The August 21, 2024 Court of Appeals opinion in Bristol v. Lipnevicius clarifies what portions of domestic litigation are rendered moot by a child’s emancipation.
Bristol involved lengthy and convoluted litigation. The parties were divorced in 2007 and their initial custody litigation took place in Michigan. A 2013 Michigan order allowed Mother to relocate with Son to South Carolina and awarded Father visitation in Ohio. In 2018, Mother petitioned the Michigan court to transfer jurisdiction to South Carolina, or, in the alternative, to modify visitation. Before Michigan ruled on her petition, she filed an action in South Carolina, asking the South Carolina to take emergency jurisdiction and modify visitation.
Michigan then issued an order denying Mother’s request to transfer jurisdiction and modify Father’s parenting time. It issued a contemporaneous contempt order awarding Father make-up visitation and requiring Mother to contribute to Father’s fees and costs.
Father then filed an answer and counterclaim to Mother’s South Carolina action that, in part, sought attorney’s fees and costs. After a phone conference between the Michigan and South Carolina courts, Michigan relinquished custody jurisdiction to South Carolina, which also took jurisdiction to address the registration and enforceability of the Michigan contempt order. Father then filed an amended answer and counterclaim seeking additionally to enforce the Michigan contempt order.
In 2019, South Carolina issued various orders addressing visitation. Father filed six contempt petitions alleging Mother’s violation of those orders. He withdrew one contempt petition, one contempt petition went to final hearing, and four remained outstanding when Son turned eighteen in March 2021.
The family court held a hearing in April 2022 to determine what issues it still had jurisdiction to address. It held that because the child had emancipated, the requests to enforce and modify the Michigan orders were moot. It held the attorney’s fees and costs provisions of the Michigan contempt order was a money judgment, which it lacked jurisdiction to enforce. It dismissed Father’s four contempt petitions regarding the denials of visitation as moot finding it could not grant Father relief from those petitions. It dismissed his claim for fees and costs from the South Carolina modification action as moot. Father appealed all these findings of mootness, specifically on the issue of his claims for fees and costs.
The Court of Appeal first held Father’s counterclaim for fees and costs for defending Mother’s South Carolina visitation modification case was rendered moot when the case was dismissed. It noted the family court could not address Father’s requests for fees without addressing the merits of the underlying visitation modification action.
Father cited the case of Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990) to argue that a claim for fees survives dismissal of the underlying action. The Court of Appeals distinguished Bowen by noting that Bowen involved a voluntary dismissal where the equities justified an award of fees for defending a “meritless claim.” Here, the court noted, the family court would have had to engage in a full trial to determine the merits of Mother’s claim. This “would not promote judicial economy because it would require the family court to consider the merits of a moot issue.”
Father further argued that because the family court protected the guardian’s outstanding fees, his fee claim should have been addressed. The Court of Appeals disagreed, noting that the guardian’s fees were mandated by statute, S.C. Code § 63-3-850, and did not depend upon the outcome of the case.
Father also argued the matter was not moot because it fell under the “public importance exception” of being capable of repetition yet evading review. The Court of Appeals held neither exception applied.
However, the Court of Appeals reversed the family court on the remaining mootness issues. It held that Father’s request for attorney’s fees and costs as part of the four outstanding contempt petitions survived Son’s emancipation, even if the family court no longer had the ability to award make-up visitation. It held “Father’s pending contempt actions were not moot because even though the family court could no longer order Mother to comply with visitation due to Son’s emancipation, it could still provide Father relief in the form of compensatory contempt were he to prevail on the merits.” It cited Curlee v. Howle, 277 S.C. 377, 380-81, 287 S.E.2d 915, 916-17 (1982), which held a contempt action and the award of fees was proper despite a party coming into compliance with the order prior to the contempt hearing.
The Court of Appeals further held that the family court erred in finding the Family Court Benchmark, S.C. Sup. Ct. Admin. Order dated July 24, 2020, rendered the contempt petitions moot. That order states that temporary orders are rendered null and void if a case is dismissed under this benchmark. The Court of Appeals held that, as this case was not dismissed pursuant to the benchmark order, the temporary orders were not rendered null and void for the purpose of enforcement.
Finally, the Court of Appeals held the family court erred in not registering the Michigan contempt order for enforcement. It held the fees and costs awarded under that order were “enforceable through the family court’s contempt powers rather than treated as a money judgment.” It noted Father had sought to register the Michigan contempt order more than a year prior to Son’s emancipation and the family court should have registered the order for enforcement shortly thereafter. It held that, because the claim for fees and costs survived the Son’s emancipation, those provisions of the Michigan order should have been enforced.
Bristol addresses issues of mootness not previously addressed by our appellate courts. The essential holding is that claims for fees from custody litigation do not survive emancipation but claims for fees related to contempt and prior fee awards do.
Greg, as always, I appreciate your illumination of the issues in this case. Your comments and opinions are always helpful. Many thanks. Debra