Submitted December 4, 2017
From Horry County Timothy H. Pogue, Family Court Judge.
Michael J. Anzelmo, of Columbia, and Carolyn R. Hills and
Jennifer D. Hills, both of Hills & Hills, P.C., of Myrtle
Beach, for Appellant/Respondent.
Nicolette Mace, of West Palm Beach, Florida, for
child custody action, Brooke L. Arnold (Mother) seeks review
of the family court's order awarding Maxie Burgess
(Father) primary custody of their eight-year-old son (Son)
should Mother relocate to Florida. Mother argues the family
court erred by (1) creating a custody arrangement that
penalizes Mother for relocating to Florida; (2) applying an
initial custody analysis rather than a
change-in-circumstances analysis; and (3) imposing a joint
custody arrangement based on a finding that the parties had
been operating under a joint custody arrangement prior to
Father's filing of this action. In Father's
cross-appeal, he challenges the family court's ruling
that automatically reinstates Mother's primary custodian
status if she returns to South Carolina after relocating to
Florida. Father argues a substantial change in circumstances
must be shown before the family court may change custody and
the family court did not have jurisdiction to make such a
ruling. We reverse and remand.
and Father were never married to each other, but they were in
a committed relationship until Son was eighteen months old.
Subsequently, Mother continued her sexual relationship with
Father until 2012 "in hopes they would become a
family." Except for a few months in 2008, Father has not
paid child support, and prior to this action, Mother never
sought a court order imposing child support payments on
met LaBaron Paschall, an Army Ranger instructor, in May 2012
during Bike Week. At that time, Paschall was stationed in
Fort Bragg, North Carolina, and was vacationing in Myrtle
Beach. Both Mother and Father were living in Surfside Beach.
Mother's relationship with Paschall became romantic in
July 2012. Within the following few months, Paschall moved to
Florida, but he continued his relationship with Mother. By
early 2014, Mother and Paschall decided to marry, and they
began discussing Mother's relocation to Florida; however,
their wedding was postponed until June 27, 2015.
2014, Father was concerned about Mother taking Son to Florida
with her, and he filed this action seeking custody of Son.
Mother later filed an answer and counterclaim seeking custody
of Son. In June 2014, Mother sought counseling for Son to
address his anxiety over the possibility of moving to Florida
as well as disciplinary issues between Mother and Son.
family court conducted a final hearing from August 3 through
August 5, 2015. At the time of the hearing, Paschall was
stationed at Elgin Air Force Base near Fort Walton Beach,
Florida, and he had plans to retire by February 1, 2016, and
start a private security business. Also, at this time, Mother
was pregnant with Paschall's child. On September 28,
2015, the family court filed its final order granting Mother
and Father joint custody of Son, with Mother having primary
custody "over all issues except education" and
granting Father primary custody of Son in the event that
Mother relocated to Florida.
and Father filed cross-motions to alter or amend the final
order, and the family court granted in part and denied in
part each motion. Specifically, as to the issues relevant to
this appeal, the family court granted Father's request to
address Mother's possible return to Horry County after
relocating to Florida and ruled that Mother's primary
custody of Son would be reinstated should such a contingency
occur. The family court denied Mother's request to
reconsider its finding that the parties had a joint custody
arrangement before Father filed this action. The family court
also rejected Mother's arguments that it should have
applied a change-in-circumstances analysis to its custody
determination and it should have awarded sole custody to
Mother. These cross-appeals followed.