517 S.E.2d 220 (S.C.App. 1999), 2977, Rice v. Rice

Docket Nº:2977.
Citation:517 S.E.2d 220, 335 S.C. 449
Party Name:335 S.C. 449 Paul Ray RICE, Respondent, v. Carleen K. RICE, Appellant.
Case Date:April 26, 1999
Court:Court of Appeals of South Carolina
 
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Page 220

517 S.E.2d 220 (S.C.App. 1999)

335 S.C. 449

Paul Ray RICE, Respondent,

v.

Carleen K. RICE, Appellant.

No. 2977.

Court of Appeals of South Carolina

April 26, 1999.

Heard Jan. 13, 1999.

Page 221

R. Wayne Byrd, of Turner, Padget, Graham & Laney, of Florence, for appellant.

Thomas D. Guest, of Law Offices of N. David DuRant, of Surfside Beach, for respondent.

HOWELL, Chief Judge:

Carleen Rice (the Mother) appeals from a family court order awarding her custody of the parties' children, but requiring her to return from Maine and live in South Carolina or within 250 miles of Conway, South Carolina, where Paul Rice (the Father) resides. We reverse in part and remand.

I.

The parties married in July 1990 and resided in Conway, South Carolina. They had three children, born in 1991, 1993, and 1995.

The parties separated for a short period of time in 1994, after the Father admitted to having an affair with Debra Jennings, a co-worker. They later reconciled. After the reconciliation, Jennings began harassing the Mother and Father, calling the house and hanging up, frequently driving by their house, and even appearing at the hospital after the Mother gave birth to the parties' third child in April 1995. The parties' home was broken into in June 1995, and pictures of the Mother were later discovered to be missing. The Mother saw Jennings near the home just before discovering the burglary and filed a police report naming Jennings as the perpetrator.

In July 1995 the parties separated again, and the Mother and the children moved to Greenville. Several months later the parties again reconciled, and the Father moved to Greenville. The parties' problems, including the harassment by Jennings, continued during the reconciliation. The parties separated a final time in February 1996.

Throughout the parties' many separations and reconciliations, the Father represented to the Mother that he was no longer involved with Jennings. However, the parties found notes, one addressed to "Paul" and signed by "Debbie," on the door of the Conway home in December 1995. In the notes, Jennings expressed, among other things, her disappointment that the Father had chosen the Mother over her. The notes indicated that the Father and Jennings had been involved for eighteen months.

Several months after the commencement of this action, but before any temporary relief had been requested by either party, the Mother and the children moved to Maine. Two of the Mother's brothers and her sister live within twenty miles of the Mother's home in Maine.

At trial, the guardian ad litem testified that the Mother was the primary caretaker of the children, and the guardian believed that the Mother should be granted custody. The guardian, however, noted that neither party had the financial resources to allow frequent travel back and forth between Maine and South Carolina. Thus, the guardian was concerned that the Father would not

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have adequate visitation with the children if the Mother remained in Maine. The guardian hoped that the Mother would voluntarily move back to Newberry, South Carolina, where her parents lived. If the Mother did not move, the guardian recommended that she bear the transportation costs associated with visitation.

The family court granted custody of the children to the Mother. However, the court determined that the Mother's move to Maine jeopardized the children's relationship with the Father, and that the best interest of the children would be served by requiring the Mother to return from Maine. The family court therefore ordered the Mother to return to South Carolina or to any other location within 250 miles of Conway as long as the Father resided there.

The Mother filed a motion to reconsider, requesting that the family court lift the requirement that she move from Maine. The court denied the motion, noting at the hearing that if the Mother did not move, "I guess we've got something that's going to amount to basically, switching the custody action again."1

II.

The sole issue on appeal is whether the family court properly required the Mother to return to South Carolina or to within 250 miles of Conway; there is no challenge to the court's decision to award custody to the Mother. When resolving this issue, of course, this Court has jurisdiction to find facts in accordance with our view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994).

Cases involving the relocation of a custodial parent "present some of the knottiest and most disturbing problems that our courts are called upon to resolve." Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 578, 665 N.E.2d 145, 148 (1996). In some states, there is a presumption, either statutorily- or judicially-mandated, in favor of the custodial parent's right to move. See, e.g., In re Custody of D.M.G. & T.J.G., 287 Mont. 120, 951 P.2d 1377, 1383 (1998) (Because an order prohibiting a custodial parent from relocating interferes with the custodial parent's constitutional right to travel, " 'we require the parent requesting the travel restriction to provide sufficient proof that a restriction is, in fact, in the best interests of the child.' "); In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473, 478 (1996) (California statute creates a "presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare.").

In South Carolina, however, there is a presumption in child custody cases against removing children from the state. See McAlister v. Patterson, 278 S.C. 481, 483, 299 S.E.2d 322, 323 (1982); VanName v. VanName, 308 S.C. 516, 419 S.E.2d 373 (Ct.App.1992), cert. denied (January 6, 1993). Nonetheless, because "[f]orcing 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," the court's authority to prohibit an out-of-state move "should be exercised sparingly." VanName, 308 S.C. at 519, 419 S.E.2d at 374. The presumption may be rebutted by a showing that the move will benefit the child. See McAlister, 278 S.C. at 483, 299 S.E.2d at 323 ("In situations where removal will benefit the child, removal has been allowed."). Thus, the question of whether relocation will be allowed requires a determination of whether the relocation is in the best interest of the children, the primary consideration in all child custody cases. See Pitt v. Olds, 333 S.C. 478, 481-82, 511 S.E.2d 60, 62 (1999) (reversing opinion of this Court that permitted mother to move with child to Arizona because, in part, "there are no findings by the Court of Appeals that a move to Arizona would be in [the child's] best interest. In sharp contrast is the order of the family court which specifically finds the move would not be in [the child's] best interest."); McAlister, 278 S.C. at 483-84, 299 S.E.2d at 323

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(affirming decision of trial court to deny request to move where trial court determined that child's best interest would be served by remaining in South Carolina); Eckstein v. Eckstein, 306 S.C. 167, 169, 410 S.E.2d 578, 580 (Ct.App.1991) (reversing requirement that custodial parent return to 250-mile radius of Spartanburg, noting that "such a requirement is, at best, premature, in that no facts were developed to show it was in the best interest of the children").

This case, however, is somewhat different from the typical relocation case. Most relocation cases involve a proposed move by the custodial parent sometime after the order vesting custody in the parent seeking to move. Here, when the Mother and the children moved to Maine, she had physical custody of the children pursuant to an agreement between the parties. After the Father learned of the move, he did not seek a temporary order prohibiting or otherwise restricting the move. Thus, at the time of the move, there was in place no order, temporary or final, vesting custody of the children in the Mother. The family court, therefore, was not truly called upon to decide whether the Mother, as custodial parent, should be allowed to move the children to Maine. Instead, the court was called upon to decide whether to grant custody in the first instance to the Mother, who lived in Maine, or to the Father, who lived in South Carolina.

The Mother does not argue on appeal that, because there was no order in place when she moved to Maine and because the Father never sought a court order prohibiting the move, the family court lacked the authority to order her to move. Therefore, we will assume, for the purposes of this opinion, that the family court had the authority to order the Wife to move from Maine. But see In re Marriage of Littlefield, 133 Wash.2d 39, 940 P.2d 1362, 1371 (1997) (en banc) (in case where mother and child moved out-of-state...

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