Recent Workers Compensation opinion may impact child custody cases

Posted Wednesday, June 13th, 2018 by Gregory Forman
Filed under Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The June 6, 2018 Court of Appeals opinion in York v. York, 424 S.C. 280, 818 S.E.2d 215 (Ct. App. 2018), addresses the issue of who is a dependent for the purpose of benefits under South Carolina’s Workers Compensation Act. In doing so, it analyzing an issue that may impact child custody cases.

In York, Yvonne Burns sought dependancy benefits from the Workers Compensation Commission when her live-in boyfriend ,Timothy York, died in a work-related accident. In her application she claimed to be Mr. York’s common law wife or, alternatively, a dependent under sections 42-9-120 or 42-9-130 of the South Carolina Code.

The facts, as cited in the Court of Appeals opinion, show little evidence that a common law marriage was established. The Workers Compensation commission found that Yvonne was a dependant of Timothy but still refused to award her benefits.

The single commissioner noted South Carolina’s statutory prohibition against fornication and cited Day v. Day, 216 S.C. 334, 58 S.E.2d 83 (1950), as dispositive. The Day court held “it was not the intention of the legislature to permit a woman to be classed and considered as a dependent within the meaning of [the] Act who lives in [an] illicit relationship with a man to whom she is not legally married.” Id. at 345, 58 S.E.2d at 88. The single commissioner held, as our supreme court held in Day, an individual cannot be a dependent if he or she is in an illicit relationship, and if the legislature intended to sanction an illicit relationship as constituting a basis for dependency, a provision for such would have been made in the Act.

Under South Carolina law, “‘Fornication’ is the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.” S.C. Code Ann. § 16-15-80.

Yvonne appealed to the Appellate Panel. The Appellate Panel affirmed and she appealed to the Court of Appeals, which reversed holding:

We hold the Appellate Panel erred in finding Timothy and Yvonne were engaged in fornication. The record contains no evidence of any acts of fornication or convictions for fornication. Accordingly, we reverse the Appellate Panel as to this issue….

In light of our reversal of the Appellate Panel’s fornication findings, we remand this case to the Appellate Panel to reconsider its holding. Day held individuals cannot be dependents under the Act if they are involved in an illicit relationship. Here, no evidence was presented of an illicit relationship. Thus, we ask the Appellate Panel to determine, based on the evidence in the record, whether Yvonne qualifies as a dependent under the Act.

York would appear to stand for the proposition that a court cannot find “fornication” in a situation in which unmarried folks cohabit in a relationship containing an intimate/sexual component absent “evidence of any acts of fornication or convictions for fornication.” This has import in South Carolina child custody cases. Often family courts will deny a parent custody if that parent is cohabiting in an intimate/sexual relationship. York seems to indicate that employing this factor to deny a cohabiting parent custody may be contrary to law.

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