Hemphill v. Hemphill

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

Evelyn Denise Hemphill, Appellant,

v.

Kenneth Bernard Hemphill, Respondent.

Appellate Case No. 2018-001141

Appeal From Chester County
Coreen B. Khoury, Family Court Judge

Unpublished Opinion No. 2021-UP-141
Submitted March 1, 2021 – Filed April 28, 2021

AFFIRMED

Evelyn Denise Hemphill, of Rock Hill, pro se.

April Dawn Porter, of Law Office of April D. Porter,
P.C., of Chester, for Respondent.

PER CURIAM: Evelyn Denise Hemphill (Mother) appeals an order from the
family court denying her request to modify custody of her minor child (Child)
based on a substantial change in circumstances. On appeal, Mother raises
twenty-six issues. We affirm pursuant to Rule 220(b), SCACR.

Mother's issues are as follows:
(1) Was it an error of the family court or violation of any rules or Mother's
constitutional rights when the family court issued orders and judgments from a
default 2010 Divorce Decree that was procured by fraud?

(2) Was it an error of the family court or violation of any rules of Mother's
constitutional rights when the family court entered judgments and orders against
Mother when Donald Brown (Attorney Brown) failed to appear for the first
temporary hearing for the divorce, leaving Mother legally defenseless?

(3) Was there a violation of any rules or Mother's constitutional rights when the
family court continued to proceed with the trial during the divorce action and failed
to declare a mistrial when Mother made the family court aware of the extrinsic
fraud and misconduct that occurred in the beginning of the divorce proceedings
that were heard in the family court?

(4) Was it an error of the family court or violation of any rules to issue a default
2010 Divorce Decree when Attorney Brown and Rosalee Hix Davis (Attorney
Davis) committed extrinsic fraud against Mother?

(5) Were the South Carolina Rules of Civil Procedure not followed when Mother
requested to be relieved from the orders under the grounds of newly discovered
evidence and fraud, Rule 60 Relief from judgment or order, when the motion for
relief from order was filed by Mother on March 21, 2018, and Mother's affidavit
was filed in the family court on March 21, 2018?

(6) Were there violations of any rules or Mother's constitutional rights when
Mother's former attorneys and Kenneth Bernard Hemphill's (Father's) attorney
influenced the family court to enter order and judgments against Mother that were
all procured by fraud?

(7) Were the actions of all of the attorneys, family court judges, and other officers
of the court not extrinsic fraud?

(8) Did the family court issue a valid and legal 2010 Divorce Decree according to
the South Carolina Rules of Civil Procedure?

(9) Was there a violation of any rules or of Mother's constitutional rights when she
was denied custody of Child and property when orders and judgments were entered
by the family court based upon fraudulent actions of Father along with fraud and
misconduct orchestrated by other officers of the court?

(10) Was there a violation of any rules or of Mother's or Child's constitutional
rights when the family court dismissed a custody action brought forth by Mother
on November 18, 2014, due to the 365-day rule because O. Cyrus Hinton
(Attorney Hinton) failed to contact the court within a one-year time period?

(11) Was the second order of custody that was issued by the family court not
procured by fraud when Attorney Hinton stole approximately $4,500 from Mother
without rendering legal services to her?

(12) Was it a violation of any rules or of Mother's constitutional rights or
misconduct when Father requested the family court issue a second psychological
exam to be performed on Mother when Mother complied with the first court order
for the first basic psychological exam?

(13) Was Father in violation of any rules when he questioned the credentials of the
first counselor, who was Dr. Wayne Schaefer, after the test results and the sworn
deposition of Dr. Schaefer were completed, to this date Father has failed to
produce evidence disproving Dr. Schaefer's credentials?

(14) Was it unethical and misconduct for Father to request Mother be court ordered
twice for psychological exams that Mother had to pay for placing Mother in a
financial hardship using trickery and schemes?

(15) Was it obstruction of justice when teacher Lynn Pharr of Lewisville Middle
School falsified the Vanderbilt ADHD Diagnostic Teacher Rating Scales needed
by Child's counselor to determine what treatment was needed for Child?

