Brown v. Brown
| Decision Date | 06 December 2004 |
| Docket Number | No. 3901.,3901. |
| Citation | 362 S.C. 85,606 S.E.2d 785 |
| Court | South Carolina Court of Appeals |
| Parties | Diane Q. BROWN, Appellant, v. George C. BROWN, Respondent. |
Thomas M. Neal, III, of Columbia, for Appellant.
James C. Cothran, Jr., of Spartanburg, for Respondent.
In this family court action, Diane Q. Brown (Mother) appeals the family court order awarding custody of the couples' three children to George C. Brown (Father). We affirm.
Father and Mother were married on December 16, 1991 and have three children, Melissa Rene, born December 17, 1991, and twins, Nicholas George and Natalie Rae, born June 10, 1995. The parties separated on October 30, 2000, and Mother initiated divorce proceedings on the ground of adultery. Father did not contest the divorce. The parties reached an agreement settling all property and financial matters. The only contested issues before the family court were custody of the minor children, attorney's fees, and detective fees. On appeal, the only contested issue is custody of the minor children. The family court awarded custody of the three minor children to Father, who, by the time of trial, had moved in with his parents.
"In appeals from the family court, the court of appeals has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence." Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598, 601 (2004) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992)); Upchurch v. Upchurch, 359 S.C. 254, 257-58, 597 S.E.2d 819, 821 (Ct.App.2004). Although this Court may find facts in accordance with our own view of the preponderance of the evidence, we are not required to 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. See Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996)
; Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999). In particular, an appellate court "should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court." Woodall at 10, 471 S.E.2d at 157. Our broad scope of review does not relieve appellant of her burden to convince this Court the family court committed error. Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).
Mother first argues the family court erred in awarding custody of the minor children to Father. We disagree.
The paramount and controlling factor in every custody dispute is the best interests of the children. Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct.App.2000); Paparella v. Paparella, 340 S.C. 186, 189, 531 S.E.2d 297, 299 (Ct.App.2000). Custody decisions are left largely to the discretion of the trial court. Shirley at 330, 536 S.E.2d at 430.
In Shirley, we articulated the South Carolina rule governing custody cases:
In all child custody controversies, the controlling considerations are the child's welfare and best interests. In reaching a determination as to custody, the family court should consider how the custody decision will impact all areas of the child's life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects. Additionally, the court must assess each party's character, fitness, and attitude as they impact the child.
342 S.C. at 330, 536 S.E.2d at 430 (citations omitted); see also Pirayesh v. Pirayesh, 359 S.C. 284, 296, 596 S.E.2d 505, 512 (Ct.App.2004)
(); Bragg v. Bragg, 347 S.C. 16, 22, 553 S.E.2d 251, 254 (Ct.App.2001) ().
Roy T. Stuckey, Marital Litigation in South Carolina 433 (3rd ed. 2001). "Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker." Patel v. Patel, 359 S.C. 515, 527, 599 S.E.2d 114, 120 (2004) (citation omitted).
In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child. When analyzing the right to custody as between a father and mother, equanimity is mandated. We place our approbation upon the rule that in South Carolina, there is no preference given to the father or mother in regard to the custody of the child. The parents stand in perfect equipoise as the custody analysis begins.
Kisling v. Allison, 343 S.C. 674, 678, 541 S.E.2d 273, 275 (Ct.App.2001). Additionally, child custody is not granted to a party as reward or withheld as punishment. Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975); Clear v. Clear, 331 S.C. 186, 191, 500 S.E.2d 790, 792 (Ct.App.1998).
Morality of a parent is a proper factor for consideration in determining custody of children. Davenport at 527, 220 S.E.2d at 230. However, the effect of a parent's morality is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. Id.
