Whitlock v. Collins

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

Lisa Whitlock, Respondent,

v.

Raymond Collins, Appellant.

Appellate Case No. 2012-212019

Appeal From Calhoun County
Anne Gue Jones, Family Court Judge

Unpublished Opinion No. 2013-UP-301
Heard April 11, 2013 – Filed July 3, 2013

AFFIRMED

Paul V. Degenhart, of Degenhart & Degenhart Law,
LLC, of Columbia, for Appellant.

Lisa Whitlock, of Swansea, pro se, Respondent.

PER CURIAM: Raymond L. Collins appeals the order of the family court,
arguing the court erred in failing to grant his motion for a continuance, failing to
question his competency to participate in a trial, and awarding attorney's fees and
costs to Lisa Whitlock. We affirm.
1. We affirm the family court's denial of Collins's motion for a continuance and
failure to rule he was incompetent at the time of the hearing. See Dep't of Soc.
Servs. v. Laura D., 386 S.C. 382, 385, 688 S.E.2d 130, 132 (Ct. App. 2009) (noting
the grant or denial of a continuance is within the sound discretion of the family
court and its ruling will not be reversed on appeal absent an abuse of discretion);
Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 651-52 (2011) (recognizing the
superior position of the family court in making credibility determinations). We
find no error in the family court disregarding the doctor's excuse produced by
Collins when Collins had not seen that doctor in nine months. We further find no
error in the family court proceeding with the hearing despite Collins's assertion in
his motion for continuance and post-trial motion that he was incompetent due to
taking prescription pain medication. The family court extensively questioned
Collins by phone regarding his consent to and understanding of the parties'
agreement. Furthermore, Collins did not request this court invalidate the
agreement due to lack of competency. See State v. Bell, 293 S.C. 391, 395-96, 360
S.E.2d 706, 708 (1987) ("The test for competency to stand or continue trial is
whether the defendant has the sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding and whether he has a rational,
as well as a factual, understanding of the proceedings against him."); Swentor v.
Swentor, 336 S.C. 472, 482, 520 S.E.2d 330, 336 (Ct. App. 1999) (stating that
family courts will refuse to approve agreements under essentially the same
circumstances that would render any other type of contract unenforceable); Gaddy
v. Douglass, 359 S.C. 329, 345, 597 S.E.2d 12, 20 (Ct. App. 2004) (defining
contractual capacity as "a person's ability to understand in a meaningful way, at the
time the contract is executed, the nature, scope and effect of the contract"); Burnett
v. Burnett, 290 S.C. 28, 30, 347 S.E.2d 908, 909 (Ct. App. 1986) (concluding wife
freely and voluntarily entered into separation agreement when there was no
"evidence that Mrs. Burnett was compelled to enter into the agreement as a result
of being overreached or subjected to any duress, nor is there any evidence that she
was not of sound mind or under any unusual stress, other than the stress normally
attendant to the breakup of a marriage").

2. We find no error in family court's award of attorney's fees to Whitlock. See
Chisholm v. Chisholm, 396 S.C. 507, 510, 722 S.E.2d 222, 224 (2012) ("The
decision to award attorney's fees rests in the sound discretion of the family court.");
id. (stating the factors the family court considers when determining whether to
award attorney's fees are: (1) the ability to pay; (2) the parties' respective financial
conditions; (3) the effect of the award on each party's standard of living; and (4)
the beneficial results achieved); Glasscock v. Glasscock, 304 S.C. 158, 161, 403
S.E.2d 313, 315 (1991) (stating the factors considered in determining a reasonable
attorney's fee are: (1) the nature, extent, and difficulty of the case; (2) the time
necessarily devoted to the case; (3) professional standing of counsel; (4)
contingency of compensation; (5) beneficial results obtained; and (6) customary
legal fees for similar services). Although Whitlock requested $12,000 in attorney's
fees, the family court awarded her $5,000 in attorney's fees to be paid directly to
her attorney. The court noted that Whitlock was out of work and receiving
monthly workers' compensation benefits. While the record includes only a 2008
financial declaration from Collins providing he has $1,100 in monthly income and
$1,880 in expenses, the family court noted Collins offered no explanation as to
why he had not provided an updated declaration. Whitlock testified that Collins's
business earned profits of $144,000 in 2005, the last year in which she was privy to
his tax return, and she had seen Collins working around town installing roofs. As
to beneficial results, the visitation agreement the court adopted was the same
Whitlock proposed two years earlier. On the remaining contested issues, the
family court found in Whitlock's favor and ordered Collins to pay the balance due
to the guardian ad litem, Whitlock's expert witness's fees, $4,200 in child support
accrued while the case was administratively dismissed, half the costs of diapers for
their autistic child, and half of any uninsured medical expenses for the children.
Furthermore, the family court found Collins responsible for much of the delay in
the case.

3. We decline to address Whitlock's due process issue. See Grant v. S.C.
Coastal Council, 319 S.C. 348, 356, 461 S.E.2d 388, 392 (1995) (finding
appellant's argument the hearing below was conducted in such a way as to deprive
him of his constitutional due process rights was never mentioned prior to his
appeal and consequently was not preserved for review); Sanders v. S.C. Dep't of
Corr., 379 S.C. 411, 418, 665 S.E.2d 231, 234 (Ct. App. 2008) (declining to
address respondent's argument because respondent failed to cross appeal the
administrative law court's finding).

4. As to Whitlock's argument that Collins failed to inform her he ordered the
trial transcript, we decline to dismiss the appeal on this ground. See Henning v.
Kaye, 307 S.C. 436, 437, 415 S.E.2d 794, 794 (1992) (denying respondents'
motion to dismiss even though noting dismissal of the appeal would be justified
based on appellant's numerous violations of the appellate court rules).

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.