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Urban v. Kerscher

Court of Appeals of South Carolina

May 23, 2018

Nataschja Tonya Urban, Appellant,
v.
Leo W. Kerscher, Mary Jean Crew, and Jeffrey Brain Poston, Respondents. Appellate Case No. 2016-001213

          Heard April 11, 2018 - Filed May 23, 2018

          Appeal From Orangeburg County Michael S. Holt, Family Court Judge

          Leon Edward Green, of Leon E. Green, PC, of Aiken, for Appellant.

          James B. Jackson, Jr., of Nester & Jackson, PA, of Orangeburg, for Respondents.

          GEATHERS, J.

         This is a child custody dispute between Nataschja Urban and family friends, Leo Kerscher and Mary Crew, over Urban's minor daughter (Child). Urban appeals the ruling of the family court granting custody of Child to Kerscher and Crew. Urban argues the factors outlined in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) govern and militate the return of Child to her custody. Alternatively, Urban argues she has met the higher burden of demonstrating a substantial change in circumstances warranting the return of Child to her custody.[1]We reverse and remand.

         FACTS/PROCEDURAL HISTORY

         Urban and Jeffrey Poston were in a romantic relationship resulting in the birth of Child in October 2009. Urban and Poston never married, and until May 2014, Urban had sole custody of Child. On May 16, 2014, Urban left Child in the care of family friends, Kerscher and Crew, in Orangeburg, South Carolina, while Urban left to pursue and secure a permanent home and employment in Pennsylvania. At the time, Urban intended for Child to stay with Kerscher and Crew only for the summer of 2014. Urban's Pennsylvania employment fell through after a week, and she relocated to Mississippi, where she worked for a few months at a convenience store.

         Prior to leaving Child with Kerscher and Crew, Urban signed a letter that purported to allow them to care for Child's medical and educational needs in Urban's absence. However, Crew claimed the letter was ineffectual because her last name was incorrectly stated and the letter could not be notarized. As a result, on June 11, 2014, while Urban was still in Mississippi, Kerscher and Crew filed a complaint seeking permanent custody of Child. Specifically, Kersher and Crew requested "temporary and permanent custody of [Child], which they need[ed] for purposes of educating [Child] and providing for her medical needs." Urban was served with the complaint and filed an answer agreeing to let Kerscher and Crew have custody of Child.[2] On September 5, 2014, the family court held a final hearing on the complaint for custody and issued its final order on September 16, 2014, granting Kerscher and Crew permanent custody. Urban did not attend the final hearing, and despite the court's reference to Urban's Mississippi residence, Urban had returned to South Carolina in August.

         Two months later, on November 14, 2014, Urban filed a complaint seeking the return of Child to her custody. In April 2015, Urban filed a motion for temporary relief, seeking custody of Child during litigation. The family court held a hearing on the motion in June 2015 and issued its order maintaining Child's custody with Kerscher and Crew but granting Urban visitation.

          The final hearing was held in March 2016, and the court issued its order the following month. The court declined to return custody of Child to Urban but continued to allow Urban visitation. The court also required the child support being paid by Child's father to be sent to Kerscher and Crew. This appeal followed.

         ISSUES ON APPEAL

         1. Did the family court err in granting custody to third parties over a natural parent?

         2. Did the family court err in finding there was not a substantial change in circumstances warranting a change in custody?

         STANDARD OF REVIEW

         "[T]he proper standard of review in family court matters is de novo . . . ." Stoney v. Stoney, Op. No. 27758 (S.C. Sup. Ct. filed April 18, 2018) (Shearouse Adv. Sh. No. 16 at 11); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In a de novo review, the appellate court is free to make its own findings of fact but must remember the family court was in a better position to make credibility determinations. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52. "Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers, 420 S.C. 411, 416, 803 S.E.2d 469, 471 (Ct. App. ...


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