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Klein v. Barrett

Court of Appeals of South Carolina

May 8, 2019

April Gilbert Klein, Appellant,
Mark Anthony Barrett, Respondent. Appellate Case No. 2016-001491

          Heard February 5, 2019

          Appeal 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.

          McDONALD, J.

         In this 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.

         Facts and Procedural History

         Husband 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.

         Pursuant 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."

         On 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.

         After a 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."

         On June 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.

         After 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.[1] 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.[2]

         Wife 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 calculation.

         Standard of Review

         On 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.

         Law and Analysis

         I. Joint Custody

         Wife 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 disagree.

         "In 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 ...

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