Alukonis v. Smith, Appellate Case No. 2017-001441

CourtCourt of Appeals of South Carolina
Writing for the CourtHUFF, J.
Citation846 S.E.2d 600,431 S.C. 41
Docket NumberOpinion No. 5745,Appellate Case No. 2017-001441
Decision Date22 July 2020
Parties Steven K. ALUKONIS, Appellant/Respondent, v. Wayne K. SMITH, Jr., Respondent/Appellant.

431 S.C. 41
846 S.E.2d 600

Steven K. ALUKONIS, Appellant/Respondent,
v.
Wayne K. SMITH, Jr., Respondent/Appellant.

Appellate Case No. 2017-001441
Opinion No. 5745

Court of Appeals of South Carolina.

Heard February 11, 2020
Filed July 22, 2020
Rehearing Denied August 17, 2020


Richard H. Rhodes and William Hardwick Rhodes, both of Burts Turner & Rhodes, of Spartanburg, for Appellant/Respondent.

Meliah Bowers Jefferson and Wallace K. Lightsey, of Wyche Law Firm, both of Greenville, for Respondent/Appellant.

Angela Johnson Moss, of the Seventh Circuit Public Defender's Office, of Spartanburg, Guardian ad Litem, pro se.

HUFF, J.:

431 S.C. 47

This matter involves cross-appeals over the custody of a minor child (hereinafter, Child) between Steven K. Alukonis, the maternal grandfather (hereinafter, Grandfather), and Wayne K. Smith, Jr., the natural father of Child (hereinafter, Father), following the death of Katelyn Alukonis, Child's natural mother (hereinafter, Kate). Grandfather challenges the family court's award of primary custody to Father and the award of $10,000 in attorney's fees to Father. Father appeals the award of joint custody to Grandfather and the family court's failure to award him all fees and costs expended in this litigation. We reverse the award of primary custody to Father, reverse and remand the award of attorney's fees to Father, and remand for the family court to set a visitation plan for Father.

FACTUAL/PROCEDURAL BACKGROUND

This is a very sad case stemming from a custody action brought about after Child's mother, Kate, committed suicide. Child was born on July 1, 2010, to Kate and Father. The two were never a couple, and Kate travelled back and forth with Child between South Carolina, where Father lived, and her family home in Florida—living in both states for various periods of time. Kate had mental health issues and worked only sporadically. While in both South Carolina and Florida,

846 S.E.2d 604

Grandfather provided financial support for Kate and Child, and also provided emotional and hands on support at all times while the two were in Florida. Grandfather, Kate's sisters, and Kate's step-mother were all very involved in Child's life. Prior to Kate's death, it appears Father engaged in limited interaction with Child, and then only when Child was present in South Carolina. Child was cared for, at times, by Father or his family members while in South Carolina, most often staying at Child's great-grandmother's home. When Kate committed suicide on August 18, 2015, in South Carolina, Father assumed custody of Child. After several encounters with Grandfather and/or his family, Father's family feared they would try to take Child back to Florida and refused to allow Kate's family

431 S.C. 48

any contact with Child. Grandfather brought this action and, a few months after Kate's death, he was awarded temporary custody of Child. Following this order, Child lived in Grandfather's home for another nineteen months.

A final hearing on the matter was held March 20-30, 2017. Following the submission of extensive testimony and evidence, the family court noted the amount of time Child spent living in Florida and in South Carolina.1 It stated that when Kate and Child resided in Florida, Grandfather provided them with support, care, and a place to live. It found Grandfather would often parent Child when they lived in Florida because Kate was unable to do so. The family court found Grandfather financially supported Kate, and thus indirectly supported Child, while they were in South Carolina as well as in Florida. In addition, Grandfather provided direct financial support for Child while they resided in Florida when Kate was unable to care for Child. Therefore, the court ruled there was "clear and convincing evidence that [Grandfather] is a de facto custodian of ... [C]hild, as there were periods that [Grandfather] was the primary caregiver for and financial supporter of ... [C]hild, and that ... [C]hild resided with [Grandfather] (and ... [C]hild's mother) for a period of one year or more."

The family court next examined whether Father was unfit to parent Child, citing Kay v. Rowland , 285 S.C. 516, 331 S.E.2d 781 (1985), for the proposition that our courts recognize superior rights of a natural parent in a custody dispute with a third party and "[o]nce the natural parent is deemed fit, the issue of custody is decided." The court found Father had a civil, working relationship with the mother of his second child. Although the court noted the status of Father's relationship with the mother of his third child was questionable and his unsettled living arrangement was a concern, it determined this did not render Father unfit as a parent. The court found Father and his family had been involved with Child from shortly after Child's birth to the present. The court recognized

