Valerie Lawson v. Erin 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

Valerie Lawson, Appellant,

v.

Erin Michelle Smith, Respondent.

Appellate Case No. 2016-000267

Appeal From Spartanburg County
James F. Fraley, Jr., Family Court Judge

Unpublished Opinion No. 2019-UP-215
Submitted October 1, 2018 – Filed June 12, 2019

REVERSED and REMANDED

Donald Loren Smith, of Attorney Office of Donald
Smith, of Anderson, for Appellant.

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of
Spartanburg, for Respondent.

PER CURIAM: Valerie Lawson (Lawson) appeals the family court's order
dismissing her request for a change in custody of her minor daughter (Child).
Lawson argues the family court erred by failing to find (1) she was entitled to
custody based on the factors outlined in Moore v. Moore, 300 S.C. 75, 386 S.E.2d
456 (1989); (2) a substantial change of circumstances warranted a change of
custody; (3) reunification was in the child's best interest; and (4) Erin Smith (Erin)
in contempt of court for violating the terms of the parties' prior agreement. We
reverse and remand.

Lawson had sole custody1 of Child until March 2012, when she signed a temporary
"Limited Power of Attorney for Care of Minor Child(ren)" appointing "Robin/Erin
Smith" as the attorney-in-fact for Child. However, only Robin Smith (Robin)2
signed the contract accepting "the duties, powers and responsibilities" of the power
of attorney, and she notarized the contract under her former name, Robin
Simmons. Robin was Lawson's counselor at the Department of Social Services
(DSS) until she resigned from DSS in 2011. Erin, who is Robin's sister-in-law,
was not present when the limited power of attorney was signed and she never
spoke to Lawson about her relinquishment of custody. The limited power of
attorney empowered the attorney-in-fact with responsibility over Child's health,
education, and general welfare with an end date of September 2, 2012.

On May 21, 2012, Erin filed a complaint seeking custody of Child. In the 2014
order after the hearing on Erin's complaint, the court approved and incorporated an
agreement entered into by Lawson and Erin. The agreement provided Erin had
legal and physical custody of Child and defined Lawson's visitation and child
support obligations. The agreement required Lawson to undergo a psychological
evaluation, complete any of the evaluation's recommended treatments, and
maintain stable housing and employment for ninety days before filing for a change
of custody with the family court.

On September 10, 2014, Lawson filed a complaint seeking to modify custody,
alleging Erin and Robin "knowingly conspired to gain custody of . . . [C]hild" by
abusing both Robin's notary commission and her position as Lawson's DSS
counselor. Lawson contended Erin was never a party to the limited power of
attorney because she never signed it. She claimed Erin's name was fraudulently
added as attorney-in-fact after she signed the contract and without her knowledge.
The family court held a final hearing on Lawson's complaint on July 15, 2015. At
the hearing, Lawson testified she "never agreed to give . . .[C]hild to Erin Smith."

1
Child's father is not a named party in this case and has never petitioned the family
court for visitation or custody.
2
Although Robin testified she spells her name both as Robin and Robyn, we refer
to her as Robin. Robin also uses the surnames Smith and Simmons, her former
married name.
She stated she "agreed to give [C]hild to Robin Smith". Lawson explained that
based on how the name was written on the limited power of attorney, she believed
Robin's full name was "Robin Erin Smith." She testified Robin was the notary
public, signing her name as Robin Simmons. She recalled neither the witnesses
nor Erin were present at the signing of the limited power of attorney. Lawson
explained that when she signed the limited power of attorney, she believed she was
agreeing to give Robin the ability to take Child to the doctor so Lawson would not
have to miss school.

Initially, during Lawson's direct and cross examination, the family court
disallowed any testimony concerning the limited power of attorney and the
circumstances surrounding Lawson's temporary relinquishment of custody.
However, the family court subsequently decided the circumstances surrounding
Lawson's relinquishment of custody were relevant and allowed Lawson's counsel
to ask questions regarding this on redirect examination.

