Payne v. Payne

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

Ex Parte: Teresa and George Payne, Intervenors,
Appellants.

South Carolina Department of Social Services,
Respondent,

v.

Brittany Payne and George Payne, Jr., Respondents.

In the interest of minors under the age of eighteen.

Appellate Case No. 2018-000152

Appeal From Lexington County
Robert E. Newton, Family Court Judge

Unpublished Opinion No. 2019-UP-274
Submitted June 27, 2019 – Filed July 23, 2019

REVERSED AND REMANDED

John Stephen Keffer, of Young, Keffer & Donnald, PA,
of Sumter, for Appellants.

A. Bea Hightower, of Aiken & Hightower, of Columbia,
for Respondent Brittany Payne.
John Clark Phillips, Jr., of Law Office of John C.
Phillips, Jr., of Columbia, for Respondent George Payne,
Jr.

Scarlet Bell Moore, of Greenville, for Respondent South
Carolina Department of Social Services.

Brett Lamb Stevens, of Stevens Law, LLC, of Columbia,
for the Guardian ad Litem.

PER CURIAM: George and Teresa Payne (Grandparents) appeal an order
denying their motion to intervene in a Department of Social Services (DSS)
removal action involving their grandchildren. On appeal, Grandparents argue the
family court erred in denying their motion to intervene. We reverse and remand.

On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). However, "a family
court's evidentiary or procedural rulings . . . [are] review[ed] using an abuse of
discretion standard." Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486
n.2 (2018).1

Upon timely application anyone may be permitted to
intervene in an action: (1) when a statute confers a
conditional right to intervene; or (2) when an applicant's

1
The de novo standard of review that is generally applicable in family court
proceedings allows this court to find facts in accordance with our view of the
preponderance of the evidence. See Brown v. Odom, 425 S.C. 420, 429, 823
S.E.2d 183, 187 (Ct. App. 2019) ("In a de novo review, the appellate court is free
to make its own findings of fact . . . ."); Lewis v. Lewis, 392 S.C. 381, 386, 709
S.E.2d 650, 652 (2011) ("Article V, § 5 of the South Carolina Constitution
provides in relevant part that our appellate jurisdiction in cases of equity requires
that we 'review the findings of fact as well as the law.'"). However, this is an
appeal from a procedural question that is reviewed under an abuse of discretion
standard. See Brown, 425 S.C. at 429, 823 S.E.2d at 187 ("[E]videntiary and
procedural rulings of the family court are reviewed for an abuse of discretion."
(citing Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2)). Thus, we are not free
here to find facts in accordance of our view of the preponderance of the evidence.
claim or defense and the main action have a question of
law or fact in common. . . . In exercising its discretion
the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of
the original parties.

Rule 24(b), SCRCP. The permanency planning statute provides, "Any . . . party in
interest may move to intervene in the case pursuant to the rules of civil procedure
and if the motion is granted, may move for review." S.C. Code Ann.
§ 63-7-1700(J) (Supp. 2018). "'Party in interest' includes . . . an individual with
physical or legal custody of the child . . . ." S.C. Code Ann. § 63-7-20(17) (Supp.
2018). "Generally, the rules of intervention should be liberally construed whe[n]
judicial economy will be promoted by declaring the rights of all affected parties."
Ex Parte Gov't Emp.'s Ins. Co., 373 S.C. 132, 138, 644 S.E.2d 699, 702 (2007).

The family court abused its discretion by not considering the factors set forth in
Rule 24(b) when determining whether to permit intervention. See Stoney, 422 S.C.
at 594 n.2, 813 S.E.2d at 486 n.2 (providing a family court's procedural rulings are
reviewed under an abuse of discretion standard). When the children were
removed, Grandparents had physical custody of the children through a safety plan;
thus, Grandparents were parties in interest and could move to intervene pursuant to
section 63-7-1700(J). See § 63-7-20(17) (providing a "party in interest" includes
"an individual with physical or legal custody of the child"). The plain language of
section 63-7-1700(J) contemplates permissive rather than mandatory intervention.
See id. ("Any . . . party in interest may move to intervene . . . pursuant to the rules
of civil procedure and if the motion is granted, may move for review." (emphasis
added)). Thus, the proper framework for analyzing this intervention is Rule 24(b),
which governs permissive intervention.

Rule 24(b) requires the court to consider whether the intervention is timely and
"whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties." See id. ("Upon timely application anyone may be
permitted to intervene in an action . . . . In exercising its discretion the court shall
consider whether the intervention will unduly delay or prejudice the adjudication
of the rights of the original parties." (emphases added)). However, nothing in the
record indicates the family court considered the timeliness of the motion or
whether intervention would prejudice the original parties. The family court
considered the merits of Grandparents' underlying request for placement rather
than the procedural question of whether they should be permitted to intervene.
Nothing suggests the family court weighed the considerations set forth by Rule
24(b), which was error. Thus, this case is reversed and remanded for a new
hearing on Grandparents' motion. At the hearing, the family court shall consider
their motion to intervene within the framework of Rule 24(b). We offer no opinion
as to whether Grandparents' intervention was warranted or appropriate.

REVERSED AND REMANDED.2

HUFF, THOMAS, and KONDUROS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.