Sinha v. Choudhry

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

Viresh Sinha, Appellant,

v.

Neelu Choudhry, Respondent.

Appellate Case No. 2017-001702

Appeal From Richland County
Dorothy Mobley Jones, Family Court Judge
Rosalyn Frierson-Smith, Family Court Judge

Unpublished Opinion No. 2020-UP-260
Submitted April 1, 2020 – Filed September 2, 2020
Withdrawn, Substituted, and Refiled November 18, 2020

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

Viresh Sinha, of Columbia, pro se.

William Benito Fortino, of Moore Taylor Law Firm,
P.A., of West Columbia, for Respondent.

PER CURIAM: Viresh Sinha (Father) appeals the family court's orders
dismissing his complaint and awarding Neelu Choudhry (Mother) attorney's fees.
On appeal, Father argues the family court erred in dismissing his complaint under
Rule 12(b)(6), SCRCP, awarding Mother attorney's fees, refusing to award him
costs, and dismissing his motion to amend his complaint to hold Mother and her
counsel in contempt under 18 U.S.C § 241 (2018). Father also asserts Mother's
counsel made a misrepresentation to the family court by not addressing its
dismissal of his motion to amend his pleadings in the proposed order Mother's
counsel drafted for the family court. We affirm in part, reverse in part, and
remand.

Viewed in the light most favorable to Father, we find the family court erred in
dismissing Father's complaint under Rule 12(b)(6), SCRCP. See Flateau v.
Harrelson, 355 S.C. 197, 201, 584 S.E.2d 413, 415 (Ct. App. 2003) ("Under Rule
12(b)(6), SCRCP, a defendant may move to dismiss based on a failure to state facts
sufficient to constitute a cause of action."); id. at 202, 584 S.E.2d at 415 ("In
deciding whether the trial court properly granted the motion to dismiss, [an
appellate court] must consider whether the complaint, viewed in the light most
favorable to the plaintiff, states any valid claim for relief."); Brazell v. Windsor,
384 S.C. 512, 515, 682 S.E.2d 824, 826 (2009) ("If the facts and inferences drawn
from the facts alleged in the complaint, viewed in the light most favorable to the
plaintiff, would entitle the plaintiff to relief on any theory, then the grant of a
motion to dismiss for failure to state a claim is improper."). On October 17-21,
2016, the family court held a trial on Mother's action for modification of custody
and child support. During the trial, Father testified he owned a private school and
Mother presented evidence showing Father deposited money into his personal bank
account. On November 23, 2016, the family court held a second hearing, during
which the family court announced it was awarding custody and child support to
Mother and imputing $4,302 in monthly income to Father based on the evidence
presented at trial. Five days after the oral ruling, Father closed his school. In
March 2017—approximately five months after trial—the family court filed its
amended final order and imputed $4,302 in monthly income to Father based on the
testimony presented at trial, including Father depositing money from various
sources into his personal account.

In May 2017, Father filed this complaint alleging a change in circumstances
because he had recently closed his school due to the family court's oral ruling and a
decrease in number of students. We find Father's allegation sufficient to survive a
Rule 12(b)(6) motion, especially when the family court's order was based on facts
in the trial of the case which concluded prior to the closing of Father's business.
See Miller v. Miller, 299 S.C. 307, 310, 384 S.E.2d 715, 716 (1989) ("A family
court has authority to modify the amount of a child support award upon a showing
of a substantial or material change of circumstances."); id. at 310, 384 S.E.2d at
717 ("A substantial or material change in circumstances might result from changes
in the needs of the children or the financial abilities of the supporting parent to pay
among other reasons."). Accordingly, without reaching the merits of Father's
underlying allegation about the change of circumstance, we reverse the family
court's dismissal of Father's complaint and remand for further proceedings.1

Next, to the extent Father asserts a cause of action existed to modify custody, he
abandoned that claim during the hearing when he told the court he was no longer
proceeding on that issue because he wanted to "focus on the financial part of it."
See Williams Carpet Contractors, Inc. v. Skelly, 400 S.C. 320, 329, 734 S.E.2d
177, 182 (Ct. App. 2012) (noting the plaintiff abandoned its breach of contract
claim when it dismissed the claim at the beginning of trial and proceeded only on
the quantum meruit theory). Additionally, Father abandoned his argument that the
family court erred in not awarding costs because he only listed the issue in his brief
and did not include any argument or law supporting this issue. See First Sav. Bank
v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (noting a party is
deemed to have abandoned an issue on appeal when the party fails to cite
supporting authority or provide arguments); Ellie, Inc. v. Miccichi, 358 S.C. 78, 99,
594 S.E.2d 485, 496 (Ct. App. 2004) (finding an issue is abandoned on appeal
when it "is not argued within the body of the brief but is only a short conclusory
statement").

Finally, we affirm the family court's denial of Father's motion to amend his
complaint to hold Mother and her counsel in contempt under 18 U.S.C. § 241. See
Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (stating an
appellate court reviews the family court's procedural rulings under an abuse of
discretion standard); Wagner v. United States, 377 F.Supp.2d 505, 510-11 (D.S.C.
2005) (acknowledging a plaintiff "had no private right of action under 18 U.S.C.
§[] 241 . . . because [it is a] criminal statute[]"). Father's argument that Mother's
counsel made a misrepresentation to the court by not addressing the family court's
dismissal of his motion to amend his pleadings in counsel's proposed final order is
not preserved for review. See Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54
(Ct. App. 2006) ("To preserve an issue for appellate review, the issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the trial court.").

Accordingly, the order of the family court is

1
Because we reverse the family court's dismissal of Father's complaint, we also
reverse the family court's award of attorney's fees.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.2

WILLIAMS, KONDUROS, and HILL, JJ., concur.

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