In its final order, filed August 11, 2015, the family court dismissed Lawson's
request for change of custody and ordered the 2014 order remain in effect. The
family court found Lawson "failed to meet her burden of proof to establish a
substantial change of circumstances to warrant a change in custody." In her
motion to reconsider pursuant to Rule 59(e), SCRCP, Lawson argued the family
court erred by failing to consider the Moore factors. Further, Lawson argued the
family court prevented her from making a proper record as it relates to the
circumstances under which she temporarily relinquished her rights to custody.
Thereafter, the family court filed an order on January 7, 2016, making findings
according to the Moore factors. However, regarding the third Moore factor, the
circumstances under which temporary relinquishment of Child's custody occurred,
the family court found the 2014 order was "an agreement between the parties. The
[family c]ourt previously found there were concerns at the time of removal of
custody that [Lawson] was not taking . . . [C]hild to medical appointments." The
family court further found that although it "acknowledge[d] . . . the Moore factors
seem[ed] to weigh in favor of [Lawson,]" the 2014 order "set out specific
circumstances that [Lawson] must accomplish prior to filing an action to regain
custody." It denied Lawson's motion because it found Lawson failed to complete
counseling, which the family court determined "to be a prerequisite to filing a new
action under the 2014 [o]rder." This appeal followed.

STANDARD OF REVIEW
"In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011).
"[W]hile this court has the authority to find facts in accordance with its own view
of the preponderance of the evidence, 'we recognize the superior position of the
family court judge in making credibility determinations.'" Lewis v. Lewis, 400 S.C.
354, 361, 734 S.E.2d 322, 325 (Ct. App. 2012) (quoting Lewis v. Lewis, 392 S.C.
381, 392, 709 S.E.2d 650, 655 (2011)). "Further, de novo review does not relieve
an appellant of his burden to 'demonstrate error in the family court's findings of
fact.'" Id. (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at 655). "Consequently, the
family court's factual findings will be affirmed unless appellant satisfies this court
that the preponderance of the evidence is against the finding of the [family] court."
Id. (quoting Lewis, 392 S.C. at 392, 709 S.E. 2d at 655) (alteration in original).

LAW/ANALYSIS

I. THE MOORE DOCTRINE

When a natural parent seeks to reclaim custody of his child after having temporarily
relinquished custody to a third party, the following factors should be considered:

1) The parent must prove that he is a fit parent, able to
properly care for the child and provide a good home. 2)
The amount of contact, in the form of visits, financial
support or both, which the parent had with the child
while it was in the care of a third party. 3) The
circumstances under which temporary relinquishment
occurred. 4) The degree of attachment between the child
and the temporary custodian.

Moore, 300 S.C. at 79–80, 386 S.E.2d at 458 (internal citations omitted). "The
question is not who has the most suitable home at the time of the hearing but
whether circumstances 'overcome the presumption that a return of custody to the
biological parent is in the best interest of the child.'" Urban v. Kerscher, 423 S.C.
615, 622, 817 S.E.2d 130, 133 (Ct. App. 2018) (quoting Sanders v. Emery, 317
S.C. 230, 234, 452 S.E.2d 636, 638–39 (Ct. App. 1994)).

If a party relinquishes custody in good faith because of
some temporary inability to provide for the child, such
parent should be able to regain custody upon a showing
that the condition which required relinquishment has
been resolved. Child custody should not be subject to
change because of adverse possession.

Moore, 300 S.C. at 81, 386 S.E.2d at 459.

