Baer v. Baer, 0222

Decision Date30 May 1984
Docket NumberNo. 0222,0222
Citation282 S.C. 362,318 S.E.2d 582
CourtSouth Carolina Court of Appeals
PartiesStephen G. BAER, Respondent, v. Beth Ann BAER, Appellant. . Heard

Richard S. Rosen, of Rosen, Oberman & Rosen, Charleston, for appellant.

William Howard, of Belk, Howard & Cobb, Charleston, for respondent.

GOOLSBY, Judge:

This appeal by Beth Ann Baer results from an order of the family court changing custody of two minor daughters from Beth Baer to the father Stephen G. Baer. The issue presented is whether the evidence supports the family court's finding of a change in circumstances substantially affecting the welfare of the children sufficient to warrant the transfer of custody from the mother to the father. We reverse.

The parties married in April 1973. During the marriage, two children were born. Stephanie in December 1973 and Nicole in July 1975. In December 1980, the mother initiated an action seeking custody of the children, child support and alimony. The father counterclaimed requesting custody of the children and a divorce.

On May 16, 1981, while the parties were still married, they entered into an agreement that granted custody of the children to the mother and visitation rights to the father. The husband was granted a divorce upon the ground of his wife's adultery. The divorce decree, issued on May 29, 1981, incorporated the prior agreement of the parties including the provisions granting the mother custody and the father visitation rights. A provision requiring the mother to provide the father with two-weeks notice of any intention to remove the children from the State of South Carolina and of their new address and telephone number was also incorporated into the decree.

The father initiated the present action on June 9, 1981 for custody of the children alleging as a substantial change in circumstances that, among other things, the mother was living with her paramour and "that she intended to move from the State of South Carolina." Shortly thereafter, the mother married the latter and defended the suit on the basis that her prior living arrangement did not substantially affect the children's welfare.

The family court granted the father's petition to change custody upon finding that the mother engaged in an illicit relationship in the home where the children resided after the divorce decree, that the mother hastily married her paramour as a result of the father's institution of court proceedings to effect a change in the children's custody, and that the mother deceived the father by notifying him that she planned to take the children to Tennessee when in fact the mother was moving to Washington, D.C. where the United States Navy had assigned her paramour. This conduct, according to the court, demonstrated a lack of judgment and sincerity for the children's well-being that "substantially affect[ed] the[ir] interest[s] and welfare."

We note that the mother retained custody of the children pending her appeal pursuant to a supersedeas order issued by the Supreme Court staying the family court's order.

This is an action in equity tried by a judge alone and on appeal we may determine the facts in accordance with our own view of the evidence. Barden v. Barden, 278 S.C. 672, 301 S.E.2d 141 (1983). In determining the issue of custody, the paramount consideration is the welfare of the children. Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975); Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376 [282 S.C. 365] (1969). In order for the court to grant a change in custody, there must be a showing of changed circumstances occurring subsequent to the entry of the decree. Heckle v. Heckle, 266 S.C. 355, 223 S.E.2d 590 (1976); Pullen v. Pullen, supra. "A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the children would be served by the change." Stutz v. Funderburk, 272 S.C. 273, 252 S.E.2d 32, 34 (1979).

We hold that the evidence does not support a finding that a change in circumstances occurred that substantially affected the welfare of the children.

As to her illicit affair with a man who became her new husband, this case is not unlike Stutz v. Funderburk, supra. In that case, as here, the mother's adulterous relationship with her paramour "ended through marriage." 252 S.E.2d at 33. The Supreme Court held in Stutz that "if the illicit affair constituted a change of circumstances sufficient to justify depriving [the mother] of custody, then her marriage to her paramour and otherwise restoration of...

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6 cases
  • Shirley v. Shirley
    • United States
    • South Carolina Court of Appeals
    • July 31, 2000
    ...must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question. Baer v. Baer, 282 S.C. 362, 318 S.E.2d 582 (Ct.App.1984); see also Bolding v. Bolding, 278 S.C. 129, 130, 293 S.E.2d 699, 700 (1982) ("In order to justify a change of custody, t......
  • Hollar v. Hollar
    • United States
    • South Carolina Court of Appeals
    • July 24, 2000
    ...Henggeler v. Hanson, 333 S.C. 598, 602, 510 S.E.2d 722, 725 (Ct.App. 1998),cert. denied June 24, 1999; Baer v. Baer, 282 S.C. 362, 365, 318 S.E.2d 582, 583 (Ct.App.1984). "A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been sh......
  • Pountain v. Pountain, 2849.
    • United States
    • South Carolina Court of Appeals
    • June 8, 1998
    ...must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question. Baer v. Baer, 282 S.C. 362, 318 S.E.2d 582 (Ct.App.1984). "[A] change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been......
  • Moeller v. Moeller, 4861.
    • United States
    • South Carolina Court of Appeals
    • September 8, 2011
    ...(holding that a child custody award may not be used to penalize or reward a parent for his or her conduct); cf. Baer v. Baer, 282 S.C. 362, 366, 318 S.E.2d 582, 584 (Ct.App.1984) (“A single act of misconduct by the custodial parent toward the noncustodial parent that does not substantially ......
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