Lawrence v. Brown

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

Holly Lawrence, Appellant,

v.

Jennifer Brown, Respondent.

Appellate Case No. 2016-000479

Appeal From Charleston County
Jocelyn B. Cate, Family Court Judge

Unpublished Opinion No. 2018-UP-268
Submitted May 1, 2018 – Filed June 20, 2018

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

James Fletcher Thompson, of James Fletcher Thompson,
LLC, of Spartanburg, and Allison Boyd Bullard, of
Harling & West, LLC, of Columbia, both for Appellant.

Shannon Phillips Jones, of Shannon Jones Law Firm,
LLC, of Charleston, for Respondent.

PER CURIAM: Holly Lawrence appeals the family court's orders denying her
request for a further hearing as to her cause of action against Jennifer Brown for
attorney's fees and costs. On appeal, Lawrence argues the family court erred in
holding (1) it lacked jurisdiction to address her claim for both trial and appellate
attorney's fees following receipt of remittitur from the supreme court and (2) she
had abandoned her claim for attorney's fees. We affirm in part, reverse in part, and
remand to the family court to determine if Lawrence was entitled to trial-level
attorney's fees.

STANDARD OF REVIEW
Generally, on appeal from the family court, this court reviews factual and legal
issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although
this court reviews the family court's findings de novo, we are not required to ignore
the fact that the family court, which saw and heard the witnesses, was in a better
position to evaluate their credibility and assign comparative weight to their
testimony. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52. However, appellate
courts review the "family court's evidentiary or procedural rulings . . . using an
abuse of discretion standard." Stoney v. Stoney, Op. No. 27758 (S.C. Sup. Ct. filed
April 18, 2018) (Shearouse Adv. Sh. No. 16 at 9).

JURISDICTION
Lawrence argues, "The family court is vested with jurisdiction to award
attorney['s] fees following receipt of the remittitur from the [s]upreme [c]ourt."
Lawrence asserts this jurisdiction extends to awards of both trial and appellate
attorney's fees. Lawrence also contends the family court improperly relied on
Lawton v. New York Life Insurance Co.1 and "equated [her] request for attorney['s]
fees to 'splitting' a cause of action." We agree the family court erred in holding it
lacked jurisdiction to award Lawrence trial-level attorney's fees; however, we find
the family court did not err in finding it lacked jurisdiction to award Lawrence
appellate attorney's fees.

First, we find the family court erred in finding it did not have jurisdiction to
consider Lawrence's cause of action for trial-level attorney's fees following the
issuance of remittitur from the supreme court. See Martin v. Paradise Cove
Marina, Inc., 348 S.C. 379, 385, 559 S.E.2d 348, 352 (Ct. App. 2001) ("[C]ourts
are vested with jurisdiction to hear motions for statutory attorney['s] fees and costs

1
181 S.C. 230, 232, 186 S.E. 909, 910 (1936) ("[T]he rule against splitting is that a
single cause of action, claim[,] or demand cannot be split up or divided so as to be
made the subject of different actions." (quoting Corpus Juris, 1106, 1107, § 276)).
after the remittitur has been issued."). Initially, we find the family court had
statutory authority to determine attorney's fees in this case because (1) the
underlying case concerned the validity of Lawrence's consent for Brown to adopt
Lawrence's baby girl (Child) and (2) Lawrence requested attorney's fees in her
complaint. See S.C. Code Ann. § 63-3-530(A)(38) (2010) (providing if a party has
requested attorney's fees in a pleading or motion, the family court may generally
assess attorney's fees "for or against a party to an action brought in or subject to the
jurisdiction of the family court"); S.C. Code Ann. § 63-9-40 (2010) (stating the
family court has jurisdiction over adoption proceedings); S.C. Code Ann. §
63-9-310(F) (2010) (authorizing the payment of reasonable attorney's fees to a
child-placing agency or person so long as the fees are not provided as
"consideration for giving a consent or relinquishment of a child for the purpose of
adoption"). Next, we find the family court may rule on Lawrence's trial-level
attorney's fees because the supreme court made no inconsistent ruling as to
Lawrence's attorney's fees in its opinion. See Christy v. Christy, 317 S.C. 145,
151, 452 S.E.2d 1, 4 (Ct. App. 1994) ("Once the remittitur is sent down from the
appellate court, the lower court acquires jurisdiction to enforce the judgment and
take any action consistent with the appellate court ruling."). Thus, we find the
family court had jurisdiction to determine Lawrence's trial-level attorney's fees.
Second, we find the family court did not err by finding it lacked jurisdiction to
determine whether Lawrence was entitled to appellate attorney's fees because the
supreme court did not remand the issue of attorney's fees to the family court. See
Thornton v. Thornton, 328 S.C. 96, 113-14, 492 S.E.2d 86, 95 (1997) ("[T]he
family court's award of attorney's fees should not include fees incurred in the
course of appellate representation."); Green v. Green, 320 S.C. 347, 353, 465
S.E.2d 130, 134 (Ct. App. 1995) ("While Rule 222, SCACR, vests authority in
appellate courts to grant attorney['s] fees on appeal, nothing in the Rule divests the
family court of authority to award fees incurred pursuant to an appeal
where . . . the issue of attorney['s] fees was an issue on appeal[,] and the case was
remanded for consideration of attorney['s] fees in light of the ultimate decision on
remand."). Furthermore, the supreme court awarded Lawrence $1,583.39 in
appellate attorney's fees and costs pursuant to Rule 242, SCACR. We note
Lawrence argues Austin v. Stokes-Craven Holding Corp.,2 Muller v. Myrtle Beach
Golf and Yacht Club,3 and Taylor v. Medenica4 all state the award of appellate
attorney's fees pursuant to appellate court rules does not prevent a party from also