a. Appropriate Standard

The Moore factors exclusively govern this case. The Moore factors apply in cases
in which a natural parent seeks to reclaim custody after having temporarily
relinquished custody to a third party. See id. ("If a party relinquishes custody in
good faith because of some temporary inability to provide for the child, such
parent should be able to regain custody upon a showing that the condition which
required relinquishment has been resolved."); Urban, 423 S.C. at 624–25, 817
S.E.2d at134 (finding the Moore factors exclusively governed when the natural
parent did not waive "her priority status as a biological parent to have custody of
Child returned and the circumstances surrounding relinquishment indicate[d] the
parties contemplated the eventual return of Child."). Although the family court
initially refused to allow argument or testimony regarding the limited power of
attorney and the circumstances surrounding Lawson's relinquishment of custody,
sufficient evidence exists to prove Lawson's relinquishment was temporary and she
did not "waive [her] priority status as a biological parent to reclaim custody." See
Harrison v. Ballington, 330 S.C. 298, 302, 498 S.E.2d 680, 682 (Ct. App. 1998)
(finding the Moore factors applied when the father's relinquishment was not
permanent and eventual return of the child to the father was contemplated by the
parties to the agreement). Lawson relinquished custody pursuant to the limited
power of attorney, signed by Lawson on March 12, 2012. The document
empowered the attorney-in-fact with the responsibility of Child's health, education,
and general welfare for the period of March 2, 2012, to September 2, 2012.
Although the contract names Robin and Erin as attorneys-in-fact, only Robin
signed the contract accepting "the duties, powers and responsibilities" provided by
the limited power of attorney. Further, the contract was notarized by Robin under
the name Robin Simmons, and none of the witnesses were present at the time
Lawson signed the contract. Moreover, Lawson testified she only agreed to
relinquish custody to Robin, not Erin. Notwithstanding the validity of the limited
power of attorney or the fact Lawson never intended to relinquish custody to Erin,
the limited power of attorney clearly confirms Lawson intended only temporary
relinquishment and the parties contemplated Child's return to Lawson. Thus,
because Lawson sought to reclaim custody of Child after temporarily relinquishing
custody to a third party, we find the Moore factors are controlling.
b. The Moore Factors

1. Fitness as a Parent

Lawson has satisfied the first Moore factor because she has proven she is a "fit
parent, able to properly care for . . . [C]hild and provide a good home." Moore,
300 S.C. at 79–80, 386 S.E.2d at 458. Beverly Lawson (Beverly), Lawson's
adoptive mother, testified Lawson moved into her home in February 2014 and has
lived there consistently since. She testified her home is 4,300 square feet with four
bedrooms and three bathrooms and is located on her seven acre property. Beverly
explained Child has her own room in the house. Frances Stockdale, a family and
marriage counselor, testified he did not observe anything to "lead [him] to believe
[Lawson] was incapable of caring for . . . [C]hild." Several character witnesses all
testified Lawson was a good mother who was capable of taking care of Child.
There is no indication Lawson has had any issues with drugs or alcohol, and she
does not have a criminal record. Brooks Moss, the guardian ad litem, testified her
investigation did not lead her to "believe that [Lawson] was unfit," and "there was
no reason to determine her unfitness." Lawson testified she was employed at
Tony's Pizzas and Subs as a delivery driver for over a year, where she made five
dollars per hour, plus tips, and worked approximately twenty-six to thirty-six hours
per week. Finally, the family court found Lawson was not unfit. Accordingly, the
record shows Lawson is a fit parent, able to maintain stable housing and
employment, and capable of properly caring and providing a stable home for
Child. Therefore, we find this factor weighs in favor of granting Lawson custody
of Child.

2. Contact in the Form of Visits and Financial Support

The second factor, the "amount of contact, in the form of visits, financial support
or both, which the parent had with the child while it was in the care of a third
party" also weighs in favor of Lawson. Id.. The family court found Lawson
"visited regularly with . . . [C]hild since the 2014 order." Lawson also took
advantage of the expanded visitation allowed under the 2014 order after she began
complying with the psychological evaluation recommendations. The family court
also found Lawson paid all child support obligations. No evidence in the record
exists to show Lawson failed to take advantage of her visitation or provide all child
support obligations under the 2014 agreement. Therefore, this factor weighs in
favor of returning custody to Lawson.
3. Circumstances of Temporary Relinquishment

