February 5, 2019
From Greenville County Tarita A. Dunbar, Family Court Judge
Gwendolynn Wamble Barrett, of Barrett Mackenzie, LLC, of
Greenville, for Appellant.
Jonathan P. Whitehead, of The Law Offices of Jonathan P.
Whitehead, LLC, of Mauldin, for Respondent.
appeal from the family court, April Gilbert Klein (Wife)
argues the family court erred in (1) setting joint custody,
(2) ordering Wife to pay a portion of Mark Anthony
Barrett's (Husband's) attorney's fees and costs,
(3) ordering Wife to pay two-thirds of the guardian ad
litem's fees and costs, and (4) ordering Wife to pay
child support. We affirm.
and Procedural History
and Wife married in Greenville County on September 18, 1997,
and subsequently had three children. On May 26, 2010, the
family court issued a final order and decree of divorce
(Original Order). At the time of the divorce, one child was
deceased; the other two children (Daughter and Son) were ten
years old and six years old. Prior to the final hearing,
Husband and Wife entered into a settlement agreement (the
Agreement), which the family court adopted and incorporated
into the Original Order.
to the settlement agreement, Husband had primary custody of
the children while Wife received visitation in alternating
weeks of Thursday night through Sunday evening, with a
four-hour visit with the children in the off weeks.
Additionally, the Agreement required Wife to pay Husband
child support in accordance with the South Carolina Child
Support Guidelines. At the time the parties entered the
Agreement, Wife planned to attend school to become a
certified registered nurse anesthetist (CRNA). The Agreement
addressed this, providing, "Wife's child support
obligation should be recalculated if Wife's income is
reduced while attending school" but should be
"re-adjusted upon her completing school and based upon
her income at that time." The Agreement also included a
clause stating, "Both parties shall have the right of
first refusal to babysit the children." Because Wife was
enrolled as a full-time student at the time of the divorce,
the family court ordered that Wife "shall not pay child
support so long as she is in school and without income."
The court further found Wife's child support obligation
"shall be recalculated once  Wife either finishes
school or ceases to attend."
March 18, 2014, Wife filed an action for modification of
custody, seeking sole custody of the children, with Husband
to have scheduled visitation. In the alternative, Wife sought
joint custody-with equal placement between parents- and for
Wife to have final decision-making authority regarding all
medical and educational decisions. Wife additionally filed a
motion for temporary relief. Husband filed a reply in which
he sought the dismissal of Wife's motion for temporary
relief, retroactive child support, and attorney's fees.
hearing, the family court issued a May 2, 2014 temporary
order (First Temporary Order) providing the parties would
maintain the status quo and abide by the terms and conditions
of the Original Order. The First Temporary Order appointed a
guardian ad litem (the Guardian) upon consent of the parties
and authorized the Guardian "to request a second
temporary hearing without prior approval of the Court."
23, 2014, the Guardian filed a motion for a second temporary
hearing, requesting that the family court address the
temporary issues raised by the parties; the court held a
second temporary hearing on August 15, 2014, and subsequently
issued an order (Second Temporary Order) on September 26,
2014. Under the Second Temporary Order, Husband and Wife were
to exercise temporary joint custody of the children, with
Husband having primary physical placement and Wife having
expanded visitation. The family court further determined
neither party would receive child support at that time.
the parties were unable to resolve the case at mediation, the
family court appointed Dr. Luther A. Diehl, a clinical
psychologist, to conduct a comprehensive custody evaluation.
Following a five-and-a-half-day hearing, the family court
issued an order on February 12, 2016. Both Husband and Wife filed
motions to reconsider, alter, or amend the judgment, and
Husband additionally filed a motion to conform the pleadings
to the evidence. On July 5, 2016, the family court issued an
amended final order (Amended Final Order), vacating the
February order. In the Amended Final Order, the court awarded
Husband and Wife joint custody of the children, awarded
Husband $15, 000 in attorney's fees, allocated the
Guardian's fees between the parties, and ordered Wife to
pay Husband child support.
filed a notice of appeal with this court; however we returned
jurisdiction to the family court to clarify its child support
calculation. The family court issued a second amended order
on February 2, 2018, clarifying its child support
appeal from the family court, the appellate court reviews
factual and legal issues de novo. Stoney v. Stoney,
422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam).
Thus, the appellate court has the authority to find facts in
accordance with its own view of the preponderance of the
evidence. Lewis v. Lewis, 392 S.C. 381, 384, 392,
709 S.E.2d 650, 651, 655 (2011). However, this broad scope of
review does not require the appellate court to disregard the
fact that the family court, which saw and heard the
witnesses, was in a better position to evaluate their
credibility and assign comparative weight to their testimony.
Id. at 385, 392, 709 S.E.2d at 651-62, 655.
Therefore, the appellant bears the burden of convincing the
appellate court that the family court committed error or that
the preponderance of the evidence is against the family
court's findings. Id. at 392, 709 S.E.2d at 655.
argues the family court erred in setting the parameters of
the joint custody arrangement and its findings are not
supported by a preponderance of the evidence. Specifically,
Wife asserts the court erred in giving Husband primary
physical custody of the children because the schedule creates
more stress and conflict among the parties whilst
simultaneously placing an unfair physical and financial
burden on Wife. Wife therefore contends the current joint
custody arrangement is not in the best interest of the
children. Wife further argues the family court gave
Daughter's testimony too much weight and failed to
properly consider the recommendations of Dr. Diehl. Wife
maintains equal physical placement, as set forth in her
parenting plan, is in the children's best interest. We
a child custody case, the welfare of the child and what is in
the child's best interest is the primary, paramount, and
controlling consideration of the court." McComb v.
Conard, 394 S.C. 416, 422, 715 S.E.2d 662, 665 (Ct. App.
2011). "In order for a court to grant a change in
custody, there must be a showing of changed circumstances
occurring subsequent to the entry of the divorce
decree." Latimer v. Farmer, 360 S.C. 375, 381,
602 S.E.2d 32, 35 (2004).
Because the best interest of the child is the overriding
concern in all child custody matters, when a non-custodial
parent seeks a change in custody, the non-custodial parent
must establish the following: (1) there has been a
substantial change in circumstances affecting the welfare of
the child and (2) a change in custody is in the overall best
interests of the child.
Id. "While numerous prior decisions set forth
criteria that are helpful in such a determination, there
exist no hard and fast rules and the totality of
circumstances peculiar to each case constitutes the only
scale upon which the ultimate decision can be weighed."
Clark v. Clark, 423 S.C. 596, 605, 815 S.E.2d 772,
777 (Ct. App. 2018) (quoting Davenport v. Davenport,
265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975)). However,
"[i]n determining the best interests of the child, the
court must consider the child's reasonable preference for
custody." S.C. Code Ann. § 63-15-30 (Supp. 2018).
"The court shall place weight upon the preference based
upon the child's age, experience, maturity, judgment, and
ability to express a preference." Id.
Additionally, the court may consider numerous factors,
including "the temperament and developmental needs of