Facts and Procedural History
Husband and Wife married in Greenville County on September 18, 1997, and subsequently had three children. On May 26, 2010, the family court issued a final order and decree of divorce (Original Order). At the time of the divorce, one child was deceased; the other two children (Daughter and Son)
On March 18, 2014, Wife filed an action for modification of custody, seeking sole custody of the children, with Husband to have scheduled visitation. In the alternative, Wife sought joint custody-with equal placement between parents-and for Wife to have final decision-making authority regarding all medical and educational decisions. Wife additionally filed a motion for temporary relief. Husband filed a reply in which he sought the dismissal of Wife's motion for temporary relief, retroactive child support, and attorney's fees.
After a hearing, the family court issued a May 2, 2014 temporary order (First Temporary Order) providing the parties would maintain the status quo and abide by the terms and conditions of the Original Order. The First Temporary Order appointed a guardian ad litem (the Guardian) upon consent of the parties and authorized the Guardian "to request a second temporary hearing without prior approval of the Court."
On June 23, 2014, the Guardian filed a motion for a second temporary hearing, requesting that the family court address the temporary issues raised by the parties; the court held a
After the parties were unable to resolve the case at mediation, the family court appointed Dr. Luther A. Diehl, a clinical psychologist, to conduct a comprehensive custody evaluation. Following a five-and-a-half-day hearing, the family court issued an order on February 12, 2016.
Wife filed a notice of appeal with this court; however we returned jurisdiction to the family court to clarify its child support calculation. The family court issued a second amended order on February 2, 2018, clarifying its child support calculation.
On appeal from the family court, the appellate court reviews factual and legal issues de novo. Stoney v. Stoney ,
Law and Analysis
I. Joint Custody
Wife argues the family court erred in setting the parameters of the joint custody arrangement and its findings are not supported by a preponderance of the evidence. Specifically, Wife asserts the court erred in giving Husband primary physical custody of the children because the schedule creates more stress and conflict among the parties whilst simultaneously placing an unfair physical and financial burden on Wife. Wife therefore contends the current joint custody arrangement is not in the best interest of the children. Wife further argues the family court gave Daughter's testimony too much weight and failed to properly consider the recommendations of Dr. Diehl. Wife maintains equal physical placement, as set forth in her parenting plan, is in the children's best interest. We disagree.
"In a child custody case, the welfare of the child and what is in the child's best interest is the primary, paramount, and controlling consideration of the court." McComb v. Conard ,
Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.
According to our de novo review of the record, the underlying conflict arose when Husband sent wife an email in November 2013, asking Wife to start paying child support pursuant to the Original Order, which provided Wife's support obligation would commence upon her completion of the CRNA program.
Prior to this action, Husband had primary custody of the children, and Wife had generous visitation. In her motion seeking a custody modification, Wife alleged her completion of her CRNA degree studies and subsequent employment constituted a substantial change in circumstances warranting an award of joint custody. During the pendency of this case, the family court issued the Second Temporary Order, granting temporary joint custody of the children. Under this order, Husband had primary physical placement of the children, and Wife had expanded visitation consisting of every other weekend
Both parties submitted proposed parenting plans to the court. Husband's plan proposed either the arrangement from the Original Order or the arrangement from the Second Temporary Order. Wife's plan proposed either joint custody with her having primary placement and partial decision-making authority or joint custody with equal physical placement, alternating on a week-to-week basis, and divided decision-making authority.
At the hearing, Husband and Wife's testimony largely focused on the problems in their relationship. Specifically, conflicts between the parties arose when scheduling visitation and appointments and making decisions regarding the children's schooling and extracurricular activities. In his custody evaluation report,
Similarly, in her report, the Guardian noted both Husband and Wife "demonstrated the capacity to meet the needs of the children." She reported the children were "bright, engaging, respectful, and well-mannered" and both children appeared to have friends and enjoy school. The Guardian stated Daughter had "a responsible, mature nature [,] which seems well beyond that of some of her peers." She noted Daughter was very aware of the tension between her parents, and this caused Daughter anxiety. Suzie Simon, Daughter's therapist,
She's expressed to me that she likes the current arrangement where she's at [Husband's] house every night and she's at [Wife's] in the afternoon and then the every other weekend. She likes that she gets to see everybody in a given week. She likes that she doesn't have to pack.