(16) Was J. Creighton Hayes (Attorney Hayes) in violation of any rules or
Mother's constitutional rights when Attorney Hayes failed to challenge the request
for Mother's second psychological exam knowing that Mother had no significant
psychological issues that would prevent her from rearing Child?

(17) Was it unethical and/or misconduct or in violation of any other rules for
Father's attorney to use her law license issued by the State of South Carolina to
block badly needed counseling services for Child?
(18) Were there violations of sections 63-3-810 to -870 of the South Carolina Code
(2010) or any other rules when "Guardian ad Litems Attorney Hope Rainey,
Charlotte Mooney, and Viva Halcom" neglected their responsibilities to represent
Child's best interest by not conducting independent, balanced, and impartial
investigations?

(19) Were there violations of the duty of candor toward the tribunal or any other
violations when Father's attorney, Attorney Brown, Attorney Davis, Attorney
Hinton, and Attorney Hayes prejudiced the administration of justice?

(20) Was it not perjury when Father had his key witness—Curtis Feaster, Mother's
former paramour—produce a fraudulent affidavit and present the fraudulent
affidavit to the family court?

(21) When the family court failed to relieve Mother from the judgment/order,
failed to set aside the judgment for fraud upon the court, or failed to declare a
mistrial once the fraud was brought to the family court's attention, did the family
court violate any Rules of Civil Procedure or any other rules or Mother's
constitutional rights?

(22) When the family court entered a decision of final custody that was procured
by fraud upon the court and in essence cannot be a decision and cannot become
final did the family court violate the Rules of Civil Procedure or Mother's
constitutional rights?

(23) When the family court denied Mother custody of Child in the March 21, 2018
temporary order based on the 2010 Divorce Decree that was procured by fraud
upon the court, did the family court violate the South Carolina Rules of Civil
procedure or any other rules or Mother's constitutional rights?

(24) Was it an error of the family court or a violation of any rules or Mother's
constitutional rights when the family court issued absolutely null, without legal
efficacy, ineffectual orders/judgments that bound Mother to comply with no legal
force and effect whatsoever, and was the family court capable of confirming,
ratifying, or enforcing the order/judgments in any manner or to any degree?

(25) Were Mother's rights concealed from her by officers of the court through no
fault of her own, and was the whole case fraudulent from the beginning of the
divorce action in 2009?
(26) Was it an error of the family court or violation of any rules or violation of
Mother's constitutional rights when the family court denied several requests made
by Mother for restraining orders against Father, resulting in Father having full
access to Mother, attacking Mother in Mother's home with Child and Mother's
grandson present?

First, we find issues 2, 10, and 26 are not proper for appellate review because they
pertain to unappealed orders from prior cases between the parties. See Bakala v.
Bakala, 352 S.C. 612, 632, 576 S.E.2d 156, 166 (2003) (holding that a family court
judge could not overrule the prior unappealed order of another family court judge
because it had become law of the case); In re Morrison, 321 S.C. 370, 372 n.2, 468
S.E.2d 651, 652 n.2 (1996) (noting that an unappealed ruling becomes the law of
the case and precludes further consideration of the issue on appeal).

Second, we find Mother did not preserve issue 18 for appellate review because she
raised it for the first time on appeal. 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.").

Third, this court does not have jurisdiction over issues 14, 16, 17, and 19 because
they relate to allegations a lawyer has committed misconduct. See Rule 3(b),
RLDE, Rule 413, SCACR ("The Commission [on Lawyer Conduct] shall have
jurisdiction over all allegations that a lawyer has committed misconduct or is
incapacitated.").

Fourth, to the extent Mother contends in issue 24 that the family court lacked
subject matter jurisdiction, we hold the family court has jurisdiction over custody
disputes. See Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600
(1994) (providing "[s]ubject matter jurisdiction is 'the power to hear and determine
cases of the general class to which the proceedings in question belong'" (quoting
Bank of Babylon v. Quirk, 472 A.2d 21, 22 (Conn. 1984))); S.C. Code Ann.
§ 63-3-530 (2010 & Supp. 2020) (providing the family court has exclusive
jurisdiction over custody disputes).