The third factor, "[t]he circumstances under which temporary relinquishment
occurred" weighs in favor of returning custody of Child to Lawson. Id. Although
in its January 7, 2016 order the family court determined relinquishment occurred at
the time of the 2014 order, we find Lawson's relinquishment occurred at the time
the limited power of attorney was signed. Lawson testified that at the time of
relinquishment, she was very vulnerable and "[she] did the best [she] could for
what [she] thought would be best for [her] daughter." She explained she "did not
feel as if [Child] needed to move around from house to house with [her.]" She
testified she "never agreed to give . . . [C]hild to Erin." She explained she "agreed
to give . . . [C]hild to Robin, her former DSS counselor," because she trusted and
looked up to her. Lawson believed the limited power of attorney simply allowed
Robin to "take . . . [C]hild to the doctor without [her] having to get out of school."
Beverly believed the agreement provided Robin the ability to "watch [Child]
temporarily for a few months while [Lawson] gained her high school diploma."
Lawson recalled neither the witnesses nor Erin were present at the time she signed
the limited power of attorney, and she stated Robin notarized the contract using her
former name, Robin Simmons. The limited power of attorney specified it
remained valid from March 2, 2012, to September 2, 2012, or until revoked by a
natural parent. Although Erin testified Lawson did not seek to regain custody of
Child until Lawson was served with the complaint, Erin filed her complaint
seeking custody on May 21, 2012, less than three months after Lawson
relinquished temporary custody. Moreover, Erin acknowledged she never spoke to
Lawson about the relinquishment and she knew the arrangement to care for Child
was temporary. After the limited power of attorney was signed, Lawson gained
steady employment and housing, and attended counseling. Lawson also graduated
and obtained her high school diploma. The circumstances resulting in Lawson's
relinquishment of custody have substantially been resolved. Therefore, this factor
weighs in favor of returning custody of Child to Lawson.

4. Degree of Attachment between Child and Temporary Custodian

As to the final Moore factor, the "degree of attachment between the child and the
temporary custodian", although the family court found Erin had a strong
attachment to Child because Child lived with her since she was an infant, we find
this factor does not favor granting Erin custody of Child. Id.; see Urban, 423 S.C.
at 629, 817 S.E.2d at 137 ("The fact that a strong bond exists between a third party
and a child is not sufficient to award custody to the third party."). Erin testified she
believed it would be detrimental to Child for herself and her other children to be
"ripped out of [Child]'s life." However, she also testified she believed "it would be
detrimental to [Child] for [Lawson] to be ripped out of her life." Caroline
Mittmann, a licensed marriage and family therapist intern, testified that based on
her observations, Child was comfortable and engaging with both Erin and Lawson,
and referred to both as "mommy." Because Child had a strong bond with both
Lawson and Erin, this factor does not favor granting Erin custody of Child.

Accordingly, Erin has not "overcome the presumption that a return of custody to
the biological parent is in the best interest of the child." Sanders, 317 S.C. at 234,
452 S.E.2d at 638–39. The record shows Lawson is a fit parent who has remedied
the circumstances which led to her relinquishment of custody and returning
custody to Lawson is in Child's best interest. We find the family court erred in
dismissing Lawson's request for a change of custody of Child. Accordingly,
custody of Child is returned to Lawson.

II. CONTEMPT OF COURT
Lawson argues the family court erred by failing to find Erin in contempt of court
for violating the family court's order by preventing Lawson's visitation on Child's
birthday. This issue is not preserved for appellate review.

"It is well settled that . . . an appellate court cannot address an issue unless it was
raised to and ruled upon by the trial court." Lucas v. Rawl Family Ltd.P'ship, 359
S.C. 505, 510–511, 598 S.E.2d 712, 715 (2004). "When the family court does not
rule on an issue presented to it, the issue must be raised by a post-trial motion to be
preserved for appeal." Bodkin v. Bodkin, 388 S.C. 203, 219, 694 S.E.2d 230, 239
(Ct. App. 2010). "Except as provided by Rule 212 and Rule 208(b)(1)(C) and (2),
the appellate court will not consider any fact which does not appear in the Record
on Appeal." Rule 210(h), SCACR. "[T]he appellant has the burden of providing
an adequate record on appeal." Solley v. Navy Fed. Credit Union, Inc., 397 S.C.
192, 214, 723 S.E.2d 597, 608 (Ct. App. 2012).

CONCLUSION
Accordingly, we find the family court erred in dismissing Lawson's request for
change of custody. Appellant Valerie Lawson is awarded custody of Child. We
remand to the family court for implementation of a transition plan consistent with
this opinion. See Adoptive Couple v. Baby Girl, 404 S.C. 490, 493, 746 S.E.2d
346, 347 (2013) ("The matter of transfer of physical custody shall be accomplished
in accordance with [Child's] best interest, as determined by the family court.").

REVERSED and REMANDED.3

HUFF, SHORT, and WILLIAMS, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.