Jones v. Jones, 0776

• Decision Date: 16 June 1986
• Docket Number: No. 0776,0776
• Citation: 348 S.E.2d 178,290 S.C. 49
• Court: South Carolina Court of Appeals
• Parties: Cynthia Louise Walker JONES, Appellant, v. Stephen Gifford JONES, Respondent. . Heard

Page 178

348 S.E.2d 178

290 S.C. 49

Cynthia Louise Walker JONES, Appellant, v. Stephen Gifford JONES, Respondent.

No. 0776.

Court of Appeals of South Carolina.

Heard June 16, 1986.

Decided Aug. 18, 1986.

Randall M. Chastain, Harvey L. Golden and Ken H. Lester of Law Offices of Harvey L. Golden, P.A., Columbia, for appellant.

David H. Wilkins and W. Benjamin McClain, Jr., Greenville, for respondent.

SHAW, Judge.

Appellant-wife, Cynthia Louise Walker Jones, initiated this action against respondent-husband, Stephen Gifford Jones. She sought, among other things, a legal separation, custody of the parties' minor child, support for herself and the child, a property division, and attorney's fees. The husband counterclaimed for a divorce, custody, child support, and a property division. The family court granted the husband a divorce on the grounds of adultery, custody, and child support. The court also denied the wife's request for attorney's fees. The wife appeals the portions of the order concerning custody, child support, and the denial of her request for attorney's fees. ¹ We affirm.

The parties were married in August of 1981, and, except for a three month period when the wife vacated the marital home, lived together until April of 1984. At the time of the hearing, in October of 1984, the husband was forty-one years old and the wife was twenty-nine. Their daughter, Krista Noel Jones, was sixteen months old.

The wife argues the family court erred in awarding custody of the parties' child to the father. She claims the evidence in the record supports her argument she is the most fit parent. The wife relies heavily on the tender years doctrine. She argues it was error for the judge not to explicitly consider the doctrine in his order.

The welfare and best interest of the child is the "primary, paramount and controlling consideration of the court in all child custody controversies." Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612, 614 (1978).

The wife's reliance on the tender years doctrine is misplaced. This court has held the doctrine is merely one factor to be considered. Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct.App.1984). In this case the doctrine is irrelevant because we find the mother is not a "... competent, fit, and proper person to have custody." Marshall, 320 S.E.2d at 48.

The record reveals the following facts which reflect on the wife's lifestyle and fitness as a custodial parent. The wife admitted to three adulterous affairs during her marriage, one of which preceded her separation from her husband. She admitted to having nude photographs of herself made to fulfill a personal fantasy. The wife used marijuana frequently during the marriage and also used quaaludes and cocaine on numerous occasions. She has been using drugs since she was nineteen. She operated a shop in Greenville for a time in which she sold dresses and drug paraphernalia. The wife also used drugs while her child was in her custody.

In addition, the record reveals the wife has engaged in a settled pattern of inattentiveness to the child. She routinely left the child in the care of others while she went out with friends or a paramour. She even left her child in the care of a twelve year old boy when her child was just four months old. The boy testified he never changed the child's diaper or fed her. The boy, whose father had an affair with the wife, also testified the wife came to his house three or four times a week for six months and she smoked marijuana almost every time she came, including when her child was with her. Finally, he testified the wife brought her child about once a week and he kept the child until his father came home. The wife was at belly dancing classes during this time.

Faced with this and other similar evidence, the trial judge determined the wife's "adulterous conduct and extensive use of drugs during the marriage and her habit of going out frequently at night leaving ... [the husband] and the minor child at home is not indicative of actions of a parent that would be a steady and stable influence on the minor child." We agree.

The husband is employed and, except for a weight problem which he acknowledges, is in good health. He admitted a past addiction to cocaine. However, he voluntarily entered a drug rehabilitation program and the trial judge found he had not used drugs in over two years at the time of the hearing. The husband will have to travel approximately five days a month on business. However, the travel will not always be overnight and the five days will not be consecutive. The husband's mother will care for the child when the husband is at work or out of town.

Finally, the record shows the husband has been primarily responsible for the child's care since her birth. He often stayed home and cared for the child...