Fifth, we find Mother failed to provide this court with a sufficient record upon
which this court could conduct an intelligent review of issues 12, 13, 15, and 26.
See Taylor v. Taylor, 294 S.C. 296, 299, 363 S.E.2d 909, 911 (Ct. App. 1987)
("The burden is on the appellant to furnish a sufficient record on appeal from
which this court can make an intelligent review."). The record on appeal is unclear
whether Mother objected to the second psychological evaluation. Mother did not
include in the record on appeal the transcript from the hearing in which the
psychological evaluation was discussed and from which the family court ordered
Mother to submit to the second psychological evaluation. Mother also did not
include in the record on appeal the transcript from the four-day final hearing; thus,
this court is unable to review any issue regarding Dr. Schaefer's credentials or any
issue related to Mother's assertions that one of Child's teachers obstructed justice
by falsifying the results of the Vanderbilt ADHD Diagnostic Teacher Rating Scale,
which she alleges prohibited Child's counselor from determining the appropriate
treatment for Child.

Sixth, we find the family court did not abuse its discretion by denying Mother's
Rule 60(b), SCRCP, motion. See Sanders v. Smith, 431 S.C. 605, 611, 848 S.E.2d
604, 607 (Ct. App. 2020) ("The family court has discretion in deciding whether to
grant or deny a motion made pursuant to Rule 60(b) and we review such decisions
using an abuse of discretion standard."). Initially, because issues 1, 3, 4, 6, 11, 20,
and 25 relate to Mother's first and second custody cases, which became final in
2010 and 2014 respectively, we find the family court could not consider any
argument of fraud related to the first or second custody case because Mother filed
the Rule 60(b)(3), SCRCP, motion more than a year after the judgments in those
cases. See Rule 60(b), SCRCP ("The [Rule 60] motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order or proceeding was entered or taken."). Although issues 5, 6, 7, 9,
21, and 22 relate to the family court's March 19, 2018 order—thus, Mother's March
21, 2018 Rule 60(b) motion was timely filed—we find the family court did not
abuse its discretion by denying Mother's motion as to these issues because
Mother's allegations do not amount to extrinsic fraud. See Chewning v. Ford
Motor Co., 354 S.C. 72, 81, 579 S.E.2d 605, 610 (2003) ("Extrinsic fraud is 'fraud
that induces a person not to present a case or deprives a person of the opportunity
to be heard. Relief is granted for extrinsic fraud . . . because the fraud prevented a
party from fully exhibiting and trying his case . . . .'" (quoting Hilton Head Ctr. of
S.C. v. Pub. Serv. Comm'n, 294 S.C. 9, 11, 362 S.E.2d 176, 177 (1987))). In her
motion, Mother alleged Attorney Hayes had committed extrinsic fraud by (1)
failing to submit documentation to the family court regarding her experience with
Attorney Davis, (2) failing to subpoena information on the amount of time Father
had worked the last eight years, and (3) filing a proposed parenting plan that stated
Mother was requesting joint custody instead of the sole custody she contracted
with him to seek. She also asserted the March 2018 final order was "obtained by
fraudulent pretenses" because her attorneys had not protected her legal rights and
had stolen money from her without providing services. Based on the foregoing, we
find the family court did not abuse its discretion.1

AFFIRMED.2

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.

1
Although on appeal Mother appears to solely argue against the family court's
custody ruling on the ground of fraud, to the extent Mother argues the family court
erred by denying her request for custody pursuant to a substantial change in
circumstances, this court cannot review the merits of the custody ruling because
Mother failed to provide this court with a sufficient record upon which it can make
an intelligent review of this issue. See Taylor, 294 S.C. at 299, 363 S.E.2d at 911
("The burden is on the appellant to furnish a sufficient record on appeal from
which this court can make an intelligent review."). Specifically, the record on
appeal does not contain the transcript from the four-day custody hearing.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.