Singh v. Singh

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Gunjit Rick Singh, Petitioner,

v.

Simran P. Singh, Respondent.

Appellate Case No. 2020-000457

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County
Gordon B. Jenkinson, Family Court Judge
Judy L. McMahon, Family Court Judge
Jocelyn B. Cate, Family Court Judge
Jack A. Landis, Family Court Judge
Daniel E. Martin, Jr., Family Court Judge

Opinion No. 28057
Heard June 17, 2021 – Filed September 8, 2021

AFFIRMED AS MODIFIED

Robert N. Rosen, of Rosen Law Firm, LLC, of Charleston,
Sheila McNair Robinson, of Moore Taylor Law Firm,
P.A., of West Columbia, and Katherine Carruth Goode, of
Winnsboro, for Petitioner.

O. Grady Query, Michael W. Sautter, Michael Holland
Ellis, Jr., and Alexander Woods Tesoriero, all of Query
Sautter & Associates, LLC, of Charleston, for Respondent.
JUSTICE HEARN: The question presented in this case is whether South Carolina
law permits issues relating to child custody and visitation to be submitted to binding
arbitration with no oversight by the family court and no right of review by an
appellate tribunal. We believe the answer is clearly and unequivocally no.

FACTS/PROCEDURAL HISTORY

After nearly seventeen years of marriage, Respondent Simran Singh (Mother)
and Petitioner Gunjit Singh (Father) separated in January of 2012. They
subsequently entered into a settlement agreement later that year which resolved all
issues arising from their marriage, including custody and visitation matters involving
their two children, then aged eleven and two.1 Pursuant to that agreement, Mother
received primary custody, and the parties consented to submit any future disputes
regarding child support or visitation to a mutually agreed-upon arbitrator,
specifically providing that his or her decision would "be binding and non-
appealable." The family court approved the agreement and granted the parties a
divorce in February of 2013.

Approximately nine months later, Father filed an action in family court
seeking modification of custody, visitation, and child support, alleging Mother had
violated a provision of the agreement when she failed to return to South Carolina
with the children after embarking on a cross-country tour as a motivational speaker.
From January through August of 2014, four family court judges issued decisions—
one dismissing Father’s complaint due to the parties' decision to arbitrate; a second
issuing a consent order to arbitrate; and two approving amended agreements to
arbitrate. The agreements contained the following provision: "The parties fully
understand that the decision of the Arbitrator is final and binding upon them and that
they do not have the right to apply to this Court or to any other Court for relief if
either is unsatisfied with the Arbitrator's decision."2

1
The parties' older child is now emancipated.
2
Our review of the settlement agreement and the subsequent agreements to arbitrate
reveals that each amended version strengthened the arbitration provisions. For
example, the settlement agreement approved by the family court in February 2013
provided for arbitration of future disputes pertaining to child support, relocation, and
visitation, but it did not specifically address custody. Further, the family court judge
stated this on the record during the hearing on the approval of the settlement
agreement:
 The two judges who ruled on the amended agreements found them to be "fair
and equitable" as well as enforceable by the court. The arbitrator—a well-respected
Charleston family law attorney and mediator—issued a "partial" arbitration award
in August, finding a substantial and material change of circumstance affecting the
welfare and custody of the minor children, and awarding Father temporary custody.
A thirty-two-page final arbitration award was issued the next month, awarding
custody to Father. A fifth family court judge issued an order in January of 2015
confirming both the partial and final arbitration awards.

However, within days of the arbitrator's final award and months before the
family court approved it, Mother—represented by new counsel—filed a motion for
emergency relief, asking the court to vacate the arbitration awards and the prior court
orders approving the parties' agreements to arbitrate. Following a hearing on that
motion, the court issued an order confirming both the partial and final arbitration
awards "with finality" and denied the motion seeking to vacate the awards as
premature. It thus appears that four different family court judges approved—at times
apparently without a hearing—the parties' agreements to arbitrate the issues

[A]s to that part of your agreement which deals with your two children,
I want you to understand that even if I approve this agreement, if there
happens to be some change in circumstances in the future, either of you
may be able to come back before me, or another judge, and ask the court
to make changes in that part of the agreement.

