Altman v. Griffith

• Decision Date: 05 February 2007
• Docket Number: No. 4205.,4205.
• Citation: 642 S.E.2d 619
• Court: South Carolina Court of Appeals
• Parties: Ernest Bartlett ALTMAN, Respondent, v. Vicky GRIFFITH, Appellant.

642 S.E.2d 619

Ernest Bartlett ALTMAN, Respondent, v. Vicky GRIFFITH, Appellant.

No. 4205.

Court of Appeals of South Carolina.

Heard December 5, 2006.

Decided February 5, 2007.

Rehearing Denied March 22, 2007.

Donald Bruce Clark, Robert Rosen, both of Charleston and J. Mark Taylor, of West Columbia, for Appellant.

D. Mark Stokes, of North Charleston and John Graham Altman, III, of Hanahan, for Respondent.

KITTREDGE, J.:

This is an appeal from a family court order awarding custody of the parties' minor child to Ernest Bartlett Altman (Father). Vicky Griffith (Mother) appeals.¹ We affirm.

I.

We are aware of our right to conduct a de novo review in an appeal from the family court and find facts in accordance with our own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct.App.2005) (citing Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct.App. 2004)). With respect to custody determinations, however, this court and our supreme court have consistently shown deference to family court judges in electing between fit parents. In the case before us, although both parents were burdened with "shortcomings," there is no challenge to the finding of fitness. For obvious and compelling reasons, as an appellate court, we are reticent to substitute our judgment on the custody determination between fit parents for that of the family court judge.

Our deference to the family court's findings is especially warranted here, for the ultimate determination rests primarily on the trial judge's assessment of witness demeanor and credibility. In gauging between fit parents as to who would better serve the best interests and welfare of the child in a custodial setting, the family court judge is in a superior position to appellate judges who are left only to review the cold record. For this reason, custody determinations largely rest in the sound discretion of the family court judge. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) ("[T]he appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the [family] court."); Brown v. Brown, 362 S.C. 85, 89, 606 S.E.2d 785, 787 (Ct.App.2004) (same); Shirley v. Shirley, 342 S.C. 324, 330-31, 536 S.E.2d 427, 431 (Ct. App.2000) ("Custody decisions are matters left largely to the discretion of the [family] court."); Paparella v. Paparella, 340 S.C. 186, 189, 531 S.E.2d 297, 299 (Ct.App.2000) (noting appellate courts should be reluctant to supplant the trial court's evaluation of witness credibility regarding child custody). Indeed, our supreme court has held "[w]hen both parties are fit and proper to have child custody, the trial judge must make the election." Jones v. Ard, 265 S.C. 423, 426, 219 S.E.2d 358, 359-60 (1975).

This deferential scope of review is consistent with the general approach to accord respect to a family court judge's factual findings, as reflected in the following often cited principle: "Nor must we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony." Lanier v. Lanier, 364 S.C. 211, 215, 612 S.E.2d 456, 458 (Ct.App.2005) (citing Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981)). "[W]here there is disputed evidence, the appellate court may adhere to the findings of the family court." Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).

II.

Mother and Father met in the spring of 1998 and began living together soon thereafter. The couple never married. Mother and Father had a rocky relationship almost from the beginning. Mother gave birth to the parties' son on May 27, 1999. The birth of their child did little to solidify the tumultuous relationship between the couple. Regrettably, in the parties' acrimonious relationship, each parent used the child as leverage against the other. The couple experienced many separations and attempts at reconciliation.

Father regularly used marijuana. He even publicly advocated marijuana use, and he ran a business that catered to the marijuana-smoking crowd under the guise of a "music store." The business distributed drug related paraphernalia, such as pipes commonly used to smoke marijuana. Mother regularly used marijuana and alcohol, even when pregnant with the parties' child. Mother also took prescribed antidepressants and tranquilizers, including Paxil, Zoloft, Tranxene, and Valium.

