Carolina Rules of Family Court. See Rule 14(f), SCRFC
"In order for an issue to be preserved for appellate review, it must have been
raised to and ruled upon by the [family court]." State v. Dunbar, 356 S.C. 138, 142,
587 S.E.2d 691, 693 (2003). "Issues not raised and ruled upon in the [family] court
will not be considered on appeal." Id. at 142, 587 S.E.2d at 693–94. "Error
preservation rules do not require a party to use the exact name of a legal doctrine in
order to preserve an issue for appellate review." State v. Brannon, 388 S.C. 498,
502, 697 S.E.2d 593, 595 (2010). "Instead, a litigant is only required to fairly raise
the issue to the [family] court, thereby giving it an opportunity to rule on the issue."
Id. at 502, 697 S.E.2d at 595–96. However, "[a]n issue may not be raised for the
first time in a motion to reconsider." Johnson v. Sonoco Prods. Co., 381 S.C. 172,
177, 672 S.E.2d 567, 570 (2009); Dixon v. Dixon, 362 S.C. 388, 399, 608 S.E.2d
849, 854 (2005) (holding an issue raised for the first time in a Rule 59, SCRCP
motion is not preserved for appellate review). Conversely, "[i]f the losing party has
raised an issue in the lower court, but the court fails to rule upon it, the party must
file a motion to alter or amend the judgment in order to preserve the issue for
appellate review." I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526
S.E.2d 716, 724 (2000).
Estoppel and Waiver
First, Father argues Mother waived any challenge to the family court's
subject-matter jurisdiction by voluntarily participating in the arbitration. Father
further argues Mother is estopped from challenging the validity of the order
confirming the award because she procured and accepted the benefits of arbitration.
Mother argues this issue has not been preserved for appellate review because Father
raised it for the first time in his Rule 59(e), SCRCP motion. Father argues this issue
is preserved because Father articulated the basis for estoppel—that Mother agreed
to the arbitration—at the hearing before the family court.
At the outset, we note that Father argues only that he articulated the basis for
estoppel before the family court, but does not contend that he articulated the basis
for waiver.12 Regarding estoppel, as Father notes in his brief, to be estopped from
("If at the contempt proceeding[,] the responding party intends to seek counsel fees
and costs, or other appropriate relief permitted by law, then he shall serve a return
to the rule to show cause prior to the commencement of the hearing, unless a Family
Court judge requires a return to be served at some other time." (emphases added)).
12
Regardless, subject-matter jurisdiction cannot be waived. See Johnson, 372 S.C.
at 284, 641 S.E.2d at 897 ("[L]ack of subject[-]matter jurisdiction in a case may not
be waived and ought to be taken notice of by an appellate court."); State v. Gentry,
challenging the validity of an order or judgment, a party must accept the benefits of
the void judgment. See Edwards v. Edwards, 254 S.C. 466, 470, 176 S.E.2d 123,
125 (1970) ("Since he proposed the transfer of the property and has accepted the
benefits accruing to him therefrom, he is now estopped to assert the invalidity of the
judgment." (emphasis added)); Scheper v. Scheper, 125 S.C. 89, 105, 118 S.E. 178,
184 (1923) ("Even whe[n] one who did not procure it accepts the benefits of a void
judgment, he is estopped to assert its invalidity." (emphasis added)). Here, while he
was before the family court, Father never argued that Mother had accepted the
benefits of the order. Rather, Father first raised this precise argument in his Rule
59(e) motion. See Sonoco Prods. Co., 381 S.C. at 177, 672 S.E.2d at 570 ("An issue
may not be raised for the first time in a motion to reconsider."). Accordingly, this
issue has not been preserved for appellate review.
Law of the Case
Second, Father argues the family court erred in refusing to enforce the
unappealed order confirming the arbitration award because it became the law of the
case. Mother argues this issue has not been preserved for appellate review because
Father raised it for the first time in his Rule 59(e), SCRCP motion. Father argues
this issue is preserved because he argued to the family court that the arbitration
award had been approved by another judge.