In January of 2014, following the Father's request for modification of custody, the
family court approved an agreement to arbitrate the issues—including custody—and
additionally stated that the arbitrator's decision was final and not appealable. In
March, the parties amended their agreement to arbitrate, which was approved by the
family court, by reiterating the finality of the arbitrator's decision and adding a
$10,000 monetary penalty as a consequence of challenging that decision. In August,
the family court approved a supplemental amended agreement to arbitrate, which
retained the aspects above in addition to a new provision acknowledging the
arbitration rules do not expressly authorize arbitration of children's issues, but
releasing any potential claims against the arbitrator or the parties' attorneys for
exceeding "their authorization and/or the authorization of the applicable ADR rule
of the Family Court." Thus, both the scope of the issues subject to arbitration and
the parties' implicit recognition of the uncharted legal territory of arbitrating
children's issues expanded from the time of the settlement agreement to the
supplemental amended agreement to arbitrate.
involving the children, and a fifth judge confirmed the validity of the arbitration
award.

Thereafter, Mother filed five separate Rule 60(b)(4), SCRCP, motions to
vacate all the orders approving the parties' agreements to arbitrate. Although Mother
requested the motions be consolidated for a hearing before a single judge in the
interest of judicial economy, that motion was denied. Five separate hearings ensued,
all of which ultimately resulted in orders denying mother’s motions. Mother
thereafter filed five notices of appeal from orders denying her motions, and the court
of appeals consolidated them. The court of appeals issued its unanimous decision in
December of 2019, holding that the parties could not divest the family court of
jurisdiction to determine issues relating to custody, visitation, and child support.
Singh v. Singh, 429 S.C. 10, 30, 837 S.E.2d 651, 662 (Ct. App. 2019).3 One month
prior thereto, another panel of the court of appeals issued a decision in Kosciusko v.
Parham, 428 S.C. 481, 505, 836 S.E.2d 362, 375 (Ct. App. 2019), holding the family
court did not have subject-matter jurisdiction to approve the binding arbitration of
children's issues.4 We granted certiorari in this case because the court of appeals
based its decisions on slightly different grounds, and affirm as modified.

ISSUE

Did the court of appeals err in concluding the family court could not delegate
its exclusive jurisdiction to determine the best interest of the child?

STANDARD OF REVIEW

Generally, appellate courts review the decision of the family court de novo,
with the exception of evidentiary and procedural rulings. Lewis v. Lewis, 392 S.C.
381, 386, 709 S.E.2d 650, 652 (2011); Stoney v. Stoney, 422 S.C. 593, 595 n.2, 813
S.E.2d 486, 487 n.2 (2018) ("Lewis did not address the standard for reviewing a
family court's evidentiary or procedural rulings, which we review using an abuse of
discretion standard."). While this consolidated appeal results from multiple orders
denying Mother's Rule 60(b) motions, the underlying question stems from the family

3
We note the court of appeals concluded the $10,000 penalty provision was
"astonishing." Because neither party has challenged the monetary penalty before us
on appeal, we express no opinion as to whether that provision is enforceable.
4
Following the issuance of the court of appeals' decision in Kosciusko, the parties
in that case apparently settled their differences and no petition for certiorari was
filed.
court's legal authority to delegate its jurisdiction to an arbitrator, which is a question
of law for the Court to review de novo.

DISCUSSION

We begin our analysis with the recognition that family courts are statutory in
nature and therefore possess only that jurisdiction specifically delegated to them by
the South Carolina General Assembly, which was granted authority over these issues
in Article V, section 12 of the South Carolina Constitution. Pursuant to that
constitutional grant of authority, the General Assembly created the family courts and
established the parameters of their jurisdiction. S.C. Code Ann. § 63-3-530 (2010
& Supp. 2020) (stating the family court has exclusive jurisdiction over forty-six
matters listed); State v. Graham, 340 S.C. 352, 355, 532 S.E.2d 262, 263 (2000)
("The family court is a statutory court created by the legislature and, therefore, is of
limited jurisdiction."). Accordingly, the family court's jurisdiction is "limited to that
expressly or by necessary implication conferred by statute." Graham, 340 S.C. at
355, 532 S.E.2d at 263. Significantly, subsection 63-3-530(39) provides the family
court with exclusive jurisdiction:

[T]o require the parties to engage in court-mandated mediation
pursuant to Family Court Mediation Rules or to issue consent
orders authorizing parties to engage in any form of alternate
dispute resolution which does not violate the rules of the court
or the laws of South Carolina; provided however, the parties in
consensual mediation must designate any arbiter or mediator by
unanimous consent subject to the approval of the court[.]

