Rosier v. Smith

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

Donna M. Rosier, Appellant,

v.

Angelique Michelle Smith, Alexandria R. Downs,
individually and as Personal Representative for the Estate
of Barry E. Rosier and Savannah Rosier, Respondents.

Appellate Case No. 2017-002344

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2021-UP-271
Submitted May 14, 2021 – Filed July 14, 2021

AFFIRMED

Lisa Hostetler Brown, of LawyerLisa, LLC, of Columbia,
for Appellant.

Arthur W. Rich, of Arthur W. Rich, P.C.; Clarke W.
McCants, III, of Nance and Nance; and Amy Patterson
Shumpert, of Nance & McCants, all of Aiken, for
Respondents.
PER CURIAM: In this probate action, Donna M. Rosier (Rosier) appeals the
circuit court's order affirming the probate court's determination that she was not the
lawful wife of Barry E. Rosier (Decedent) at the time of his death. We affirm.

1. We find the probate court had jurisdiction to declare Rosier and Decedent were
not married at the time of Decedent's death. See SPUR at Williams Brice Owners
Ass'n v. Lalla, 415 S.C. 72, 82, 781 S.E.2d 115, 120 (Ct. App. 2015) ("Declaratory
judgment actions are neither legal nor equitable and, therefore, the standard of
review depends on the nature of the underlying issues." (quoting Judy v. Martin,
381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009))); Neely v. Thomasson, 365 S.C.
345, 349–50, 618 S.E.2d 884, 886 (2005) ("When a probate court proceeding is an
action at law, the circuit court and the appellate court may not disturb the probate
court's findings of fact unless a review of the record discloses there is no evidence
to support them."); id. at 350, 618 S.E.2d at 886 ("Questions of law, however, may
be decided with no particular deference to the lower court.").

Rosier contends the probate court's order effectively granted Decedent a "common
law divorce" in finding she was not Decedent's heir at the time of Decedent's death.
We disagree. In South Carolina, the concept of common law divorce does not
exist, and probate courts hold exclusive jurisdiction over subject matter related to
estates and the determination of a decedent's heirs. See S.C. Code Ann.
§ 62-1-302(a)(1) (Supp. 2020) ("[T]he probate court has exclusive original
jurisdiction over all subject matter related to . . . estates of decedents, including . . .
determination of heirs and successors of decedents."); S.C. Code Ann.
§ 62-1-201(20) (Supp. 2020) ("'Heirs' means those persons, including the surviving
spouse, who are entitled under the statute of intestate succession to the property of
a decedent."). Further, family courts hold exclusive jurisdiction to grant a divorce.
S.C. Code Ann. § 63-3-530(A)(2) (2010) ("The family court has exclusive
jurisdiction . . . to hear and determine actions for divorce."). The probate court
found Rosier failed to prove she was Decedent's wife at the time of his death and
therefore was not his heir. Because probate courts have exclusive jurisdiction to
determine heirs, we find the probate court did not err in determining Rosier was
not Decedent's heir at the time of Decedent's death. Accordingly, we affirm the
circuit court on this issue.

2. We find the circuit court did not err in affirming the probate court's application
of the doctrine of judicial estoppel. "Judicial estoppel is an equitable concept that
prevents a litigant from asserting a position inconsistent with, or in conflict with,
one the litigant has previously asserted in the same or related proceeding."
Cothran v. Brown, 357 S.C. 210, 215, 592 S.E.2d 629, 631 (2004). Judicial
estoppel applies to matters of fact, not law. Hayne Fed. Credit Union v. Bailey,
327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997). The following elements are
necessary for the doctrine of judicial estoppel to apply:

(1) two inconsistent positions taken by the same
party . . . ; (2) the positions must be taken in the same or
related proceedings involving the same party . . . ; (3) the
party taking the position must have been successful in
maintaining that position and have received some benefit;
(4) the inconsistency must be part of an intentional effort
to mislead the court; and (5) the two positions must be
totally inconsistent.

Cothran, 357 S.C. at 215–16, 592 S.E.2d at 632.

Initially, Rosier contends judicial estoppel does not apply in this case because the
issue of whether a marriage was terminated by divorce is a question of law, not
fact. However, the existence of a valid marriage is a factual determination, which
includes whether the marriage was properly terminated. See Johnson v. Johnson,
235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960) ("The existence of a marriage is a
question of fact." (quoting Lucken v. Wichman, 5 S.C. 411, 413 (1847))). The
record is replete with evidence regarding Rosier's numerous marriages, including
her marriage to Decedent, and devoid of evidence proving any of the marriages
ended in divorce, creating a question of fact as to the existence of a valid legal
marriage between Rosier and Decedent at the time of Decedent's death.

