GALLOWAY v. GALLOWAY

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Docket Number

18611

Attorney(S)

Clyde H. Turner, Esq., of Charleston, for Appellant, Vera Jane Lusher, cites: As to there being no proper service of the Summons, Complaint and Notice of Application for the appointment of Guardian ad Litem, on the infant: 41 S.C. 337, 19 S.E. 669; 66 S.E.2d 73. As to the Court erring in finding as a fact that: service upon a minor by some undesignated and apparently unknown person other than a legally authorized person, satisfies the service section of our adoption statute: 143 S.C. 98, 141 S.E. 155; 88 S.C. 1, 70 S.E. 420. Jack H. Page, Esq., of Conway, for Respondents, cites: As to the trial Judge properly finding as a fact that the infant was duly served with a copy of the Summons, Complaint and Notice of Application for Appointment of Guardian ad Litem: 72 S.E. 149, 89 S.C. 508.

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Smart Summary

Factual and Procedural Background

In 1955, Ben D. Galloway was granted a divorce from Vera Jane Lusher (appellant), with custody of their minor daughter, Jeannette Galloway, awarded to Ben. The appellant later remarried and relocated to Charleston County, while Ben and Jeannette remained in Horry County. In April 1962, the respondents initiated adoption proceedings for Jeannette in the Civil and Criminal Court of Horry County. A guardian ad litem was appointed for the minor, who submitted an answer. On August 23, 1962, the court issued a decree legally adopting Jeannette by the respondents. Approximately three and a half years later, the appellant moved to set aside the adoption decree, alleging among other grounds that Jeannette had not been personally served according to adoption statutes. The trial court denied this motion, finding that Jeannette had been duly served. The appellant appealed from this order.

Legal Issues Presented

Whether the minor, Jeannette Galloway, was properly served with summons, complaint, and notice of application for appointment of guardian ad litem in compliance with adoption statutes.
Whether the trial court erred in refusing to set aside the adoption decree based on the alleged improper service.
Whether notice of the motion to set aside the adoption decree was required to be given to the minor and her guardian ad litem, and if failure to provide such notice affected the court's jurisdiction or the minor's rights.

Arguments of the Parties

Appellant's Arguments

There was no proper service of the summons, complaint, and notice of application for appointment of guardian ad litem on the minor.
The court erred in finding that service upon the minor by an undesignated and apparently unknown person satisfied the statutory service requirements.

Respondents' Arguments

The trial judge properly found that the minor was duly served with the necessary documents.
The minor was not made a party to the motion to set aside the adoption decree, and no notice of the motion was given to her or her guardian ad litem, which the respondents assert as a sustaining ground, though they did not argue it on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
41 S.C. 337, 19 S.E. 669; 66 S.E.2d 73	Proper service of summons, complaint, and notice of application for appointment of guardian ad litem on a minor.	Appellant cited these cases to argue improper service; court considered service as a factual issue.
143 S.C. 98, 141 S.E. 155; 88 S.C. 1, 70 S.E. 420	Service upon a minor by an undesignated person does not satisfy statutory service requirements.	Appellant cited these to challenge the trial court's factual finding on service.
72 S.E. 149, 89 S.C. 508	Trial court's finding of proper service of summons and complaint on a minor.	Respondents relied on this precedent to support the trial court's factual findings.
Cumbie v. Cumbie, 245 S.C. 107, 139 S.E.2d 477; Jackson v. Walters, 246 S.C. 486, 144 S.E.2d 422; Caughman v. Caughman, 247 S.C. 104, 146 S.E.2d 93	Courts must protect the interests and rights of minors, including on appeal, even ex mero motu.	Supported the court's emphasis on protecting the minor's rights despite procedural posture.
Varser v. Smith, 187 S.C. 328, 197 S.E. 394	Notice of motion is required where a party has a right to resist relief and to be heard.	Used to support the necessity of notice to parties entitled to be heard on motions.
Horger v. Simms, 131 S.C. 117, 126 S.E. 430	Nature of issues affecting minors entitles them to notice and opportunity to be heard.	Applied to conclude that the minor was entitled to notice of the motion to set aside adoption.
Cribbs v. Floyd, 188 S.C. 443, 119 S.E. 677	Adoption establishes a parent-child relationship with reciprocal rights and obligations, affecting the child's legal status as heir.	Referenced to underscore the paramount interest of the minor in adoption proceedings.

Court's Reasoning and Analysis

The court emphasized that the welfare of the minor child is the paramount consideration in adoption proceedings and in any attempts to annul or vacate adoption decrees. It recognized the duty of the court to protect the interests of parties under legal disability, including minors, even on appeal and regardless of procedural limitations. The court noted that the motion to set aside the adoption raised a factual question concerning whether the minor had been properly served, an issue affecting the court's jurisdiction over the minor. The court held that the minor was entitled to notice of the motion and an opportunity to be heard, as the motion sought to divest her of rights established under the adoption decree. Because the minor and her guardian ad litem were not notified or represented in the motion to set aside the adoption, the court declined to consider the motion on its merits. The court thus dismissed the appeal on the basis that issues affecting the rights of minors cannot be decided without proper notice and representation.

Holding and Implications

Holding: The appeal is dismissed.

