Viresh Sinha v. Neelu 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. 2020-000803

Appeal From Richland County
Monét S. Pincus, Family Court Judge

Unpublished Opinion No. 2022-UP-219
Submitted April 1, 2022 – Filed May 18, 2022

AFFIRMED

Viresh Sinha, of Columbia, pro se.

William Benito Fortino, of Moore Bradley Myers Law
Firm, of West Columbia, for Respondent.

PER CURIAM: Viresh Sinha (Father) appeals the family court's order dismissing
his rule to show cause for failure to state a claim upon which relief could be
granted. On appeal, Father argues (1) the family court wrongfully applied Rule
12(b)(6) of the South Carolina Rules of Civil Procedure, (2) the family court held
an improper hearing, (3) the transcript contains errors and omissions, (4) this court
should vacate the family court's prior order, (5) Neelu Choudhry's (Mother's) return
to the rule to show cause was untimely and violated Rule 14 of the South Carolina
Family Court Rules, (6) the family court had authority over his claims, (7) the
family court violated his due process rights to a fair trial, (8) Father had a fiduciary
duty, and (9) Mother neglected her fiduciary duties and violated their minor child's
Title 14 rights. We affirm pursuant to Rule 220(b), SCACR.

1. As to issue one, we hold Father's argument that Mother's motion to dismiss was
untimely under Rule 12(b)(6), SCRCP, 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 [family] court."). To the extent
Father argues the family court erred in dismissing his rule to show cause under
Rule 12(b)(6), we hold the family court properly found Father failed to state a
claim upon which relief could be granted; thus, the family court did not err in
dismissing Father's rule to show cause. 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. ("A [family court] in the civil setting may
dismiss a claim when the defendant demonstrates the plaintiff has failed to state
facts sufficient to constitute a cause of action in the pleadings filed with the
court."); id. at 202, 584 S.E.2d at 415 ("In deciding whether the [family] 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.").

2. As to issue two, we hold the family court did not err in failing to hold an
evidentiary hearing under Rule 14(g), SCRFC. The family court considered
Mother's motion to dismiss first because it was dispositive and ultimately granted
the motion after reviewing Father's pleadings and Mother's motion and listening to
Mother's and Father's arguments at the hearing. Because the family court granted
the motion, it did not err in failing to hold an evidentiary hearing on the underlying
rule to show cause.

3. As to issue three, we hold Father's argument regarding the allegedly deficient
transcript is without merit. Even assuming the identified information should have
been included in the transcript, it does not affect the resolution of the issues on
appeal.

4. As to issue four, we hold Father's argument regarding the "loophole" in the
family court's prior custody order is not properly before this court because Father
did not appeal the prior order in this appeal; rather, he only appealed the order
dismissing his complaint for failure to state a claim upon which relief could be
granted.

5. As to issues five, six, seven, eight, and nine, we hold Father's arguments are not
preserved for review. See Doe, 370 S.C. at 212, 634 S.E.2d at 54 ("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 [family] court."). Further, as to
issues seven, eight, and nine, we also hold Father abandoned his arguments. See
DiMarco v. DiMarco, 399 S.C. 295, 301, 731 S.E.2d 617, 620 (Ct. App. 2012)
(finding the appellant's argument was abandoned on appeal because he "failed to
cite any case law or authority to support his argument"); Shealy v. Doe, 370 S.C.
194, 205-06, 634 S.E.2d 45, 51 (Ct. App. 2006) (declining to address an issue on
appeal when the appellant made conclusory statements and failed to cite any
supporting authority).

AFFIRMED.1

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.