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Brown v. Key

Court of Appeals of South Carolina

January 4, 2019

Lori Brown, Respondent,
v.
Heather Key, Appellant. Appellate Case No. 2016-001575

          Heard November 8, 2018

          Appeal From Aiken County Dale Moore Gable, Family Court Judge

          Brian Austin Katonak, of Law Office of Brian Katonak, PA, of Aiken, for Appellant.

          Bradford M. Owensby, of Brad Owensby Law Firm, L.L.C., of Aiken, for Respondent.

          KONDUROS, J.

         Heather Key (Mother) appeals the family court's order mandating visitation between her child (Child) and Child's paternal grandmother, Lori Brown (Grandmother). Mother maintains the family court erred in finding Grandmother established her right to visitation pursuant to section 63-3-530(33) of the South Carolina Code (Supp. 2018). We reverse.

         FACTS/PROCEDURAL BACKGROUND

         Mother and Grandmother's son, Justin Cantwell (Father), dated when they were teenagers. Child is a product of that relationship, born in March 2012. In April 2013, when Child was a little over one year old, Father was killed in a car accident. Approximately two weeks prior to Father's death, the relationship between Father and Mother became strained as it appeared Father had become involved with another girl. The relationship between Mother and Grandmother had also become strained as it appeared Grandmother may have been promoting this new relationship. Prior to that time, Mother and Father had spent some time together at Grandmother's home, and after Child was born, Mother and Child would come to Grandmother's house to spend time. Mother and Child would occasionally spend the night at Grandmother's house, but about half of that time, Grandmother left to spend the night with her boyfriend.

         After Father's death, the relationship between Mother and Grandmother further deteriorated. For reasons that are not entirely clear, Mother opened a probate case for Father.[1] Notice regarding this matter was received by Grandmother immediately following Father's funeral-a matter that greatly upset Grandmother. A few weeks later, Mother sent a letter to Grandmother stating the probate case was being dropped and neither she nor Child desired anything from Father's estate. According to Mother, this was in response to harassment from Grandmother about the case. The letter also stated, "If you would like to check on [Child] or set up a time to see [Child], you can contact my parents at 803-[XXX-XXXX] or 803-[XXX-XXX]." Mother and Child lived with Mother's parents at all relevant times in this case.

         The record demonstrates the parties communicated primarily via text messages.[2]Mother offered to let Grandmother visit with Child on several occasions but wanted those visits to be supervised. Mother testified this was because Child did not have a particularly close bond with Grandmother and because significant tension existed between the parties after several incidents.[3] Mother testified she offered to let Grandmother visit with Child at least once a month for the year after Father's death. Grandmother filed a complaint against Mother in February of 2014 seeking unsupervised visitation.

         Grandmother testified she could not specifically recall the date she first contacted Mother about seeing Child but indicated she had texted Mother and Mother's mother, Lisa Day, regarding her desire to visit with Child in the months after Father's death. However, none of those text messages resulted in a visit and the exchanges often deteriorated into an argument. Specifically, in June 2013, Grandmother texted Mother, asking "Can I pick [Child] up Saturday and keep her two hours?" Either Mother or Mrs. Day responded: "I understand nobody has asked to see [Child] but Billy[4]and he meets us and comes here. The one time that you asked." The record does not reveal any further communication from Grandmother at that point, but the parties agree a visitation did not occur. Grandmother testified she sent a text on June 28 seeking to pick up Child and spend a few hours together but received no response. At some point, Mother texted Grandmother stating "This is Heather and I told you from now on it has to be supervised. I'm not trying to be mean, but she's still young and you haven't been around her but a few times." In another text, Mother stated, "so you want to see [Child]. Can be supervised. Let me know. Bye." Grandmother responded, "I will not be supervised." Mother also offered to let Grandmother and her boyfriend visit Child at Grandmother's sister's home. Grandmother responded she did not get along with her sister and would just let the judge decide.

         On Halloween of 2013, Grandmother requested to see Child and told Mother if she did not hear from her by 2 p.m. she was going to take the case to court. Mother responded that "because you don't want - - want to have somebody around, you can come by the house if you want to bring her something before I take her trick or treating." According to Grandmother, she did not go to Mother's house to visit because she was advised by her attorney not to do so. Two days later, Grandmother contacted the Department of Social Services (DSS) to do a well-being check on Child.[5]

         During the months after Father's death, Child visited with other members of Father's family-all supervised and with Mother's support. Grandmother did visit with Child in November 2014 as part of the mediation process in this case and that visit went reasonably well.[6] Grandmother testified a second visitation was set for December 2014 but when she arrived Mother and Child were not there. Mother testified her understanding was that the parties would evaluate how the November visitation went and then determine whether to have a second visitation. Mother testified she was not contacted by her attorney about a December visitation.[7]

         The family court determined Mother had unreasonably denied visitation with Grandmother for a period exceeding ninety days and "there are compelling reasons for allowing grandparental visitation; to wit, this is the only child of grandmother's deceased child and the child will likely not know her or her father or the child's paternal family unless visitation is ordered." The family court ordered visitation for every fourth weekend of the month from Saturday at 10 a.m. until Sunday at 6 p.m. This appeal followed.

         STANDARD OF REVIEW

         On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). "Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the [family] court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony." Sanders v. Sanders, 396 S.C. 410, 415, 722 S.E.2d 15, 17 (Ct. App. 2011). "The burden is upon the appellant to convince this court that the family court erred in its findings." Id.

         LA ...


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