Tyrus J. Clark, Respondent,
Amika T. Clark, Appellant. Appellate Case No. 2015-002326
November 6, 2017
From Greenville County David Earl Phillips, Family Court
Jessica Ann Salvini and Liza Marie Deever, both of Salvini
& Bennett, LLC, of Greenville, for Appellant.
Gwendolynn Wamble Barrett, of Barret Mackenzie, LLC, of
Greenville, for Respondent.
divorce action, Amika T. Clark (Wife) appeals the family
court's awarding joint custody to her and Tyrus J. Clark
(Husband) of their daughter (Child). She contends the court
erred in finding exceptional circumstances supported such an
award. She also maintains the family court erred in granting
Husband's motion to reconsider the parties'
settlement agreement in regards to the equitable division of
property. We affirm.
and Wife married in 2006 and Child was born in December of
2009. Husband has another daughter, who was born in 2002, as
a result of a previous relationship, who lives with her
mother in Arizona.
2012, Husband initiated divorce proceedings against Wife but
the matter was later administratively dismissed. He filed
another action against Wife on October 28, 2013, but did not
serve Wife. The parties continued to reside together. On
March 16, 2014, the parties had a physical altercation at
their home. Both parties called the police and alleged
physical abuse by the other party. Wife was arrested for
criminal domestic violence.
March 24, 2014, Wife filed an action against Husband seeking
a divorce and sole custody of Child, alleging physical and
verbal abuse. She also sought an order of protection against
Husband. The family court held a hearing and denied
Wife's request for the order of protection, consolidated
Husband's and Wife's actions, and issued a joint
restraining order. Husband amended his pleadings to allege
Wife physically abused him and sought a restraining order. He
also requested primary custody of Child and served Wife with
the pleadings. Shortly thereafter, the family court held an
expedited temporary hearing and as result, issued a temporary
order providing the parties would have joint custody of Child
and share parenting time on a week-to-week basis.
hearing was held May 19 through 21, 2015. At the beginning
of the hearing, the family court sent the parties out of the
courtroom to give them more time to reach an agreement in the
case. When the parties returned to the courtroom about an
hour later, they advised the court they had reached a partial
settlement agreement resolving the equitable division of
property. The parties agreed they would each keep the
personal property they had in their possession. Husband would
reimburse Wife $3, 000 for the difference in the value of
property they had in their possession. The parties provided
they agreed to a 50/50 split and gave the family court a list
of assets and debts. Some of the balances of accounts were
missing but were to be filled in by the parties with the
balances at the time of filing. Also, alimony was waived.
Both parties were questioned as to whether they wanted the
family court to approve their settlement agreement and if
they knew the agreement would not be reviewable and would be
final in nature. Both parties agreed. The family court
approved the agreement, and the hearing proceeded on the
remaining contested matters.
hearing, both parties as well as two of Child's teachers
testified Child was doing well and was happy. Wife visited
Child each day at preschool for thirty minutes during the
weeks Husband had custody of Child. Husband did the same but
less often than Wife. Husband called Linda Hutton to testify,
who the parties stipulated was an expert in the field of
psychotherapy for adolescents and children. Hutton testified
Child was doing well with the week-to-week custody
arrangement and at the current time did not need therapy.
Hutton indicated she did not know how a change in custody
might affect Child.
guardian ad litem (GAL) testified she did not have any
concerns with Child's health and well-being with either
party. However, the GAL noted the parties have a difficult
time making joint decisions. She also indicated Child first
began seeing Hutton because the GAL believed Child was
"drawing back a little bit." Yet, according to the
GAL, Hutton found Child was in the normal range and did not
observe the behavior the GAL had noticed. Still, the GAL
continued to notice the drawing back but acknowledged Hutton
was an expert in the field, whereas she was not. The GAL
believed Child would, like anyone, experience some stress
from changing the custody situation but that she was
resilient. She stated Child had "done remarkably well so
far." The GAL determined Child enjoyed and appreciated
the time she spent with Husband. The GAL provided some of her
concerns could be alleviated by parents' decision-making
responsibilities being divided with one parent making the
final decision in certain areas and the other parent making
the final decision in other areas, instead of them trying to
make decisions together. The GAL described Child as being a
joy to work with and very polite, articulate, kind, smart,
empathetic, and perceptive. The GAL stated her "biggest
concern here is that ability to get to a final conclusion
that they could move forward on" because "it's
very difficult for these parties to move forward."
testified he currently works out of his home for a computer
science business. He provided he travels some for work but
only when Child was not in his custody. He indicated his
negotiations for employment with his current employer
included his getting to pick and choose when he travels in
order to accommodate the custody schedule. He stated his
previous job with IBM involved a lot of mandatory travel.
Husband also testified that when Child was in his custody he
encouraged Child to call Wife and tell her she loves her
frequently. Husband believed a change in the custody schedule
would hurt Child because it would break the routine to which
she has become accustomed and cause her anxiety. He thought
it took Child a long time to overcome Wife's arrest and
she had "finally stabilized and . . . taken off."
testified she typically works Monday through Friday from 8:00
a.m. to 5:00 p.m. On Fridays when Child is scheduled to go to
Husband's for the week, Wife works from 11:00 a.m. to
7:00 p.m. to spend more time with Child that morning. She
provided her employer is flexible with her schedule. She
indicated she travels sometimes for her job and Child stays
with her parents at those times. Wife asserted that during
the marriage, she had been Child's primary caregiver
because Husband was often out of town for work or busy
working even when he was home. Wife was not in favor of the
current week-to-week custody schedule because she believed
Child was accustomed to her being the primary caregiver. Wife
thought Child needed a "home base" to do her
homework assignments timely, which Wife did not believe
Husband would ensure. Wife indicated she believed Husband was
a good father.
family court issued a final order and divorce decree awarding
the parties joint custody of Child, alternating placement
from week to week,  with Wife being the final decision maker.
The court noted it had concerns about the parties'
inability to communicate with one another. Based on the
totality of the record, the court determined exceptional
circumstances existed warranting joint physical custody to
continue and that it was in Child's best interest. The
court found because Child had thrived for the fourteen months
prior to the final hearing under the current placement
schedule, it was best to continue it. The family court was
concerned about the effect of adding a change in custody when
Child was soon to begin a new school program.
family court later filed a supplemental order, which included
the distribution of assets. Wife filed a motion for
reconsideration, arguing the family court should have awarded
her sole custody and Husband visitation only. The family
court denied her motion. Husband filed a motion to reconsider
and alter or amend judgment pursuant to Rules 52, 59(e), and
60, SCRCP, arguing a twelve-foot trailer included in the
marital estate was accounted for twice in the supplemental
order. The family court amended the supplemental order to
include the trailer only once. This appeal followed.