Hamel v. Poston

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ex Parte:

Martha Hamel, Guardian Ad Litem,       
Respondent

In Re:

Editha A. (Poston) Austin

v.

Ody M. Poston,       
Appellant.

Appeal From Horry County

Lisa A. Kinon, Family Court Judge

Unpublished Opinion No.  2003-UP-263

Submitted January 29, 2003 - Filed April
9, 2003 

AFFIRMED

Eben H. Cockley, of Charleston; Susan King Dunn, of Charleston;
for Appellant.

Charles Richard Rhodes, Jr., of Conway; for Respondents.

PER CURIAM:  This matter came before the
family court pursuant to a rule to show cause requested by attorney Martha L.
Hamel to enforce an order awarding her fees for her services as a court-appointed
guardian ad litem in a contested custody action.  The family court ordered
Poston to pay previously ordered fees plus additional fees and costs that Hamel
incurred to collect her fees.  Poston appeals.  We affirm.
[1]

FACTS AND PROCEDURAL BACKGROUND

The underlying custody action was filed by Poston’s
former wife, Editha A. (Poston) Austin, on July 23, 1998, seeking custody of
their minor child, Editha Anne.  In response to Austin’s complaint and
motion for temporary relief, Poston filed a return contesting the jurisdiction
of the South Carolina family court to hear the matter and asserting that Nevada
was the appropriate convenient forum and Editha Anne’s home state.

On September 1, 1998, after a pendente lite
hearing, the family court issued a temporary order finding South Carolina had
jurisdiction to hear the case.  The family court also granted Poston
temporary custody of Editha Anne.  Poston appealed this temporary order
on October 8, 1998. [2]

On September 17, 1998, upon direction of the chief
administrative judge, the clerk of court appointed Hamel as appointed guardian
ad litem for Editha Anne.  One week later, the family court issued a
supplemental order in which attorneys for both Austin and Poston consented to
a visitation schedule and to Hamel’s appointment as guardian ad litem in the
case.  At a status conference on December 7, 1998, the family court ordered
Austin and Poston each to pay Hamel $1,000.00, for a total fee of $2,000.00. 
As reflected in Hamel’s records, Poston paid Hamel $1,000.00 on December
17, 1998, and Austin paid $1,000.00 on March 22, 1999.

In early March 1999, a magistrate in Nevada placed
Editha Anne with Austin, who brought the child back to South Carolina.  On
May 6, 1999, Austin filed a motion in South Carolina for custody of Editha Anne
and other relief.  By order dated June 17, 1999, the family court ruled
that all issues were to be reserved for a period of sixty days, after which
time a supplemental hearing would be held or a telephone conference would be
set up.  In the interim, the family court ordered that the “status quo”
regarding custody of Editha Anne be maintained.

Pursuant to a motion by Hamel for interim fees
for services rendered, Family Court Judge Lisa A. Kinon held a hearing on December
14, 1999.  A result of the hearing, Judge Kinon issued an order filed
January 27, 2000, awarding Hamel fees of $1,400.00, with Austin paying $840.00
and Poston paying $560.00.  Both Austin and Poston discharged their respective
obligations.

Also on December 14, 1999, Family Court Judge H.
T. Abbott, III, held a hearing on a motion by Poston for certain visitation
rights, including telephonic communication, with Editha Anne.  Judge
Abbott issued an order on February 24, 2000, addressing the motion and other
issues and ordering Austin and Poston each to pay Hamel $1,500.00.  Austin
paid Hamel $1,500.00 on August 28, 2000.

The case came before Family Court Judge H. E. Bonnoitt,
Jr., for a final hearing on October 16 and 17, 2000.  On January 5, 2001,
Judge Bonnoitt signed an amended order that, among other things, changed legal
custody of Editha Anne from Poston to Austin.  In addition, Judge Bonnoitt
noted that Poston still owed Hamel $1,500.00 and required him to pay the past
due sum plus and an additional $1,644.33 for a total of $3,164.33 within thirty
days or to set up a payment schedule with Hamel.

On June 19, 2001, the matter came before Judge
Kinon on a rule to show cause requiring Poston to appear before the family court
and show cause why he should not be held in contempt for failing to pay court-ordered
fees to Hamel.  Poston was properly served with the rule, but did not
personally appear at the hearing although his attorney appeared on his behalf. 
Judge Kinon declined to find Poston in willful contempt, but found he had
violated the orders issued by Judge Abbott and Judge Bonnoitt requiring him
to pay guardian ad litem fees.  Based on this finding, Judge Kinon ordered
Poston to pay the previously ordered fees plus $928.50 representing fees and
costs that Hamel incurred as a result of Poston’s previous noncompliance.

DISCUSSION

Poston’s argument, both at the hearing
on the rule to show cause and on appeal, is that, pursuant to Rule 225 of the
South Carolina Rules of Appellate Procedure, payment of the guardian ad litem
fees should have been stayed pending his appeal of the temporary order finding
South Carolina could exercise jurisdiction over the matter.  We disagree.

Rule 225(a) states that “[a]s a general
rule, the service of a notice of appeal in a civil matter acts to automatically
stay matters decided in the order on appeal, and to automatically stay
the relief ordered in the appealed order, judgment, or decree.” [3]   As noted in Hamel’s brief, nothing in the appealed temporary
order addressed her appointment of the guardian ad litem or the award of fees
to the guardian ad litem; therefore, guardian fees was not a “matter decided
in the order on appeal” and the automatic stay provisions of Rule 225 are not
applicable. [4]

AFFIRMED.

GOOLSBY, HOWARD, and SHULER, JJ., concur. 

[1]   Because oral argument would not aid the court in resolving the issue
on appeal, we decide this case without oral argument pursuant to Rule 215,
SCACR.

[2]   This court affirmed the temporary order in an unpublished opinion. 
Austin v. Poston, Op. No. 2002-UP-718 (S.C. Ct. App. filed Nov. 19,
2002).

[3]   Rule 225(a), SCACR (emphasis added).

[4]   See S.C. Code Ann. § 18-9-220 (1985 and Supp. 2002) (stating
“the notice of appeal shall stay proceedings in the court below upon the
judgment appealed from”) (emphasis added); South Carolina Nat’l Bank
v. Devine Blossom, 321 S.C. 110, 467 S.E.2d 767 (Ct. App. 1996) (holding
the thirty-day time period allowed for applying for an appraisal in a mortgage
foreclosure action was not stayed by mortgagors’ appeal of a deficiency judgment
in that the appraisal of the subject property was not a matter decided in
the appealed order).