S.C. Code Ann. § 63-3-530(39) (2010) (emphasis added). While this provision
envisions arbitration in some areas, our court rules and jurisprudence confirm that
children's matters are not within the ambit of issues subject to arbitration.

Our Alternative Dispute Resolution Rules (ADR) contemplate both mediation
and arbitration of family court matters, but implicitly limit binding arbitration to
issues of property and alimony. See Rule 3(a), SCADR (requiring "all contested
issues in domestic relations actions filed in family court" be subject to mediation
unless the parties agree to conduct arbitration); Rule 4(d)(1), SCADR (providing "[i]f
there are unresolved issues of custody or visitation, the court may . . . order an early
mediation of those issues upon motion of a party or upon the court's own motion")
(emphasis added); Rule 4(d)(2), SCADR (stating "the parties may submit the issues
of property and alimony to binding arbitration in accordance with subparagraph (5)");
Rule 4(d)(5), SCADR (noting "[i]n lieu of mediation, the parties may elect to submit
issues of property and alimony to binding arbitration in accordance with the Uniform
Arbitration Act, S.C. Code Section 15-48-10 et. seq., or submit all issues to early
neutral evaluation pursuant to these rules"). We agree with the court of appeals'
decision in Kosciusko, 428 S.C. at 498, 836 S.E.2d at 371, which applied the canon
of construction expressio unius est exclusio alterius, meaning to express or include
one thing implies the exclusion of another. Accordingly, because the drafters of Rule
4(d), SCADR, expressly included arbitration of property and alimony but only
addressed custody and visitation in the context of early mediation, it can be fairly
implied that the rule does not permit binding arbitration of children's issues.5 Thus,
to the extent that the court of appeals' opinion in this case suggests our ADR rules do
not prohibit arbitration of children's issues, we modify that portion accordingly.

Further, our construction of the ADR rules mirrors the jurisprudence of this
state, which has consistently recognized the authority of the family courts over issues
regarding children. In the seminal decision of Moseley v. Mosier, this Court stated
that "family courts have continuing jurisdiction to do whatever is in the best interests
of the child regardless of what the separation agreement specifies." 279 S.C. 348,
351, 306 S.E.2d 624, 626 (1983). Following Moseley, the court of appeals decided
Ex parte Messer involving a separation agreement which contained an arbitration
provision. 333 S.C. 391, 395, 509 S.E.2d 486, 487-88 (Ct. App. 1998). The court
held the provision invalid as not meeting the requirement of conspicuousness, but it
reiterated that "Moseley makes it clear that except for matters relating to children,
over which the family court retains jurisdiction to do whatever is in their best interest,
parties to a separation agreement may 'contract out of any continuing judicial
supervision of their relationship by the court.'" Id. (quoting Moseley, 279 S.C. at 353,
306 S.E.2d at 627) (emphasis added). Approximately a year after Messer, the court
of appeals again emphasized the distinction between arbitrating issues pertaining to

5
We acknowledge that the Uniform Family Law Arbitration Act contemplates
arbitration of children's issues while also granting the family court the power to
vacate an unconfirmed arbitration award if the moving party demonstrates the award
is not in the best interest of the child. See Unif. Family Law Arbitration Act § 19(b)
(Nat'l Conference of Comm'rs on Unif. State Laws 2016). In determining the best
interests of the child, the drafter's of this model legislation provided two choices for
reviewing the arbitration award—either de novo or limited to "the record of the
arbitration hearing and facts occurring after the hearing." Id. at § 19(d). Only four
states have enacted this legislation, and South Carolina is not one of them. See
Family Law Arbitration Act, UNIFORM L. COMMISSION,
https://www.uniformlaws.org/committees/community-home?CommunityKey
=ddf1c9b6-65c0-4d55-bfd7-15c2d1e6d4ed (last visited Sept. 7, 2021).
children versus property and alimony matters. In Swentor v. Swentor, the court
declined to set aside an arbitration award concerning the equitable apportionment of
the marital estate, but specifically limited its decision to property and alimony issues.
336 S.C. 472, 486 n.6, 520 S.E.2d 330, 338 n.6 (Ct. App. 1999) ("Our holding, of
course, is limited to arbitration agreements resolving issues of property or alimony,
and does not apply to agreements involving child support or custody.") (emphasis
added).

