Burgess v. Arnold

• Decision Date: 24 January 2018
• Docket Number: Opinion No. 5531,Appellate Case No. 2016-000398
• Citation: 810 S.E.2d 255,422 S.C. 162
• Parties: Maxie BURGESS, Respondent/Appellant, v. Brooke L. ARNOLD, Appellant/Respondent.
• Court: South Carolina Court of Appeals

422 S.C. 162

810 S.E.2d 255

Maxie BURGESS, Respondent/Appellant,

v.Brooke L. ARNOLD, Appellant/Respondent.

Appellate Case No. 2016-000398

Opinion No. 5531

Court of Appeals of South Carolina.

Submitted December 4, 2017

Filed January 24, 2018

Rehearing Denied February 14, 2018

Michael J. Anzelmo, of Columbia, and Carolyn R. Hills and Jennifer D. Hills, both of Hills & Hills, P.C., of Myrtle Beach, for Appellant/Respondent.

Nicole Nicolette Mace, of West Palm Beach, Florida, for Respondent/Appellant.

GEATHERS, J.:

In this child custody action, Brooke L. Arnold (Mother) seeks review of the family court's order awarding Maxie Burgess (Father) primary custody of their eight-year-old son (Son) should Mother relocate to Florida. Mother argues the family court erred by (1) creating a custody arrangement that penalizes Mother for relocating to Florida; (2) applying an initial custody analysis rather than a change-in-circumstances analysis; and (3) imposing a joint custody arrangement based on a finding that the parties had been operating under a joint custody arrangement prior to Father's filing of this action. In Father's cross-appeal, he challenges the family court's ruling that automatically reinstates Mother's primary custodian status if she returns to South Carolina after relocating to Florida. Father argues a substantial change in circumstances must be shown before the family court may change custody and the family court did not have jurisdiction to make such a ruling. We reverse and remand.¹

FACTS/PROCEDURAL HISTORY

Mother and Father were never married to each other, but they were in a committed relationship until Son was eighteen months old. Subsequently, Mother continued her sexual relationship with Father until 2012 "in hopes they would become a family." Except for a few months in 2008, Father has not paid child support, and prior to this action, Mother never sought a court order imposing child support payments on Father.

Mother met LaBaron Paschall, an Army Ranger instructor, in May 2012 during Bike Week. At that time, Paschall was stationed in Fort Bragg, North Carolina, and was vacationing in Myrtle Beach. Both Mother and Father were living in Surfside Beach. Mother's relationship with Paschall became romantic in July 2012. Within the following few months, Paschall moved to Florida, but he continued his relationship with Mother. By early 2014, Mother and Paschall decided to marry, and they began discussing Mother's relocation to Florida; however, their wedding was postponed until June 27, 2015.

By May 2014, Father was concerned about Mother taking Son to Florida with her, and he filed this action seeking custody of Son. Mother later filed an answer and counterclaim seeking custody of Son. In June 2014, Mother sought counseling for Son to address his anxiety over the possibility of moving to Florida as well as disciplinary issues between Mother and Son.

The family court conducted a final hearing from August 3 through August 5, 2015. At the time of the hearing, Paschall was stationed at Elgin Air Force Base near Fort Walton Beach, Florida, and he had plans to retire by February 1, 2016, and start a private security business. Also, at this time, Mother was pregnant with Paschall's child. On September 28, 2015, the family court filed its final order granting Mother and Father joint custody of Son, with Mother having primary custody "over all issues except education" and granting Father primary custody of Son in the event that Mother relocated to Florida.

Mother and Father filed cross-motions to alter or amend the final order, and the family court granted in part and denied in part each motion. Specifically, as to the issues relevant to this appeal, the family court granted Father's request to address Mother's possible return to Horry County after relocating to Florida and ruled that Mother's primary custody of Son would be reinstated should such a contingency occur. The family court denied Mother's request to reconsider its finding that the parties had a joint custody arrangement before Father filed this action. The family court also rejected Mother's arguments that it should have applied a change-in-circumstances analysis to its custody determination and it should have awarded sole custody to Mother. These cross-appeals followed.

