Klein v. Barrett
427 S.C. 74
| S.C. Ct. App. | 2019Background
- Parties divorced in 2010; settlement agreement (incorporated into the divorce decree) gave Husband primary custody and Wife visitation; Wife was excused from child support while attending school to become a CRNA and the obligation was to be recalculated after completion.
- By 2014 Wife completed schooling, sought modification to obtain sole or joint custody (equal placement) and final decision-making authority; Husband sought dismissal of temporary relief, retroactive support, and fees.
- Temporary orders maintained status quo initially, then granted temporary joint custody with Husband primary placement and expanded visitation for Wife; guardian ad litem (GAL) and a psychologist (Dr. Diehl) conducted evaluations and made recommendations.
- After a multi-day custody hearing, the family court issued an amended final order awarding joint custody with Husband primary physical placement, expanded visitation for Wife, equal division of decision areas, awarded Husband $15,000 attorney’s fees, allocated two-thirds of GAL fees to Wife, and ordered Wife to pay child support; the court clarified the child support calculation in a later amended order.
- Court relied on childrens’ preferences, expert and GAL recommendations that preserved daily contact with both parents and avoided a week-to-week swap that experts and the children said would be disruptive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joint custody with Husband primary physical placement is proper | Klein: current arrangement is stressful, places unfair burden on Wife; equal week-to-week placement is in children’s best interest | Barrett: maintain Husband primary placement; proposed temporary schedule or original schedule appropriate | Affirmed joint custody; Husband remains primary physical custodian with expanded visitation for Wife; court found best interests served by avoiding week-to-week swap and following experts/children’s preferences |
| Award of Husband’s attorney’s fees ($15,000) | Klein: parties should bear own fees | Barrett: fees justified given results and Wife’s higher income | Affirmed; court considered ability to pay, beneficial results, financial disparity, and Glasscock factors |
| Allocation of GAL fees (Wife to pay two-thirds) | Klein: fees should be split equally; court improperly penalized her for contacting GAL more | Barrett: Wife has greater ability to pay and incurred more GAL-related work | Affirmed; although court improperly referenced prevailing-party status, de novo review found Wife’s superior financial ability justified allocation |
| Child support obligation (Wife ordered to pay) | Klein: neither party should pay; calculation contained clerical errors | Barrett: Wife completed schooling and has higher income; support appropriate per guidelines | Affirmed; court corrected calculation using Worksheet C and ordered $747/month; no deviation from guidelines warranted given Wife’s superior income |
Key Cases Cited
- McComb v. Conard, 394 S.C. 416, 715 S.E.2d 662 (child’s best interest is controlling in custody disputes)
- Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (requirements for changing custody after divorce)
- Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (totality of circumstances governs custody decisions)
- Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486 (appellate de novo review of family court with deference on credibility)
- E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (factors for awarding attorney’s fees in family matters)
- Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (factors to consider in determining reasonable attorney’s fees)
- Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (historical view that joint custody is disfavored)
- Scott v. Scott, 354 S.C. 118, 579 S.E.2d 620 (joint custody determinations analyzed under child’s best interest)