Simon stated Daughter additionally expressed concern over a week-to-week arrangement because she and Son would go longer periods of time without seeing their other siblings.
Dr. Diehl's evaluation of Daughter was consistent with Simon's testimony. He noted Daughter had a positive relationship with both parents. According to Dr. Diehl, Daughter expressed concern regarding a potential week-to-week custody
In his evaluation of Son, Dr. Diehl noted Son had "Autism spectrum disorder requiring mild support." Son expressed positive feelings regarding his relationship with both parents and seemed pleased with the current custody arrangement; however, Dr. Diehl noted Son indicated he felt rushed when leaving Wife's house and would like some additional time there in the afternoons after school.
In considering a modification to the current custody arrangement, Dr. Diehl, Simon, and the Guardian all recommended a balanced schedule with clearly delineated visitation and decision-making authority to reduce unnecessary communication between the parties.
After taking testimony at the hearing and receiving detailed reports from the Guardian and Dr. Diehl, the family court found the instant case presented exceptional circumstances warranting an award of joint custody. Although it found Wife's alleged change in circumstances unpersuasive, the court explained the extensive breakdown of communication between Husband and Wife warranted a custody modification. Ultimately, the court held Husband would maintain primary physical placement of the children but Wife would receive expanded visitation; pursuant to the new schedule, the children would spend extensive time with both parents each week. The court terminated the right of first refusal provision, finding the parties' various interpretations of this clause caused a majority of the conflict.
As for Wife's expanded visitation, the court provided Wife would receive alternating weekend visitation, starting Thursday after school and continuing until the start of school on Monday. In weeks for which Wife had weekend visitation (visitation weeks), Wife would additionally have after school visitation Monday through Wednesday until 7:00 p.m. During visitation weeks, the children would eat dinner with Wife. Conversely, during non-visitation weeks, Wife would have
Both parents demonstrate the ability to provide for the developmental needs of the children and the capacity to understand and meet the needs of the children. By not changing the placement of the children to a week-to-week arrangement, and, instead, adding an additional overnight to [Wife's] visitation schedule, the Court finds that it has protected the preferences of each child.
Regarding legal custody, the court awarded equal decision-making authority by allocating different subjects to each parent. In
We find the joint custody arrangement fashioned by the family court serves the best interests of the children. See McComb ,
In considering the physical placement arrangement challenged by Wife, we commend the family court's efforts to serve the needs of all parties involved. We find the court properly weighed the preferences of the children and the recommendations of the experts and guardian ad litem. See § 63-15-30 ("In determining the best interests of the child, the court must consider the child's reasonable preference for custody.");
Moreover, we find the court's allocation of legal custody coupled with the adjusted physical placement schedule and the elimination of the "first refusal" clause will help to lessen conflict between the parties while also fostering a positive co-parenting relationship. Although Wife desired equal placement in alternating weeks, the record supports the conclusion that a week-to-week arrangement would not be in the best interest of the children as the children are long accustomed to seeing both parents and their other siblings on a daily basis. Therefore, we affirm the family court's joint custody determination.
II. Attorney's Fees and Costs
Wife argues the family court erred in awarding Husband $15,000 in attorney's fees, asserting the parties
Considering the applicable factors, we find the evidence in the record supports the family court's award of attorney's fees. Here, both Husband and Wife submitted fee affidavits reflecting fee totals of $28,330.61 and $29,189.52, respectively. At the hearing, Wife testified that since her divorce from Husband, she has completed school and is working as a CRNA. She submitted a financial declaration indicating she earns a gross monthly income of $9,510.80. Husband testified he works as a general contractor and owns two businesses; his submitted financial declaration reflected a gross monthly income of $5,181. We find the disparity of incomes between the parties weighs heavily in Husband's favor. In its Amended Final Order, the family court noted Wife "earns $51,969.60 more per year" than Husband. The court further noted Husband's attorney's fees amounted to approximately forty-four percent of his gross annual income whereas Wife's accrued fees were equivalent to around twenty-five percent of her
III. Allocation of the Guardian ad Litem's Fees and Costs
Wife argues the family court erred in ordering her to pay two-thirds of the Guardian's fees, asserting the parties should equally divide the fees.