Implications: The court's dismissal directly upheld the adoption decree and denied the appellant's motion to set it aside. The decision underscores the necessity of providing notice and representation to minors in proceedings that affect their legal rights, particularly in adoption cases. No new precedent was established; rather, the court reaffirmed existing principles prioritizing the welfare and procedural protections of minors.

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I. B. GALLOWAY and Maggie Galloway, Respondents, v. Ben GALLOWAY, VeraJane Lusher and Jeannette Galloway, a minor, of whom Vera Jane Lusher(Keenum) is, Appellant.

February 28, 1967.

MOSS, Chief Justice.

This is an appeal by Vera Jane Lusher (Keenum) from an order of the Civil and Criminal Court of Horry County refusing to set aside a decree of adoption.

On June 25, 1955, Ben D. Galloway was granted a divorce from the appellant. By the terms of the divorce decree he was given custody of Jeannette Galloway, who was born of this marriage on August 12, 1953. Subsequent to the divorce, the appellant remarried and moved to Charleston County; Ben D. Galloway and Jeannette Galloway remained in Horry County. In April, 1962, the respondents instituted an action in the Civil and Criminal Court of Horry County against Ben D. Galloway, Jeannette Galloway and the appellant for the adoption of Jeannette Galloway.

Answers to the complaint were filed by the appellant and Ben D. Galloway. Upon petition of the defendant, Ben D. Galloway, a guardian ad litem was appointed for the minor defendant, and he submitted an answer on her behalf. On August 23, 1962, after a hearing in the matter, the Judge of the Civil and Criminal Court of Horry County issued a decree declaring Jeannette Galloway to be the legally adopted child of the respondents. Thereafter, approximately three and one-half years after the rendering of the adoption decree, the appellant gave notice to the attorney who had represented the respondents in the adoption proceedings of a motion to set aside the adoption decree upon three grounds, among which was the ground that the minor, Jeannette Galloway, had not been served personally pursuant to the adoption statutes then in effect. The motion was heard by the trial court on May 3, 1966. The record indicates that at the hearing on the motion appearances were made by counsel for the appellant and counsel for the respondents. It is admitted that no appearance was made in behalf of the minor, Jeannette Galloway and that notice of the motion was not served upon her, nor was her former guardian ad litem given notice of such motion.

The trial judge found as a fact that Jeannette Galloway was duly served with a copy of the summons, complaint and notice of application for the appointment of a guardian ad litem in the adoption proceeding. By his order, dated May 9, 1966, the trial judge denied the motion of the appellant.

By her exceptions in appealing from the foregoing order, the appellant challenged the trial judge's findings of fact. The respondents assert several additional sustaining grounds, among which is that the minor, Jeannette Galloway, had not been made a party to the action to set aside the adoption decree and that no notice thereof had been given to her or her guardian ad litem. However, the respondents have not argued such additional sustaining grounds in their brief and ordinarily under such circumstances the same would be considered abandoned.

The welfare of a minor child is the paramount consideration in all proceedings involving adoption of children and the courts adhere to the view that the welfare of the minor child is also a paramount consideration in cases involving annulment or vacation of an adoption decree. 2 Am. Jur.2d, Adoption, Section 82, page 926. It is the duty of the court to protect the interest of parties under legal disability. This duty applies on appeal to this court. The duty to protect the rights of minors has precedence over procedural rules otherwise limiting the scope of review and matters affecting the rights of minors can be considered by this court ex mero motu. Cumbie v. Cumbie, 245 S.C. 107, 139 S.E.2d 477; Jackson v. Walters, 246 S.C. 486, 144 S.E.2d 422; Caughman v. Caughman, 247 S.C. 104, 146 S.E.2d 93.

As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard. Where notice is necessary, it should be given to all parties who have an interest in the question to be determined on the motion, and who have appeared in the action. 60 C.J.S., Motions and Orders, § 15, page 15, and § 16, page 17. If the adverse party appears for any reason entitled to be heard in opposition to the whole or any part of the relief sought, the application must be made on notice to such adverse party. Varser v. Smith, 187 S.C. 328, 197 S.E. 394. In this case, whether the minor was, in fact, served was a question of fact upon which she was entitled to be heard. The issue sought to be raised by the motion of the appellant was related to the question of compliance with the statutory provisions relating lating to adoption and, indeed, to the jurisdiction of the court over the minor defendant. We think the nature of the issue thus involved is such as to entitle the minor whose rights may be affected by the order to notice. Horger v. Simms, 131 S.C. 117, 126 S.E. 430.

It has been broadly stated that under adoption proceedings there are four interested parties: (1) The minor child; (2) the parents or those standing in place of the parents; (3) the party seeking to adopt; and (4) the state. Undoubtedly, the person standing highest in interest is the child, and when adopted its status for life is entirely changed. The adoption of a child establishes the relation of parent and child, imposes upon the parties the reciprocal duties and obligation of that relation, and impresses upon and invests the child with the rights and qualities of a child, as an heir at law of the adoptive parents. Cribbs v. Floyd, 188 S.C. 443, 119 S.E. 677.

The relief sought by the motion of the appellant was to set aside the adoption of the minor, Jeannette Galloway; and such relief would have had the effect of divesting the child of her rights under the adoption decree, without notice and representation. This court will not pass upon issues affecting the rights of minors when they are not properly before the court.

Appeal dismissed.

LEWIS, BUSSEY and BRAILSFORD, JJ., and G. BADGER BAKER, Acting J., concur.