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Noojin v. Noojin

Court of Appeals of South Carolina

July 6, 2016

Ashley Noojin, Appellant,
v.
Frank Noojin, III, Respondent. Appellate Case No. 2014-001573

          Heard February 1, 2016

         Appeal From Richland County Michelle M. Hurley, Family Court Judge

          John O. McDougall, of McDougall, Self, Currence & McLeod, LLP, of Columbia, and Katherine Carruth Goode, of Winnsboro, for Appellant.

          J. Mark Taylor of Moore Taylor Law Firm, P.A., of West Columbia, for Respondent.

          GEATHERS, J.:

         Ashley Noojin, Ph.D. (Mother) appeals the family court's order finding her in contempt and requiring her to pay Frank Noojin's, M.D. (Father) attorney's fees and costs. She argues the family court erred in (1) finding she willfully violated a court order; (2) excluding an exhibit; (3) limiting cross-examination of an expert witness; and (4) ordering her to pay Father's attorney's fees and costs and failing to award her attorney's fees and costs. We affirm.

         FACTUAL/PROCEDURAL HISTORY

         Father and Mother married in 1993 and divorced on April 8, 2011. Father is a surgeon, and Mother is a licensed clinical psychologist. Two children (Son and Daughter, collectively Children)[1] were born of the marriage.

         Prior to the final divorce hearing, the couple reached a child custody agreement wherein they shared joint custody, with Mother as the primary custodial parent and Father having frequent "nights of contact and visitation with the children." The agreement outlined a "phase-in" visitation schedule from December 18, 2010, until February 19, 2011, with the regular schedule to begin on March 1, 2011. The regular schedule allotted visitation every other weekend and one evening dinner on the alternate weeks. The agreement provided Children could extend (1) the weekends to include Thursday or Sunday night when Friday or Monday was a holiday and (2) the weeknight dinner to an overnight visit. The agreement outlined specific visitation schedules for holidays, birthdays, summer vacations, and spring break.

Additionally, the agreement provided:
The visitation provided to Father in this Agreement shall take into consideration each child's wishes and desires in this regard, however, the children's wishes shall not be controlling unless otherwise specifically provided in this Agreement. . . . The parties agree to engage in family counseling with a therapist mutually agreeable to the parties. They shall attend family counseling once or twice per month and Father will use his weekday time with the children for this counseling, if necessary.

(emphasis added). In addition to the visitation schedule, the agreement provided:

Each party shall exert every reasonable effort to maintain free access and unhampered contact between the children and each of the parties and to foster a feeling of affections between the children and the other party. Neither party shall do anything which may estrange the children from the other party or injure the children's opinion as to his/her mother or father or which may hamper the free and natural development of the children's love and respect for the other party.

(emphases added). The parties also agreed to (1) refrain from making disparaging remarks about the other parent in the presence of Children and discourage third parties from doing so; (2) consult each other regarding Children's education, illness, health, welfare, and "other matters of similar importance affecting" Children; and (3) refrain from having physical or verbal confrontations or allowing another to do so in the presence of Children. On December 15, 2010, the family court approved the agreement and incorporated it into the final decree of divorce (the divorce order).

         In February 2013, Father filed a complaint for contempt and the parties proceeded to a three-day contempt hearing.[2] At the hearing, Father testified that after the standard visitation began on March 1, 2011, he did not receive regular visits. He outlined the limited visitation he received from 2011 to 2013. Specifically, in 2011, [3] according to Father, he received one of the twenty dinners; one full weekend and four partial weekends of the twenty weekends; none of the five days allotted for spring break; one of the two days allotted for Father's Day; none of the five days allotted for Thanksgiving; and two of the ten days allotted for Christmas. In 2012, Father received one of the twenty-three dinners; two weekends of the twenty-five weekends; none of the three days for spring break; five hours of the two days allotted for Father's Day; and two days of the eight days allotted for Christmas. The contempt hearing began on April 30, 2013, and from January to April 2013, Father received one of the eight dinners, none of the eight weekends, and none of the three days allotted for spring break.[4]

         Following the hearing, the family court found Mother in contempt for failure to comply with the divorce order and ordered her to pay Father $41, 375.84 in attorney's fees and costs. This appeal followed.

         ISSUES ON APPEAL

1. Did the family court err in finding Mother in contempt?
2. Did the family court err in excluding a letter Father wrote to Children on December 13, 2010?
3. Did the family court err in limiting cross-examination of a witness?
4. Did the family court err in awarding attorney's fees and costs?

         STANDARD ...


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