Cash v. Cash, 2421
| Decision Date | 27 November 1995 |
| Docket Number | No. 2421,2421 |
| Citation | 465 S.E.2d 371,320 S.C. 388 |
| Parties | Lisa Denise Hines CASH, Appellant, v. Billy Aaron CASH, Respondent. |
| Court | South Carolina Court of Appeals |
Richard H. Rhodes, of Burts, Turner, Rhodes & Thompson, Spartanburg, for appellant.
James C. Cothran, Jr., of Holcombe, Bomar, Cothran & Gunn, Spartanburg, for respondent.
Lisa Hines Cash (the mother) brought this action against Billy Aaron Cash (the father) seeking, among other things, a decree of separate maintenance, custody of the parties' minor child, and equitable division of marital property. The father counterclaimed for a divorce on the ground of adultery, custody of the minor child, equitable division of marital property, and attorney's fees. The mother appeals the family court order (1) granting custody of the parties' minor child to the father, (2) dividing the parties' marital property, and (3) requiring the mother to pay $1575.00 toward the father's attorney's fees and costs. We affirm.
The parties were married on June 1, 1985 and separated in January of 1994. One child, Brittany Allison Cash, was born of the marriage. Incident to the parties' separation, during which time the father remained in the marital home and the mother moved into a motel, they voluntarily agreed to a joint custodial arrangement with each parent spending equal time with the child. 1 In March of 1994, the mother instituted an action against the father seeking separate maintenance, joint custody of the minor child and equitable division. The father counterclaimed seeking a divorce on the ground of adultery, sole custody of the child, equitable division of marital property and attorney's fees and costs. In reply, the mother also sought primary custody of the child.
The parties were divorced in September of 1994. At the time of the hearing, the parties' minor child was three years old. The family court awarded primary custody of the parties' minor child to the father, ordered the parties to maintain their previous custodial arrangement until the child starts mandatory school, equitably divided the parties' marital property and ordered the mother to pay $1575.00 toward the father's attorney's fees and costs, including $750.00 in costs the father incurred in detective fees. This appeal followed.
On appeal, the mother argues the trial court erred in awarding primary custody of the child to the father because the "tender years doctrine" favors an award of custody to her. We disagree.
In appeals from the family court, our court has jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. This broad scope of review, however, does not require this court to disregard the findings below, nor relieve the appellant of his burden of showing the lower court committed error. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). Neither are we 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. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981).
The family court judge obviously found child custody to be a difficult decision in this case. The judge noted both parties are "head and shoulders above most parents" and either would be fit to provide custodial care for the child. The judge found the mother spent adequate time with the child, did things necessary for the child, and was primarily responsible for keeping the marital home in excellent condition. The judge, however, noted the father was "truly exceptional" and spent more time with the child as a result of the allocation of duties between the parties. 2 The guardian ad litem (GAL) testified he visited both parties in their respective homes during times when Brittany was present. The GAL testified both parties seemed to be excellent parents and stated the child appeared very comfortable and happy with both parents. The GAL did not make a recommendation as to primary custody.
The mother does not challenge the family court judge's findings of fact regarding custody. Rather, in arguing she should have been awarded custody of Brittany, the mother relies heavily, and in fact exclusively, on the provisions of the "tender years doctrine." Specifically, the mother asserts the trial court erred in failing to consider that in cases where both parents are equally suited for custody, the tender years doctrine favors the mother. See Stutz v. Funderburk, 272 S.C. 273, 252 S.E.2d 32 (1979) () The mother's reliance on this doctrine is misplaced.
In child custody disputes, the welfare and best interests of the children is the paramount and controlling consideration and the family court should consider "the character, fitness, attitude and inclinations on the part of each parent" as they impact on the children. Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884 (1994). Until recently, the "tender years doctrine," which creates a preference for the mother of young children, was also a proper factor to be weighed by the family court in determining custody. Id. However, the tender years doctrine has now been statutorily abolished. See S.C.Code Ann. § 20-7-1555 (Supp.1994). It follows that to the extent prior case law interprets...
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Dobyns v. South Carolina Dept. of Parks, Recreation and Tourism
...of Abbeville, 312 S.C. 359, 440 S.E.2d 396 (Ct.App.1994) (unchallenged ruling by trial court is the law of the case); Cash v. Cash, 320 S.C. 388, 465 S.E.2d 371 (1995) (failure to raise issue at trial or make post trial motion renders issue procedurally barred). Diss also asserts the Court ......