Second, Rosier contends obtaining the Morris License1 was not a proceeding
contemplated under the second element of judicial estoppel. We find obtaining a
marriage license may properly be classified as a proceeding for purposes of

1
The Morris License is a marriage license Rosier entered into in North Carolina
with another man. Rosier admitted (1) she was under oath when she signed the
Morris License; (2) the Morris License indicated her marriage to Morris was her
fourth marriage; and (3) that her previous marriage, which was her marriage to
Decedent ended in divorce. Above Rosier's signature, the Morris License read,
"WE HEREBY MAKE APPLICATION TO THE REGISTER OF DEEDS
FOR A MARRIAGE LICENSE AND SOLEMNLY SWEAR THAT ALL OF
THE STATEMENTS CONTAINED IN THE ABOVE APPLICATION ARE
TRUE. WE FURTHER MAKE OATH THAT THERE IS NO LEGAL
IMPEDIMENT TO SUCH MARRIAGE."
judicial estoppel because marriage licenses are sworn, notarized legal documents.
See Cothran, 357 S.C. at 215–16, 592 S.E.2d at 632 (requiring the inconsistent
positions to be taken in the same or related proceedings); Quinn v. Sharon Corp.,
343 S.C. 411, 416, 540 S.E.2d 474, 476 (Ct. App. 2000) (Anderson, J., concurring
in result) ("Under the doctrine of judicial estoppel, a party that has assumed a
particular position in a judicial proceeding, via its pleadings, statements, or
contentions made under oath, is prohibited from adopting an inconsistent posture
in subsequent proceedings."); cf. Wright v. Craft, 372 S.C. 1, 37, 640 S.E.2d 486,
506 (Ct. App. 2006) (finding judicial estoppel did not apply to bar a negligence
claim when a car owner asserted his vehicle was worthless but stated it was worth
$15,000-16,000 in a loan application because the loan application was "not
produced in any type of formal proceeding or litigation and was not a sworn
statement").

As to whether the Morris License and Rosier's current petition for declaratory
judgment naming her as Decedent's surviving spouse were related proceedings, our
courts have taken a fairly broad view of the "same or related" requirement in
element two. See Hayne Fed. Credit Union v. Bailey, 327 S.C. at 252, 489 S.E.2d
at 477 (finding a party was judicially estopped from claiming he owned property in
a foreclosure action when he claimed he did not own the property in a previous,
unrelated divorce action); Quinn, 343 S.C. at 414–15, 540 S.E.2d at 476 (finding
an appellant was judicially estopped from claiming he owned a corporation when
he previously claimed his daughter owned the corporation in an answer and
counterclaim for a different case and a hearing in another case). We find Rosier's
actions are sufficiently related because the subject of Rosier's inconsistent
representations was her marital status. See Cothran, 357 S.C. at 215–16, 592
S.E.2d at 632 (requiring the positions to be taken in the same or related
proceedings). Accordingly, we find the second element of judicial estoppel is met.

Third, Rosier argues there is no evidence that she was successful in asserting her
position because her marriage to Morris was void ab initio. However, we find this
argument unpersuasive because it relies upon a finding that Rosier was Decedent's
surviving spouse. Further, Rosier benefited from a marital relationship with
Morris and admitted that she is still in a relationship with Morris and uses his last
name. Accordingly, we find the third element of judicial estoppel is met.

Fourth, Rosier contends there is no evidence to indicate she intentionally misled
the court and that her testimony and representations were the result of a lack of
legal knowledge and understanding. We disagree. Rosier testified she was scared
of going to jail after completing the Morris License because she knew bigamy was
illegal. Moreover, when the court asked Rosier to confirm she knew she was not
divorced from Decedent when she married the other two gentleman, Rosier replied,
"I didn't know, I wasn't for sure. [Decedent] could have gotten one[,] he had the
means, he had the money, he was sneaky like that. He would let somebody else
sign my name for a divorce I mean I didn't know." Furthermore, the Morris
License indicated she was divorced from Decedent, and by that license, she swore
under oath the statements included in it were true and that there were no legal
impediments to her marriage to Morris. When asked on cross-examination if she
knew what the Morris License was, Rosier pled her Fifth Amendment right against
self-incrimination. Thus, we find the record indicates Rosier understood she was
not divorced from Decedent at the time of her marriage to Morris and, therefore,
she intentionally misled the court. Accordingly, we find the fourth element of
judicial estoppel is met.

Finally, Rosier's assertion that she was not divorced from Decedent completely
contradicts her execution of the Morris License. In her current petition, Rosier
asserts that she was married to Decedent before his death and that the two were
never divorced. However, when completing the Morris License application, Rosier
attested under oath that she was not married and that no legal impediments existed
to prevent her marriage to Morris. In making these two claims, Rosier asserted
two totally inconsistent positions to the court. See Cothran, 357 S.C. at 215–16,
592 S.E.2d at 632 (stating a party must assert two inconsistent positions that are
completely irreconcilable to satisfy element one and five of judicial estoppel).
Accordingly, we find the first and fifth elements of judicial estoppel are met.

3. Rosier also argues the circuit court erred (1) in deferring to the probate court
because it applied an incorrect burden of proof and (2) in finding there was
evidence to support the probate court's determination that Rosier was not
Decedent's lawful wife at the time of his death. Because our prior findings are
dispositive, we decline to address Rosier's remaining issues on appeal. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not review remaining issues when its
determination of a prior issue is dispositive of the appeal).

AFFIRMED.2

WILLIAMS, THOMAS, and KONDUROS, JJ., concur.

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