Accordingly, we reject Father's contention that the General Assembly has in
any way authorized family courts to approve agreements to arbitrate children's issues.
Instead, our reading of the statutes and court rules is consistent with the analysis of
the court of appeals in Kosciusko: by specifically providing for the arbitration of
property and alimony issues in the ADR rules, the General Assembly intended that
children's issues not be subject to arbitration. We likewise reject Father's contention
that the statements in Messer and Swentor placing children's issues in a different
category from property and alimony matters was mere dicta; rather, that language
was integral to those decisions because it delineated the scope of permissible
arbitration in family court.

Moreover, apart from the ADR rules and our case law, children's fundamental
constitutional rights are at stake here. See Ex parte Tillman, 84 S.C. 552, 560, 66 S.E.
1049, 1052 (1910) ("[T]here is a liberty of children above the control of their parents,
which the courts of England and this country have always enforced."). As the court
of appeals so aptly stated: "Longstanding tradition of this state places the
responsibility of protecting a child's fundamental rights on the court system." Singh,
429 S.C. at 23, 837 S.E.2d at 658. We agree with the court of appeals that the family
court cannot delegate its authority to determine the best interests of the children based
on the parens patriae doctrine.6 Parents may not attempt to circumvent children's
rights to the protection of the State by agreeing to binding arbitration with no right of
judicial review. This has never been the law in South Carolina, and our decision
today unequivocally holds arbitration of children's issues is not permitted.7

6
Parens patriae is Latin for "parent of the country." Alfred L. Snapp & Son, Inc. v.
Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 n.8 (1982). This doctrine recognizes
that it is the State's duty to protect those who cannot protect themselves, including
minor children in this context. Id. at 600 (discussing the origins and development
of parens patriae).
7
In denying Mother's Rule 60(b) motions, two of the five family court judges found
Mother was estopped from challenging the validity of the court orders and the
 CONCLUSION

Consistent with the reasoning herein, we affirm as modified the opinion of the
court of appeals vacating the arbitration award and the underlying orders approving
the parties' right to arbitrate issues involving their children. Custody of the minor
child will continue to remain with Father until otherwise ordered by the Charleston
County Family Court.

AFFIRMED AS MODIFIED.

BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.

arbitration award. Father contends Mother did not appeal the estoppel finding,
rendering it the law of the case and invoking the two issue rule. We believe Mother
sufficiently challenged the estoppel findings both before the family court and on
appeal. While Mother did not use the term "estoppel" in her opening brief before the
court of appeals, she did argue the family court erred by focusing on the parents'
conduct rather than the children's constitutional rights. Buist v. Buist, 410 S.C. 569,
575, 766 S.E.2d 381, 383-84 (2014) (noting that a party need not use the precise
legal term to preserve an issue, but "the party nonetheless must be sufficiently clear
in framing his objection so as to draw the court's attention to the precise nature of
the alleged error"). Further, Mother specifically argued that parents cannot waive
the type of constitutional rights at issue, and while waiver and estoppel are distinct
concepts, the doctrines sometime "merge into each other with almost imperceptible
gradations, so that it is difficult to determine the exact point where one doctrine ends
and the other begins." Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 307
S.C. 339, 344, 415 S.E.2d 384, 388 (1992) (citation omitted). See also Johnson v.
S.C. Dep't of Prob., Parole, & Pardon Servs., 372 S.C. 279, 284, 641 S.E.2d 895,
897 (2007) ("[L]ack of subject matter jurisdiction in a case may not be waived and
ought to be taken notice of by an appellate court."). Accordingly, the procedural
doctrines Father relies on do not apply. See Atl. Coast Builders & Contractors, LLC
v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) (stating preservation rules
are not a "gotcha" game aimed at embarrassing attorneys or harming litigants and
noting it is "good practice" to reach the merits when preservation is unclear).