Recognizing this was a "close custody case," the family court noted that "both parties love the children and the children clearly love both parents, and have a close relationship with both." The court order states that "both parties were the primary caretakers of the children[.]" The court did not find Mother unfit, but concluded custody with Father was in the children's best interest. Specifically, the family court found the children have had excessive tardies at school and held Mother to be the significant factor causing the children's tardies. This finding is supported by the testimony of Marlene Cordoso, a school employee, who testified that most of the children's tardiness occurred when Mother brought the children to school. She further averred Mother was late on occasion when it was her responsibility to pick up the children from the after-school care program. Moreover, Ms. Cordoso stated Mother failed to pick up a sick child from school after agreeing to do so.
Other personnel at the school testified Mother sometimes would bring the children to school without their lunches. This did not occur when Father brought their lunches. The school employees further averred the children were better groomed and properly clothed in winter months when in the care of Father as opposed to Mother.
Nancy Hogsed, a babysitter for the children, corroborated the testimony of Ms. Cordoso. According to Ms. Hogsed, Mother frequently was late and would fail to pick up the children at the requisite time. Additionally, Mother was often late to or absent from the children's birthday parties, award functions, and sporting events. Mother lost her job at the hospital for excessive tardiness and absenteeism.
Furthermore, several witnesses offered testimony of Mother's poor temperament. The witnesses stated Mother loses her temper with her daughter Melissa and cursed at the child. Mitzi Kirsch, a realtor who listed the marital residence, testified to a "screaming rampage" and verbal abuse inflicted on her by Mother while Ms. Kirsch was attempting to sell the marital residence. The relationship became so difficult that Ms. Kirsch withdrew the listing of the home.
Although Father admittedly engaged in an adulterous relationship, he professed the amoret had ended and he was currently attending church. The amalgamation of witness testimony reveals Father: (1) was active in raising the children; (2) often cooked meals; (3) helped with school work; (4) took the children to church; and (5) attended the children's recreational events. Consequently, ample evidence exists to support the trial judge's conclusion, "Husband has the preferable temperament for dealing with the children." To support her position, Mother proffers the improvement the children made in school while they were in her care. She contends that since the parties' separation, the children have been late less and have improved their grades, and, therefore, the family court erred by awarding custody to Father. However, we find the family court properly weighed the factors and exercised discretion in awarding custody with Father. The family court balanced the adulterous indiscretions of Father against the shortcomings of Mother in deciding to award custody to Father. There is substantial evidence in the record to support the award of custody to Father, including: (1) Mother's inability consistently to have the children to school on time; (2) her inattentiveness to the children's lives; and (3) her poor temperament around the children.
The family court considered how the custody decision would impact the children's lives and assessed each parties' attributes. It determined the well-being of the children was best served by an award of custody to Father. We find the family court properly analyzed this custody situation pursuant to the statutes and case law of this state and did not abuse its discretion in awarding custody to Father.
To continue reading
Request your trial
-
Spreeuw v. Barker
...the oldest child's stated preference to live with Mother in performing the best interests analysis. See Brown v. Brown, 362 S.C. 85, 93, 606 S.E.2d 785, 789 (Ct.App.2004) ("In determining the best interests of the child, the court must consider the child's reasonable preference for custody.......
-
Altman v. Griffith
...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 matt......
-
Choudhry v. Sinha
... ... custody dispute is the best interest[] of the [child]." ... (quoting Brown v. Brown, 362 S.C. 85, 90, 606 S.E.2d ... 785, 788 (Ct. App. 2004))); S.C. Code Ann. § ... 63-15-240(B) (Supp. 2019) (stating the family ... ...
-
Choudhry v. Sinha
... ... custody dispute is the best interest[] of the [child]." ... (quoting Brown v. Brown, 362 S.C. 85, 90, 606 S.E.2d ... 785, 788 (Ct. App. 2004))); S.C. Code Ann. § ... 63-15-240(B) (Supp. 2019) (stating the family ... ...
-
Education Issues in Family Court Agreements
...while identifying diversity of terminology including "joint custody," "shared custody," and "shared parenting."). [3] Brown v Brown, 362 S.C. 85, 90, 606 S.E.2d 785, 788 (Ct. App. 2004). [additional citations omitted] [4] SC Code Ann. § 63-15-230(B) (2014); see also SC Code Ann. § 63-3-530(......