2
406 S.C. 187, 198-200, 750 S.E.2d 78, 83-85 (2013).
3
313 S.C. 412, 416, 438 S.E.2d 248, 250 (1993).
4
332 S.C. 324, 325-26, 504 S.E.2d 590, 591 (1998).
seeking statutorily authorized attorney's fees in circuit court, and thus, she should
be allowed to seek appellate attorney's fees in the family court. However, we find
Austin, Muller, and Taylor are all legally distinguishable from this case because
they were not decided in the family court. Thus, we find the family court correctly
found it lacked jurisdiction to award Lawrence appellate attorney's fees.
Third, we find the family court erred by finding the rule against splitting applied in
this case. See Lawton, 181 S.C. at 232, 186 S.E. at 910 ("[T]he rule against
splitting is that a single cause of action, claim[,] or demand cannot be split up or
divided so as to be made the subject of different actions" (quoting Corpus Juris,
1106, 1107, § 276)). Here, Lawrence brought one suit against Brown alleging
several different causes of action, one of which sought attorney's fees. Lawrence
did not address attorney's fees at the family court hearing on April 7-9, 2014, (the
consent hearing) because the parties consented to bifurcate the case and only focus
on the issue of whether Lawrence validly consented to Brown's adoption of Child.
Furthermore, at the consent hearing, the family court stated it would hold the
attorney's fees issue in abeyance. After the family court decided the consent issue
in Lawrence's favor, Brown voluntary dismissed her amended complaint and
appealed the consent issue. Following remittitur, Lawrence sought to assert her
claim for attorney's fees. We find Lawrence asserting her remaining cause of
action did not constitute "splitting" a single cause of action, especially given the
fact (1) the parties consented to limiting the scope of the consent hearing, (2) the
family court told Lawrence it would hold attorney's fees in abeyance, and (3) the
family court's order did not address Lawrence's attorney's fees. See Mitchell v.
Fed. Intermediate Credit Bank, 165 S.C. 457, 465, 164 S.E. 136, 138 (1932) ("But
the rule against splitting causes of action cannot be applied unless the two claims
separately sued on were both parts of one and the same cause of action, equally
available for purposes of suit at the time of the first action, and equally within the
scope and purview of that action; and where the Court, in its discretion, limits the
recovery in the first action to a part of the claim, a separate action for the residue
is not barred." (emphasis added) (quoting 34 C. J. 827)). Thus, we find the rule
against splitting does not apply in this case.

Accordingly, we affirm the family court's determination that it lacked jurisdiction
to consider Lawrence's entitlement to appellate attorney's fees, and we reverse the
family court's determination that it lacked jurisdiction to consider Lawrence's
entitlement to trial-level attorney's fees.

ABANDONMENT
Lawrence argues she "did not abandon her statutory right to request attorney['s]
fees from [Brown]." We agree.