431 S.C. 49

Father did not visit Child or send any direct support or gifts to Child while he was in Florida. However, it found even when Kate and Child were in Florida, Father provided health insurance for Child and listed him as a beneficiary on his life insurance policy. It noted Father did not do much in the way of contact or support while Child was in Florida with Kate but found, once Child returned to South Carolina, Father was involved in his life and provided support and contact. The family court observed the text messages between Father and Kate demonstrated Father and his family were involved with Child and that Father provided support and care for Child. Although the court acknowledged Father's delay in responding to Kate was due to the dynamics of their relationship in that Father was not interested in having a relationship with Kate as she desired, it held Kate and Father "maintained a civil, working relationship for the sake of [Child]." The court discounted the Guardian Ad Litem's (GAL) concerns that Father was not present during Child's birth and did not visit Child while he was in the hospital,2 explaining Father

846 S.E.2d 605

was unsure of Child's paternity. It similarly found the GAL's concern regarding Child's absence from Kate's memorial service did not impact Father's parental fitness, as this was due to Grandfather's filing of a custody action in Florida and a text message from Kate's sister refusing to assure Father that she and Grandfather did not want to "take" Child, such that Father was fearful Child would not return from Florida. The family court, therefore, concluded Father was a fit and proper parent to Child and found primary custody of Child should be awarded to Father.

The court, however, also found compelling circumstances existed to warrant making both parties joint custodians of Child, with Father the primary custodian and Grandfather the secondary custodian. The family court granted Father final decision-making authority with respect to Child, and noted Grandfather's designation as secondary custodian did not infringe on that decision-making authority. It set an extensive visitation schedule and ordered Father to take Child to grief counseling. The court ordered Grandfather to pay $10,000 of

431 S.C. 50

Father's requested $97,210.50 in attorney's fees and costs. It also ordered the parties to pay equal shares of the GAL's fees. Following a hearing on Grandfather's motion for reconsideration and to alter or amend, the family court refused to alter its ruling that Father was a fit parent and denied Grandfather's request for primary custody of Child, explaining, "The Court finds that its determination of compelling circumstances entitles [Grandfather] to expanded visitation with [Child], but does not overcome the superior custody rights of a fit natural parent." These cross-appeals followed.

ISSUES

Grandfather challenges the family court's award of primary custody to Father asserting: the family court erred in finding that Father was a fit parent for custody; the priority of a natural parent to custody of a child over a third party is now a rebuttable presumption; and Grandfather qualified as a psychological parent or de facto custodian such that Child's best interests were for Grandfather to be awarded custody. Grandfather also appeals the award of $10,000 in attorney's fees to Father asserting that he should have prevailed on the custody award and, even assuming the family court properly awarded custody to Father, the subject action was required by Father's refusal to allow Grandfather any contact with Child. Father appeals the award of joint custody to Grandfather asserting: upon finding him to be a fit parent, the family court should have ended its inquiry; and the family court failed to provide an analysis of compelling circumstances that existed to warrant joint custody. Father also appeals the family court's failure to award him all fees and costs expended in this litigation since he prevailed on the issue of custody.

STANDARD OF REVIEW

"In appeals from the family court, this [c]ourt reviews factual and legal issues de novo." Simmons v. Simmons , 392 S.C....

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2 practice notes
  • Masters v. KOL, Inc., Appellate Case No. 2017-002259
    • United States
    • Court of Appeals of South Carolina
    • 22 Julio 2020
    ...the agreement's scope], the parties may delegate this determination to an arbitrator if the parties clearly and unmistakably agree to do 431 S.C. 41 so in their arbitration agreement."); Rent-A-Ctr. , 561 U.S. at 72, 130 S.Ct. 2772 (concluding that unless the delegation provision is challen......
  • Freeman v. Woodward, 2022-UP-128
    • United States
    • Court of Appeals of South Carolina
    • 23 Marzo 2022
    ...that led to her temporary relinquishment of custody and returning custody to Mother is in Child's best interest. See Alukonis v. Smith, 431 S.C. 41, 64, 846 S.E.2d 600, 612 (Ct. App. 2020) ("[I]n most circumstances, a . . . third party would find it an insurmountable obstacle to obtain cust......
2 cases
  • Masters v. KOL, Inc., Appellate Case No. 2017-002259
    • United States
    • Court of Appeals of South Carolina
    • 22 Julio 2020
    ...the agreement's scope], the parties may delegate this determination to an arbitrator if the parties clearly and unmistakably agree to do 431 S.C. 41 so in their arbitration agreement."); Rent-A-Ctr. , 561 U.S. at 72, 130 S.Ct. 2772 (concluding that unless the delegation provision is challen......
  • Freeman v. Woodward, 2022-UP-128
    • United States
    • Court of Appeals of South Carolina
    • 23 Marzo 2022
    ...that led to her temporary relinquishment of custody and returning custody to Mother is in Child's best interest. See Alukonis v. Smith, 431 S.C. 41, 64, 846 S.E.2d 600, 612 (Ct. App. 2020) ("[I]n most circumstances, a . . . third party would find it an insurmountable obstacle to obtain cust......

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