Webb v. Sowell

Chief Justice TOAL,

dissenting.

I respectfully dissent. Appellant argues that S.C.Code Ann. § 63-3-530(A)(17), as interpreted by Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979), violates the equal protection clauses of the United States and South Carolina constitutions. I disagree.

“In reviewing a statute challenged on equal protection grounds, great deference is given to the classification created, and it will be sustained if supported by any reasonable hypothesis and not plainly arbitrary.” Mitchell v. Owens, 304 S.C. 23, 24-25, 402 S.E.2d 888, 889 (1991), citing Samson v. Greenville Hosp. Sys., 295 S.C. 359, 368 S.E.2d 665 (1988). Furthermore, a statute enacted pursuant to legislative power is presumptively constitutional. Nichols v. S.C. Research Auth., 290 S.C. 415, 351 S.E.2d 155 (1986). Finally, this Court has consistently held it will not construe a statute to do that which is unconstitutional. See Ward v. State, 343 S.C. 14, 19, 538 S.E.2d 245, 247 (2000), citing Mitchell v. Owens, 304 S.C. 23, 402 S.E.2d 888 (1991) (holding that statutes are presumed to be constitutional and will be construed so as to render them valid).

As a threshold matter, I must address the classification relied upon by the majority because it is not one before the Court. The majority holds that S.C.Code Ann. § 63-3-530(A)(17), as interpreted by Risinger, violates the equal *334protection clauses of the United States and South Carolina constitutions, finding that there is no rational basis for what it perceives to be the government’s disparate treatment of parents subject to support orders prior to a child’s emancipation and parents not subject to support orders prior to a child’s emancipation. Appellant did not raise this argument,7 but rather asserted that section 63-3-530(A)(17) violates equal protection because it treats divorced and non-divorced parents differently. Thus, in my view, the majority erroneously relies upon an argument not before the Court.

Nonetheless, assuming Appellant raised the classification relied upon by the majority, section 63-3-530(A)(17) does not treat such classes disparately. Section 63-3-530(A)(17) grants the family court jurisdiction to order continuation of a support order entered prior to a child’s emancipation, but the jurisdiction granted to the family court is not confined to such situations. Section 63-3-530(A)(17) also grants jurisdiction to award support for post-secondary education “in the discretion of the court.” That is, the court may order a parent to provide support to cover the expenses of exceptional circumstances encountered by an emancipated child, such as post-secondary education, whether or not there was a support order in effect prior to the child’s emancipation.8

Turning to the classification actually raised by Appellant, I do not agree that section 63-3-530(A)(17) treats divorced parents and non-divorced parents differently. Section 63-3-530(A)(17) does not apply only to divorced parents.9 As this *335Court has noted in a case that dealt with support for an unemancipated disabled adult child, this statutory section “treats divorced parents the same as all other parents.” Riggs v. Riggs, 353 S.C. 230, 236, 578 S.E.2d 3, 6 (2003). In Riggs, we therefore found no merit to the husband’s equal protection argument. Accordingly, pursuant to Riggs, there can be no equal protection violation in the instant case because no such legislative classification is made by the applicable clause of section 63-3-530(A)(17).

For these reasons, I would hold that the family court’s order should be affirmed.

. Appellant never raised this argument below, in brief, or at oral argument.

. The majority ignores this reading of section 63-3-530(A)(17) as well as precedent requiring it, where possible, to construe statutes in a constitutional manner. See Ward, 343 S.C. at 19, 538 S.E.2d at 247 (holding this Court will not construe a statute to do that which is unconstitutional).

. In relevant part, the statute at issue provides as follows:

The family court has exclusive jurisdiction: ...
(17) To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first; or without further order, past the age of eighteen years if the child is *335enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.

(emphasis added).