We find the family court abused its discretion by finding Lawrence abandoned her
cause of action for trial-level attorney's fees against Brown.5 First, Lawrence never
expressly withdrew her cause of action for attorney's fees against Brown at the
consent hearing. See Ariail v. Ariail, 295 S.C. 486, 490, 369 S.E.2d 146, 148 (Ct.
App. 1988) (vacating a family court order that addressed alimony when the
plaintiff "expressly withdrew her request for alimony"); Brown v. Howell, 284 S.C.
605, 610, 327 S.E.2d 659, 662 (Ct. App. 1985) (finding the trial court "committed
prejudicial error in charging the jury on the question of unavoidable accident when
[the respondent] expressly abandoned consideration of the issue"). Instead,
Lawrence told the family court she was not seeking attorney's fees at the consent
hearing because attorney's fees were not an issue before the court; she contended
the parties had agreed the only issue before the family court at the consent hearing
was the validity of her consent for Brown to adopt Child. The family court stated
it would hold attorney's fees in abeyance, and Lawrence further contended
attorney's fees could be brought at another time without any prejudice and stated
while she had not requested attorney's fees at the consent hearing, she had "secured
[hers] for a later date." Furthermore, the family court's written order only ruled on
Brown's attorney's fees and made no ruling or statement as to Lawrence's cause of
action for attorney's fees. Thus, Lawrence did not expressly abandon her cause of
action for attorney's fees.

Moreover, the family court may hold attorney's fees in abeyance pending
resolution of other issues in a case. See Sexton v. Sexton, 310 S.C. 501, 502, 427
S.E.2d 665, 665-66 (1993) (stating attorney's fees, alimony, and equitable
distribution were held in abeyance while the issue of "whether the family court had
subject matter jurisdiction to divide property held by a third party was
determined . . . on appeal"). Here, both Lawrence and Brown consented to the
bifurcation of the case and stated Lawrence's consent was the dispositive issue.
However, at the time of the consent hearing, each party still had other causes of
action pending that the family court would need to decide before Child's custody
could be finally determined and the case could end. Specifically, if the family

5
Because this issue pertains to the procedural issue of whether Lawrence raised
her cause of action for attorney's fees at the appropriate time, not the legal issue of
determining the amount of attorney's fees to which Lawrence was entitled, we
review this issue under an abuse of discretion standard. See Stoney, Op. No. 27758
(S.C. Sup. Ct. filed April 18, 2018) (Shearouse Adv. Sh. No. 16 at 9).
court found Lawrence's consent valid, Lawrence had a claim for violation of the
Interstate Compact on the Placement of Children (ICPC); however, if the family
court found Lawrence's consent invalid, Brown had a pending termination of
parental rights (TPR) action against Lawrence and a claim for custody of Child as
Child's psychological parent. Only after the family court ruled in Lawrence's favor
on the issue of consent and dismissed Brown's Rule 59(e), SCRCP motion did
Brown voluntarily dismiss her remaining claims against Lawrence, which in turn
rendered Lawrence's ICPC claim moot. Immediately after voluntarily dismissing
her amended complaint, Brown appealed the family court's determination that
Lawrence's consent was invalid. Because (1) both parties had other causes of
action pending at the time of the consent hearing; (2) Brown immediately appealed
the family court's order following her dismissal of her amended complaint; and (3)
attorney's fees may be held in abeyance pending resolution of other issues, we find
Lawrence did not abandon her cause of action for attorney's fees by failing to argue
attorney's fees at the consent hearing, in a Rule 59(e) motion, or on appeal. Thus,
we find the family court abused its discretion by finding Lawrence abandoned her
cause of action for attorney's fees, and accordingly, we reverse and remand to the
family court for a determination of whether Lawrence was entitled to trial-level
attorney's fees.

CONCLUSION
For the foregoing reasons, we affirm the family court's finding that it lacked
jurisdiction to determine whether Lawrence was entitled to appellate attorney's
fees. We reverse the family court's determination that it lacked jurisdiction to
determine if Lawrence was entitled to trial-level attorney's fees and its finding that
Lawrence abandoned her cause of action for attorney's fees. We remand the case
to the family court for a determination of whether Lawrence is entitled to trial-level
attorney's fees.6

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 7

SHORT, THOMAS, and HILL, JJ., concur.

6
We make no determination as to whether Lawrence is entitled to trial-level
attorney's fees.
7
We decide this case without oral argument pursuant to Rule 215, SCACR.