Court of Appeals affirms custody modification and continuance denial

Posted Friday, August 7th, 2020 by Gregory Forman
Filed under Child Custody, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions

This opinion was slightly revised on December 9, 2020: Refiled Sellers Opinion Adds One Footnote And One Clarification

The August 5, 2020 Court of Appeals opinion in Sellers v. Nicholls affirms the family court’s denial of a continuance request made by Mother at the beginning of trial and a change of custody to Father.

Sellers (Mother) filed a custody modification case to end the week-on/week-off joint custody arrangement that was part of the parties’ divorce decree, and seeking sole custody. The court initially denied this request but, after her employer moved her to Columbia, the court granted her temporary primary custody. Subsequently, after her son began complaining of stomach pain, issues defecating, and had wet the bed multiple times, she had her second attorney (her first attorney had already been relieved) conduct a forensic interview of the child. This attorney reported concerns to law enforcement and filed a motion for emergency relief. South Carolina Department of Social Services investigated and determined the allegations were unfounded.

Father’s attorney then filed a motion to disqualify Mother’s attorney, arguing she had become a necessary fact witness regarding custody based on her forensic interview of son. The family court granted the request on November 17, 2016 but indicated it would not continue the December 13, 2016 trial date due to Mother’s attorney being disqualified. Mother filed a motion to reconsider the disqualification order but that motion was never heard. A week before trial she signed a consent order relieving her second attorney and agreeing she would proceed pro se if she could not retain new trial counsel.

Mother appeared at trial pro se and requested a continuance. The trial court, believing itself bound by the prior order indicating the matter could not be continued due to Mother’s attorney being disqualified, denied the motion. Trial proceeded and the family court awarded Father primary physical custody and $15,000 in attorney’s fees. Both parties filed post-trial motions but Mother’s was untimely. After the court granted Father some relief (increased child support) from his post-trial motion, Mother appealed.

The Court of Appeals found the trial judge erred in determining it could not continue the matter based upon the prior order from the motion to disqualify. It cited two reasons for this determination:

We hold the family court judge who decided the disqualification could not usurp the discretion of the family court judge hearing the case at trial. First, Rule 40(i)(1), SCRCP, provides counsel may request a continuance “as actions are called.” We hold the “as” in “as actions are called” means “at the time” actions are called, which indicates the discretion to grant a continuance rests with the judge currently hearing the case, and a preceding judge cannot usurp this discretion.

Second, an order granting or denying a continuance is an interlocutory order that does not affect the merits of a case; instead, a continuance delays the progress of a case and the discretion to grant or deny the motion vests with the judge with whom the case is before… Here, the substantial issue addressed in the order was counsel’s disqualification, and the prospective denial of a motion for a continuance was therefore an interlocutory order. As such, this order could not prevent the family court from considering Mother’s motion to continue. Therefore, the family court erred by determining it was bound by such order and abused its discretion by failing to exercise any discretion in ruling upon Mother’s motion for a continuance.

However the Court of Appeals affirmed the denial of a continuance finding Mother was not prejudiced by the denial. It noted that she had already relieved two attorneys and that the consent order entered a week before trial noted that she would proceed pro se if she could not retain new counsel. Based on this, it found she failed to show “good and sufficient cause” to grant a continuance.

The Court of Appeals also affirmed the custody decision. It found substantial evidence in the record to justify the family court’s determination. Mother had difficulty disciplining her children (the guardian found her argumentative), had overnight visitation with her boyfriend with the children present in violation of the prior final order, left the children in care of her parents while she spent nights with that boyfriend, failed to inform Father of son’s medication, failed to provide that medication when son was in Father’s custody, and changed the children’s day care five times since the prior final order. The Court of Appeals concurred with the family court that granting Father primary physical custody was in children’s best interests.

Finally the Court of Appeals affirmed the attorney fee award because Mother’s post-trial motion was untimely and thus she had not preserved that issue for appeal.

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