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Tomlinson v. Melton

Court of Appeals of South Carolina

November 13, 2019

Samuel James Tomlinson, Appellant,
v.
Jenna M. Melton, (f/k/a) Jenna M. Tomlinson, Respondent. Appellate Case No. 2016-002329

          Heard April 9, 2019

          Appeal From Richland County Gwendlyne Y. Jones, Family Court Judge

          Kenneth M. Mathews, of Columbia, and Katherine Carruth Goode, of Winnsboro, both for Appellant.

          Harry C. Wilson, Jr., of Lee, Erter, Wilson, Holler & Smith, LLC, of Sumter, for Respondent.

          SHORT, J.

         In this child custody action, Samuel Tomlinson (Father) appeals the family court's final order, arguing the family court erred in (1) ordering a week-to-week alternating custody arrangement, rather than continuing; (2) failing to make a finding as to Jenna Melton's (Mother's) child support arrearage and failing to offset that amount; and (3) abusing its discretion in its awards to Mother of child support and attorney's fees. We reverse and remand.

         FACTS

         Father and Mother married in Lexington County on March 8, 2008. In September 2008, Mother and Father had a son together (Child). On January 4, 2011, the family court issued a final order and decree of divorce. At the time of divorce, Child was three years old. The original divorce decree incorporated the custody agreement formed by the parties. In it, Mother and Father share joint custody of Child with Father as the primary custodial parent. The agreement stipulated Mother would have Child every other week from Wednesday at 4:00 p.m. until Monday at 3:00 p.m., various holidays, and equal time during summer months. The family court ordered Mother to pay child support of $100 monthly. The agreement stipulated a de novo review of child custody may be conducted before Child began kindergarten.

         Prior to the start of kindergarten, Father filed an action for modification of custody, seeking "the full care, control and custody of [Child]" and requesting Mother receive visitation every other weekend. Mother answered, seeking full custody of Child. The family court held a temporary hearing on September 9, 2014, and subsequently issued a pendente lite order on October 7, 2014, that provided there was insufficient information to change the terms of the 2011 order.

         Father lived in a large home in Kingstree and was employed as a physician at Williamsburg Regional Hospital. Mother remarried on July 5, 2016. Mother lived in Sumter with her husband, Cory Mickle, and their newborn daughter. Mother recently accepted a job at the Williamsburg School District, signed a rental contract for a two bedroom house in Kingstree, and purchased land in Kingstree in order to build a home near Child.

         After a three-day hearing, the family court altered the original custody agreement and ordered divided week-to-week custody, with Father retaining final decision making authority. The family court modified custody to week-to-week because Child was in school and both parents would soon live in the same city. The family court stated, "it is inappropriate to reduce the amount of parenting time for [Mother] when she is now in the same city," when "[s]he received more than alternating weekends . . . while living in another city." The family court ordered Father to pay child support in the amount of $659.00 a month and attorney's fees of $8, 500. The order did not reflect any offset for arrears Mother owed Father. Father filed a motion to reconsider-arguing the family court failed to consider Child's stability and failed to offset Mother's arrears-which the family court denied. Father appealed.

         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). Thus, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (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, 709 S.E.2d at 651-62. 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 court's findings. Id. at 392, 709 S.E.2d at 655.

         LA ...


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