ISSUES ON APPEAL

1. Was the family court's joint custody award in Son's best interests?

2. Was the family court's award of primary custody to Father in the event Mother relocates to Florida in Son's best interests?²

STANDARD OF REVIEW

"In appeals from the family court, [the appellate c]ourt reviews factual and legal issues de novo." Crossland v. Crossland , 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014). "Thus, [the appellate c]ourt has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence; however, this broad scope of review does not require the [c]ourt to disregard the findings of the family court, which is in a superior position to make credibility determinations." Id. In fact, "[t]he burden is upon the appellant to convince the appellate court that the preponderance of the evidence is against the family court's findings." Simcox-Adams v. Adams , 408 S.C. 252, 260, 758 S.E.2d 206, 210 (Ct. App. 2014).

LAW/ANALYSIS

I. Joint Custody

Mother argues the family court erred by awarding joint custody to both parents rather than awarding Mother sole custody. Mother also challenges the family court's finding that Mother and Father had been operating under a joint custody arrangement prior to this action. We conclude the family court correctly characterized the parties' custody arrangement prior to this action.³ However, we agree with Mother that the family court should have awarded her sole custody.

The family court's finding that the parties had been operating under a joint custody arrangement prior to this action was supported by not only the testimony of the parties but also the report of the Guardian ad Litem. However, we disagree with the family court's perception that continuing the prior arrangement is in Son's best interests. "In custody decisions, the best interest of the child is the paramount consideration."

Gandy v. Gandy , 297 S.C. 411, 414, 377 S.E.2d 312, 313 (1989) ; see S.C. Code Ann. § 63-15-230(A) (Supp. 2017) ("The court shall make the final custody determination in the best interest of the child based upon the evidence presented."). "Custody is based on a determination of the character, fitness, attitude[,] and inclinations on the part of each parent." Gandy , 297 S.C. at 414, 377 S.E.2d at 313–14.

Further, "[a]lthough the legislature gives family court judges the authority ‘to order joint or divided custody [when] the court finds it is in the best interests of the child,’ ... joint or divided custody should only be awarded [when] there are exceptional circumstances." Patel v. Patel , 359 S.C. 515, 528, 599 S.E.2d 114, 121 (2004) (quoting S.C. Code Ann. § 20-7-420(42) (Supp. 2003)⁴ ). "[G]enerally, joint custody is disfavored" and will be awarded only when exceptional circumstances dictate that such an arrangement is in a child's best interests. Scott v. Scott , 354 S.C. 118, 125, 579 S.E.2d 620, 624 (2003) ; see also Lewis v. Lewis , 400 S.C. 354, 365, 734 S.E.2d 322, 327 (Ct. App. 2012) (noting South Carolina courts have determined joint custody "is usually considered harmful to and not conducive to the best interest and welfare of a child"); but see S.C. Code Ann. § 63-15-230(C) (Supp. 2017) ("If custody is contested or if either parent seeks an award of joint custody, the court shall consider all custody options, including, but not limited to, joint custody , and, in its final order, the court shall state its determination as to custody and shall state its reasoning for that decision." (emphasis added)).

In Scott , our supreme court found exceptional circumstances warranted joint custody due to "the potential for the custodial parent to effectively alienate [the child] from the non-custodial parent" in a sole custody arrangement between those particular parents. 354 S.C. at 126, 579 S.E.2d at 624. The court also noted the family court "fashioned the joint custody to alternate in four-week intervals" that would not be as disruptive as shorter intervals. Id.

Here, Son expressed a desire to continue the joint custody arrangement that was in place before this action was filed. However, the record indicates this arrangement has been stressful for him due to Mother and Father's contrasting parenting styles. Further, Mother has indicated a willingness to allow Father generous visitation with Son even if she relocates to Florida. Father has also indicated a willingness to accommodate Mother's relationship with Son. Nevertheless, we are troubled by Father's recording of conversations in which Son recounted certain actions taken by Mother and Father questioned Son about the reasons for, and morality of, these actions.

The record also indicates Mother is more attuned to Son's emotional needs and more open-minded about her own need for self-improvement. Critically, Mother has recognized the need to have Son tested for Attention Deficit Disorder

and the need for counseling to address his emotional needs, whereas Father has been close-minded about these concerns despite his active involvement in Son's education. While Father argues he has cooperated with Mother in these two areas, we are concerned that if he has primary custody of Son upon Mother's relocation to Florida, he would be less likely to follow through with counseling or testing. Moreover, whereas Mother's parenting style was initially undisciplined, she has recognized the need for more structure and consistency in her discipline of Son and her enforcement of school assignments, and she has improved in these areas.

On the other hand, the family court recognized that Father "has a very controlling personality" and "[i]n his mind, his way is the right way and he knows what is best for his child." (f...