Last year I wanted to try and single out what I felt to be one of our South Carolina appellate courts’ published opinions which I believed to be of some significance for our State’s family court bench and bar and/or which, at least in my view, represented a unique use of our existing statutes, court rules, or Supreme Court orders (1) to achieve a successful outcome for that affected client, (2) to provide appellate court “clarity” to certain difficult and complex areas of family law, and/or (3) to perhaps add another, significant “arrow into the quiver” of the family court bar moving forward.
For 2016, I had selected the case of Noojin v. Noojin, which not only had a significantly interesting fact-pattern, but one which addressed in great detail a range of contempt of court-related and parental alienation-related issues; and which also provided our family court bar with a more defined “road map” on when and how to address these issues both with the client (in advance of trial) and at the trial of the case which involved these issues.
And with that brief background stated, I have selected as my “2017 South Carolina Family Law Case Of The Year” the case of Ashburn v. Rogers and SCDSS/CSD, S.C.Ct.App., Opinion No. 5505, filed August 2, 2017.
In Ashburn v. Rogers Beaufort attorney, Sharnaisha Naki Richardson-Bax, utilized and applied Rule 60(b)(5), SCRCP in a manner which ultimately opened the proverbial door for our appellate courts to revisit – and offer some clarity to – the legal doctrines of res judicata and collateral estoppel. [The Ashburn decision turned on the inequitable notion that once a putative father made an admission of paternity of a child who, it was subsequently determined, was not his child, then under these legal theories of res judicata and collateral estoppel, it was too late to challenge that admission.]
Briefly, Michael Ashburn and April Rogers were involved in a sexual relationship “lasting from late 1999 to early 2000”, and while in this relationship Ms. Rogers became pregnant and ultimately gave birth to a son in October 2000; she claimed that Mr. Ashburn was the father, and, although he did not initially challenge paternity, in May, 2002, he did ultimately request a genetic test through the Child Support Division of the South Carolina Department of Social Services, but he failed to submit any sample for this genetic test (of significance is that in or about March, 2001, Ms. Rogers was seeking child support through the SCDSS/CSD [“DSS”] and having named Mr. Ashburn as the putative father, he was then served with “an Administrative Process Notice of Financial Responsibility and Paternity Determination”, and, although given the opportunity by DSS at that administrative conference to request a genetic test, Mr. Ashburn waived that right to it, and he agreed to pay $200 a month in child support).
Mr. Ashburn was in the military during the time of his relationship with Ms. Rogers, and stationed at Parris Island, and in June, 2003, he became re-stationed in Japan, losing all contact with Ms. Rogers and her child. Through the years, however, he continued paying child support (“…Ashburn dutifully paid child support for Child’s entire life, sixteen years”).
In November, 2012, Ms. Rogers commenced her own action in family court seeking to modify Mr. Ashburn’s child support obligation; and, notably (from the opinion), “(T)he following month, Ashburn requested visitation with Child, and the parties agreed to arrange a visit. Ashburn met Child in Charleston, South Carolina. During this visit, Ashburn obtained a genetic sample from Child and submitted his and Child’s genetic samples with a drug-store DNA kit for paternity testing. The test excluded Ashburn as Child’s biological father”.
The opinion goes on to state that “(B)ased on the results of the self-conducted DNA test, Ashburn filed an independent action to disestablish paternity in April 2013 on the grounds of fraud and material mistake of fact. DSS scheduled genetic testing of Ashburn and Child, and the results confirmed Ashburn was not the biological father of Child.” (Emphasis added) … The family court found there was no extrinsic fraud to support relief from the previous determination of paternity and Ashburn was the legal father of Child. Ashburn filed a motion for reconsideration arguing for the first time, pursuant to Rule 60(b)(5), SCRCP, ‘it [was] no longer equitable that the judgment should have prospective application.’ ” (Emphasis added).
According to the published opinion, Ashburn advanced “two reasons” why the family court’s order should be reversed: “(F)irst, … pursuant to Rule 60(b)(5), it is no longer equitable that the previous order establishing paternity have prospective application ; … (S)econd, Ashburn argues the family court failed to address the adverse impact of the determination on the public interest. …” (Emphasis added.)