"A guardian appointed by the court is entitled to reasonable compensation, subject to the review and approval of the court."
In its allocation of the Guardian fees, the family court found both parties had the ability to pay the fees; however, it determined Wife should bear the majority of the fees and costs because (1) Wife's income was greater than Husband's, (2) Husband was the prevailing party, and (3) "a significant portion of the GAL fee was incurred solely as a result of [Wife's] continuously submitted documents and correspondence and other communication to the GAL over the course of this litigation."
Initially, we note the family court improperly weighed Husband's status as the prevailing party in its allocation of the Guardian's fee award. See Loe v. Mother, Father, & Berkeley Cty. Dep't of Soc. Servs. ,
IV. Child Support
Wife argues the family court erred in ordering her to pay child support, asserting neither party should pay such support. Wife further asserts the Amended Final Order contained typographical or clerical errors in its calculation of child support, making the requisite amount of ordered child support indiscernible.
Regarding Wife's contention that neither party should pay child support, we find the family court's award of child support to Husband is supported by the record. The Legislature has required that
In any proceeding for the award of child support, there is a rebuttable presumption that the amount of the award which would result from the application of the guidelines ... is the correct amount of child support to be awarded. A different amount may be awarded upon a showing that application of the guidelines in a particular case would be unjust or inappropriate.
We find Wife's assertion that neither party should pay child support unpersuasive. It is undisputed that Wife has not paid child support at any time since the entry of the divorce decree in 2010, even though, per the Agreement and the Original Order, she was to begin her support payments upon completion of her CRNA program and subsequent employment.
Husband has maintained primary physical custody of the children since the time of divorce, and although Wife has received expanded visitation, we find child support is warranted. The family court denied Husband's request for retroactive child support; we agree with this finding. But, as previously discussed, supra issue II, Wife is in a superior financial position. Therefore, we hold Wife has failed to meet her burden of establishing the family court's adherence to the child support guidelines was inappropriate or unjust, and we agree with the family court that the circumstances surrounding the instant case did not warrant a deviation.
Conclusion
Based on the foregoing, the orders of the family court are
AFFIRMED.
LOCKEMY, C.J., and SHORT, J., concur.
Notes
At the time of the hearing, Daughter was sixteen years old and Son was eleven years old.
Wife had not paid any child support prior to the Amended Final Order.
Both Husband and Wife had remarried at this point.
It is undisputed that the parties had a functional and communicative relationship prior to Husband's request that Wife begin her support payments as required by the Original Order.
Under the Second Temporary Order, the children were to eat all weeknight dinners at Husband's home.
In preparing his evaluation, Dr. Diehl conducted interviews and psychological evaluations of Husband, Wife, Daughter, and Son. He additionally interviewed the children's step-parents, Husband and Wife's co-parenting counselor, Daughter's therapist, and the Guardian.
The family court qualified Simon as an expert in child therapy.
Husband has two step-children with his wife, and Wife has one child with her husband.
The General Assembly imposed no "exceptional circumstances" requirement in 1996, when it codified joint custody as an option for family courts to consider in a child custody determination. See
Wife additionally argues the family court erred in ordering her to pay for the entire cost of the transcript in its February 12, 2016 order and failing to correct the error in its Amended Final Order. In his respondent's brief, Husband admits this was an error by the family court, which the court acknowledged via email dated February 16, 2016. Husband argues, and we agree, that the issue is moot because both parties have paid the court reporter as originally agreed upon. See Sloan v. Greenville Cty. ,
Wife has challenged only the family court's allocation of the Guardian's fees, not the fee amount.
Regarding Wife's challenge of the portion of the family court's order requiring her to pay all of Daughter's orthodontic expenses, we find the court's judgment was appropriate because Wife told Husband via email that she would pay for Daughter's uncovered orthodontic expenses. To the extent Wife challenges the provision of the family court's order allowing for yearly reconciliation of uninsured medical expenses, we find Wife has failed to sufficiently present this argument on appeal.