At the hearing, Father indicated the agreement to arbitrate and the arbitration
award had both been adopted as orders of the family court. However, Father did not
provide that the orders were unappealed or argue that they were binding. As such,
Father's reference to the prior orders was likely viewed by the family court in the
context of providing the procedural posture for the action, not as an argument
regarding the law of the case. Consequently, we do not find that Father raised this
issue with "sufficient specificity" to allow the family court to rule on it. See
Brannon, 388 S.C. at 502, 697 S.E.2d at 595–96 ("[A] litigant is only required to
fairly raise the issue to the [family] court, thereby giving it an opportunity to rule on
the issue." (emphasis added)); S.C. Dep't of Transp. v. First Carolina Corp. of S.C.,
372 S.C. 295, 302, 641 S.E.2d 903, 907 (2007) (noting that an issue must be raised
363 S.C. 93, 100, 610 S.E.2d 494, 498 (2005) ("[S]ubject-matter jurisdiction,
because it involves a court's power to hear a case, can never be forfeited or waived."
(emphasis added) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002))).
with "sufficient specificity" to be preserved for appellate review). Thus, the issue
has not been preserved for appellate review.13
Public Policy
Finally, Father argues the family court erred in refusing to enforce the
arbitration award because South Carolina's public policy strongly favors resolving
issues through ADR and the validity of arbitration agreements. Mother argues this
issue has not been preserved for appellate review because Father raised it for the first
time in his Rule 59(e), SCRCP motion. Father argues he preserved the issue for
appeal by invoking policy considerations in his argument that the arbitration award
should not be set aside, specifically, the length of time and monetary expense, the
need to not undo the results, and the best interest of the children. We disagree with
Father.
Because the family court did not rule on any public policy considerations,
Father was required to raise these issues in his Rule 59(e) motion. See I'On, 338
S.C. at 422, 526 S.E.2d at 724 ("If the losing party has raised an issue in the lower
court, but the court fails to rule upon it, the party must file a motion to alter or amend
the judgment in order to preserve the issue for appellate review." (emphasis added));
see also Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004)
("A party must file such a motion when an issue or argument has been raised, but
not ruled on, in order to preserve it for appellate review." (second emphasis added)).
However, Father's Rule 59(e) motion made no mention of South Carolina's public
policy favoring alternative dispute resolution and the validity of arbitration
agreements. Rather, Father baldly asserted that a ruling precluding parties from
submitting issues of custody and visitation to binding arbitration "would
dramatically reshape [f]amily [c]ourt practice in this state" and cause a backlog of
cases with an abundance of issues that must be decided on the record. We do not
find that this assertion equates to an argument that the family court's ruling was
contrary to South Carolina's public policy favoring ADR. Accordingly, this issue
has not been preserved for appellate review.
III. Burden of proof for contempt
13
Regardless, a judge is not bound to enforce a prior order that is void ab initio for
want of subject-matter jurisdiction. See Katzburg, 410 S.C. at 187, 764 S.E.2d at 5
("A court[] lacking subject[-]matter jurisdiction[] cannot enforce its own decrees."
(emphases added) (quoting Hallums, 318 S.C. at 3, 428 S.E.2d at 895)).
As an additional sustaining ground, Mother argues the family court's order
should be affirmed because Father did not satisfy his burden of proof. However, we
need not address this issue as our finding that the family court did not have
subject-matter jurisdiction to enforce the order confirming the arbitration award is
dispositive in this case. See I'On, 338 S.C. at 420, 526 S.E.2d at 723 ("It is within
the appellate court's discretion whether to address any additional sustaining
grounds."); Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (providing that an appellate court need not address remaining
issues when resolution of a prior issue is dispositive).
CONCLUSION
Based on the foregoing, we hold that the family court does not have
subject-matter jurisdiction to sanction or approve binding arbitration of children's
issues. Accordingly, we find the family court properly determined that it did not
have subject-matter jurisdiction to enforce the arbitration award. Therefore, we
affirm the family court's order dismissing the contempt action.
AFFIRMED
SHORT and THOMAS, JJ., concur.