In addressing these grounds for appeal the opinion initially framed its decision by acknowledging the following: “(A)s to Ashburn’s 60(b)(5) argument, the family court, relying on Mr. G v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101 (Ct.App.1995), noted it is the policy in South Carolina that once a case is decided, it should remain decided with certain, very narrow exceptions. In proceeding to rule, the family court determined that no exception applied. Although neither the family court’s order nor the parties’ briefs on appeal discussed the application of res judicata or collateral estoppel, the family court’s effort to distinguish Mr. T (Mr. T v. Ms. T, 378 S.C. 127, 662 S.E.2d 413 (Ct.App.2008) requires that we address the doctrines here.”
Ashburn then discussed the doctrines of res judicata and collateral estoppel and noted the following (citations are omitted here):
“Under the doctrine of res judicata, ‘a litigant is barred from raising any issues that were adjudicated in the former suit and any issues that might have been raised in the former suit. However, res judicata and collateral estoppel ‘have been subjected to exceptions to their application.’ These ‘preclusive doctrines are not to be rigidly or mechanically applied and must, on occasion, yield to more fundamental concerns.’ Collateral estoppel or res judicata ‘may be precluded when unfairness or injustice results, or public policy requires it.’ ” (Emphasis added.)
The opinion then launched into a discussion of these two doctrines before ultimately arriving at this most interesting portion of the decision:
“(O)ur courts have not directly applied Rule 60(b)(5), whether brought by motion or independent action, to relieve a father from a previous order establishing paternity but have intimated that it is possible. See Mr. T … reversing a motion to dismiss and remanding for development of the record and finding that a previous determination of paternity is subject to attack under Rule 60(b)(5) if appropriate circumstances are met); Evans v. Gunter, 294 S.C. 525, 366 S.E.2d 44 (Ct.App.1988) … reversing an order granting a motion to dismiss by concluding the husband’s allegation that his wife lied to him about his paternity and induced him to sign a waiver form could be considered extrinsic fraud under Rule 60(b) and would ‘make out a case such that it would no longer be equitable’ for the previous finding of paternity to have prospective application under Rule 60(b)(5).” ,,, We find, in accordance with the previous paternity cases of our courts and instructive decisions of other jurisdictions, there exists in the present case such special circumstances warranting equitable relief from the previous finding of paternity. See Mr. T … (noting that the structure of Rule 60(b)(5) allows a court to entertain an independent action for relief from an order ‘based on such rare, special, exceptional, or unusual circumstances that may warrant equitable relief, including accident or mistake.” (Emphasis added)
This opinion continued to address various facts relating to the father-child relationship history along with the “best interests of the child” analysis; however, in my wanting to focus on the Rule 60(b)(5) argument, I wanted to spotlight the final footnote in this case, which read: “Ashburn is not seeking reimbursement for previously paid child support. In any event, Rule 60(b)(5) would not provide retroactive relief, as the rule only pertains to the prospective application of a judgment.” (Emphasis added)
Before I began drafting this post I had reached out to Mr. Ashburn’s attorney, Ms. Richardson-Bax, to inform her that I was wanting to write on this most interesting case and could have her permission to quote her. She graciously gave her permission, and this was her response: “Thank you. I appreciate your sentiment. The result didn’t result in as big of win for my client as it could have as he will not be able to recoup any funds spent in this matter. But hopefully it will help others in the future.”
And with that stated, as a matter of trial strategy and to “protect your record” – and, at a minimum, in an effort to protect your client’s position – in any case where you are seeking a modification of an existing court order which, perhaps, affects an ongoing alimony or child support obligation, I openly wonder whether every such action should include a cause of action for relief using Rule 60(b)(5) as an additional basis for the relief you seek. I fail to find in this case where a family law attorney would be precluded from asserting a “Rule 60(b)(5) relief”, and you may be precluded by your family court judge from making that assertion and arguing that position once your trial on the merits of your case has commenced. Think about that.
And good luck out there.