In October 2002, Mother and Father permanently separated. At that time Mother took the child and moved in with her parents. In an effort to see the child, Father called and wrote Mother "on a regular basis," but Mother avoided him. Rather than permit Father to see his son, Mother "directed [Father] to speak to my attorney." Father was denied any contact with his son until he filed this action in January 2003.

In February 2003, the family court issued a temporary order granting temporary custody of the child to the maternal and paternal grandparents "with visitation extended to the mother and father at times agreeable to the respective grandparents." The temporary order further noted "great concerns" with both parents.

III.

Judge Marion D. Myers presided over the final hearing. Following a lengthy trial (August 30, 2004 through September 8, 2004), the learned and experienced family court judge found both parents fit and awarded custody to Father. There is no challenge to the finding of fitness.

Contested custody cases often bring out the worst in parents. This case was no exception, as each parent relished the opportunity to disparage the other. Each parent gave the other plenty of ammunition, which Judge Myers charitably described as their "shortcomings." As noted, the parents used the child as a pawn in their conflicts. They also used illegal drugs. The evidence additionally revealed Mother's unmistakable tendency to be self-absorbed and self-pitying. The picture of both parties improved during the pendency of the litigation. Judge Myers' finding of fitness reflects his view that the improvement is genuine, as opposed to judicially motivated posturing.

After carefully weighing the evidence, Judge Myers found that despite the parents' "shortcomings," neither parent "can now be deemed to be an unfit parent and neither party's love for this child is in doubt." (emphasis in original). Judge Myers considered the "totality of the circumstances" and concluded: (1) "the child in the long run would benefit more from being in father's custody than mother's"; (2) "the father would provide the child with the best and probably the only opportunity to have a good relationship with both of the child's parents and their families"; and (3) "from my own observation of the demeanor and attitude of the parents that the father appears to have a stronger focus on the daily welfare and care of the child than does the mother." We find ample support in the record for these findings.

IV.

Mother contends the family court erred in failing to impose on Father the burden of demonstrating a "change of circumstances" and in admitting Dr. Elizabeth Baker Gibbs' opinion testimony. Mother additionally challenges the findings favoring the custody award to Father, essentially complaining about the family court's failure to give weight to Mother's take on the evidence.

A.

Mother contends this is a "change of circumstances" case in light of section 20-7-953(B) of the South Carolina Code (1985). Consequently, Mother claims the family court erred by evaluating the evidence based on the "totality of the circumstances." We disagree.

We first note that this issue is not preserved. Even assuming Mother asserted this argument to the family court, Judge Myers did not address the issue in the final order, and no motion for reconsideration was filed.² "Where a party raises an issue, but the issue is never ruled on by the trial court, and the party fails to file a motion to alter or amend, the issue is not preserved." Jean Hoefer Toal, Shahin Vafai & Robert A. Muckenfuss, Appellate Practice in South Carolina 58 (2d ed.2002) (citing S.C. Farm Bureau Mut. Ins. Co. v. S.E.C.U.R.E. Underwriters Risk Retention Group, 347 S.C. 333, 554 S.E.2d 870 (Ct.App.2001)). We address the issue, however, because "procedural rules are subservient to the court's duty to zealously guard the rights of minors." Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000).

Mother's specific contention is that a statute concerning paternity, section 20-7-953(B), imposes on Father the burden of showing a substantial change of circumstances to gain custody. Section 20-7-953(B) provides:

Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.

The issue as framed by Mother presents the following question: when parents are not married, does the law mandate a change of circumstances burden on every father who seeks custody? The answer is "no." We find nothing in the language of the statute (which is found in the subarticle titled "Determination of Paternity") suggesting the result advocated by Mother. See Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 260, 626 S.E.2d 6, 10 (2005) ("The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature."). In giving a father the right to petition the family court for custody, the statute makes no mention of a change of circumstances burden. This plain reading of the statute is in accord with the general legal principle that the imposition of a change of circumstances burden applies when a parent seeks to alter a prior...