VanName v. VanName, 1743
| Citation | 419 S.E.2d 373,308 S.C. 516 |
| Decision Date | 06 November 1991 |
| Docket Number | No. 1743,1743 |
| Court | Court of Appeals of South Carolina |
| Parties | Richard Bradley VanNAME, Appellant, v. Margaret J. VanNAME, Respondent. . Heard |
Albert D. McAlister, of McAlister & McAlister, Laurens, and Bradford N. Martin, Leatherwood, Walker, Todd & Mann, Greenville, for appellant.
Robert M. Ariail, of Mitchell & Ariail, Greenville, for respondent.
The parties to this proceeding were divorced by the family court in May of 1989. Custody of their minor children was granted to the mother. It was contemplated, as indicated in the decree itself, that she would be moving from Greenville which had been the home of the couple. This action was commenced two months later by Plaintiff-Appellant, Richard Bradley VanName (the father) against the Defendant-Respondent, Margaret J. VanName (the mother) seeking to restrain the mother from moving the parties' three minor children from Greenville County to the State of Virginia near Washington, D.C., or alternatively that custody be taken from the mother and given to the father. Relevant portions of the mother's answer amounts to a general denial. The trial judge left custody of the children with the mother. The father appeals. We affirm.
The children involved are: Bradley, age 9; Matthew, age 6; and Megan, age 5. The family lived together in Greenville prior to the divorce in 1989. The mother was granted a divorce on the ground of adultery which is admitted by the father.
Prior to the mother's divorce, the father's paramour harassed the mother by way of telephone. The mother testified: "His mistress had been harassing me over the telephone to where I had to get the phone people to tap my telephone and I had to get the police involved...." A warrant was taken for her, but the results of that proceeding do not appear in the record. The father continues his relationship with this woman.
From the Decree of Divorce the father served "Notice of Intent to Appeal" but abandoned the appeal when the mother agreed not to move the children to Virginia. The trial judge found that her agreement was coerced by the father who had, at least debatably, wrongfully refused to consent to the sale of the homeplace as ordered by the trial judge.
The judge did not find either parent unfit. In essence the judge found that both parties came to court with unclean hands.
There are two basic issues for determination on this appeal: (1) Has a change of circumstances been shown such as to warrant a change of custody? and (2) Should the mother be ordered to return to Greenville with the children so as to make the visitation by the father more convenient to him?
Our cases are legion to the effect that the best interests of minor children are paramount. In order to determine the best interests of these three children, we envision, as best we can from the record before us, the circumstances under which the children would be living if custody is continued with the mother or changed to the father.
When the mother was married and living in Greenville, she had a part-time job working at a bank. She is patently without fault in bringing about the divorce. She has no family connections in the Greenville area but has a sister in Virginia, where she lives, who assists her with the children. She is now employed full time by a bank, earning approximately $18,000 per year in a managerial capacity. She testified that she felt that the job market in northern Virginia was advantageous to her. She lives in an apartment and pays $750 per month rent.
The father is a graduate of Clemson University in architecture. He is employed as such by the Greenville County School System. His income is not indicated in the record before us. He now occupys an apartment. He admits that his paramour stays overnight in his residence but "... never stayed overnight at my apartment when my children were there." He has relatives in the Greenville area. The record is silent as to how he might care for the three children if custody were granted him, consistent with his full time employment.
As between the two environments described hereinabove, this Court has no hesitancy in finding that the best interests of the children demand that they remain in the custody of the mother.
We do not think the trial judge abused his discretion in finding that the mother should not be required to move back to Greenville. While it is true that the Court may, as in the case of McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982), require a parent to live in a particular area, that authority should be exercised sparingly. There was a time when judges in criminal cases would require a defendant under a suspended sentence to live outside the county or state, but such is no longer permitted. Forcing a person to live in a particular area encroaches upon the liberty of an individual to live in the place of his or her choice.
Argument by counsel of the father is more centrally devoted to his client's inconvenience in traveling to Virginia than to the best interests of the children. The father is in a better position to suffer the expense and inconvenience of travel incident to the visitation of the children than is the mother.
Where the granting of custody of a child is at issue, the law allows the trial judge substantial discretion. In determining a matter of change of custody, a similar discretion is permitted. Commenting upon the factual situation, the trial judge, in his Order, stated as follows:
... The move by the Defendant [mother] to northern Virginia is not unreasonable and was anticipated at the time of the final divorce decree. It was specifically mentioned by the Court in the...
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