Collins v. Collins, No. 0328

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON; SANDERS, C.J., and GARDNER
Citation324 S.E.2d 82,283 S.C. 526
PartiesKenneth E. COLLINS, Respondent, v. Judy O. COLLINS, Appellant. . Heard
Docket NumberNo. 0328
Decision Date24 September 1984

Page 82

324 S.E.2d 82
283 S.C. 526
Kenneth E. COLLINS, Respondent,
v.
Judy O. COLLINS, Appellant.
No. 0328.
Court of Appeals of South Carolina.
Heard Sept. 24, 1984.
Decided Dec. 10, 1984.

Page 83

[283 S.C. 527] William A. Little of Dusenbury, Hendrix & Little, Myrtle Beach, and H.E. McCaskill, Conway, for appellant.

John P. Henry of Thompson & Henry, P.A., Conway, for respondent.

CURETON, Judge:

In this domestic action, the wife, Judy Collins, appeals from the order of the family court awarding the father, Kenneth Collins, custody of the parties' minor child and denying her alimony, attorney's fees and a one-half interest in the marital residence. We affirm the judgment entered on these issues. The case is remanded, however, for proper determination of the fee to be awarded the guardian ad litem.

In July, 1981, the husband initiated this action for custody of the parties' seven-year old daughter after the wife moved out of the marital residence taking the child with her. The wife answered and counterclaimed for custody of the daughter, alimony, child support, attorney's fees and an equitable division of the marital property. The court appointed a guardian ad litem for the child. Subsequently, the wife filed a supplemental answer and counterclaim requesting a divorce on the ground of one year's continuous separation.

[283 S.C. 528] By order dated April 19, 1982, the court granted the wife a divorce but denied her request for alimony and attorney's fees. The court awarded the husband custody of the minor daughter and in an equitable division of the marital home titled solely in the wife's name, ordered the wife to convey her interest to the husband for $8,200. Each party was ordered to pay one-half of a $638 award to the guardian ad litem.

On appeal the wife contends (1) the award of custody of the minor child to the husband is against the weight of the evidence; (2) the court's in camera receipt of the recommendation of the guardian ad litem denied her due process; (3) the fee awarded the guardian is excessive; (4) the denial of alimony and attorney's fees is not supported by the evidence and amounts to

Page 84

an abuse of discretion; and (5) the equitable distribution of less than one half of the marital home to her is not supported by the evidence.

With respect to the issue of custody, the wife concedes that the father is a fit and loving parent. She argues that because the suitability of the parties is nearly equal, the "tender years doctrine" under which the mother is given preference should determine the issue of custody in her favor.

A similar argument was made by the mother of a four-year-old child in Jones v. Ard, 265 S.C. 423, 426, 219 S.E.2d 358 (1975). The Court stated:

The tender years doctrine, upon which the mother would rely, does not always require that she be given custody. The fact that she is the mother and the fact that the child is of tender years are merely matters to be considered by the trial judge, along with all the other evidence.

Accord, Ford v. Ford, 242 S.C. 344, 130 S.E.2d 916 (1963); Marshall v. Marshall, S.C. 320 S.E.2d 44 (S.C.App.1984).

Here, the evidence reveals both parties were fit to assume custody of the seven year old daughter. She shared a loving relationship with each. It is apparent, however, the father is able and willing to provide a more stable home for his daughter. Without detailing all the evidence, the record reveals that the wife is a young woman whose primary present interests are her social and career endeavors. Her employment as a disc jockey and dance instructor frequently cause her to be away from home at night. The child has been left with different persons on these occasions,[283 S.C. 529] sometimes overnight and without the prior approval of the person keeping the child.

On the other hand, the father is at home at night. He is a settled and mature person. He possesses strong moral values. The record reveals he spends time with the child and is willing to accept the responsibility of her upbringing.

"While this Court is free to find facts based on our view of the preponderance of the evidence, Brown v. Brown, [278 S.C. 43], 292 S.E.2d 297 (1982), the trial judge, who observes the witnesses and is in a better position to judge their demeanor and veracity, is given broad discretion. Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973)." McAlister v. Patterson, 278 S.C. 481, 483, 299 S.E.2d 322, 323 (1982). In this case, we find no abuse of discretion in the court's awarding custody of the daughter to the husband.

The wife next argues that the...

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13 practice notes
  • Satterfield v. Lockheed Missiles & Space Co., Inc., Civ. A. No. 2:84-0454-1.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 6, 1985
    ...in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Corder, 324 S.E.2d at 82. It is unclear from plaintiffs' complaint which of the three grounds they are relying upon in this case. Clearly, however, an unwarranted appropria......
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • September 19, 2018
    ...have been deposed by the mother's counsel; and counsel had the full right to cross-examine the testifying witnesses); Collins v. Collins , 283 S.C. 526, 530, 324 S.E.2d 82, 85 (Ct. App. 1984) ("[W]he[n] the [GAL's] report contains statements of fact, the litigants are entitled to cross-exam......
  • State v. Smith, No. 4202.
    • United States
    • Court of Appeals of South Carolina
    • February 5, 2007
    ...who was in position to know and observe all of the circumstances" and conclude an argument was not prejudicial); Collins v. Collins, 283 S.C. 526, 529, 324 S.E.2d 82, 84 (Ct.App. 1984) ("[T]he trial judge, who observes the witnesses and is in a better position to judge their demeanor and ve......
  • Appeal of Brown, No. 0686
    • United States
    • Court of Appeals of South Carolina
    • February 24, 1986
    ...Moreover, assessing the credibility of witnesses is primarily a function of the trial court, not this court on appeal. Collins v. Collins, 283 S.C. 526, 324 S.E.2d 82, 84 (Ct.App.1984). We hold that Lundh's actions were not consistent with an abandonment of her rights to receive support and......
  • Request a trial to view additional results
13 cases
  • Satterfield v. Lockheed Missiles & Space Co., Inc., Civ. A. No. 2:84-0454-1.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 6, 1985
    ...in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Corder, 324 S.E.2d at 82. It is unclear from plaintiffs' complaint which of the three grounds they are relying upon in this case. Clearly, however, an unwarranted appropria......
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • September 19, 2018
    ...have been deposed by the mother's counsel; and counsel had the full right to cross-examine the testifying witnesses); Collins v. Collins , 283 S.C. 526, 530, 324 S.E.2d 82, 85 (Ct. App. 1984) ("[W]he[n] the [GAL's] report contains statements of fact, the litigants are entitled to cross-exam......
  • State v. Smith, No. 4202.
    • United States
    • Court of Appeals of South Carolina
    • February 5, 2007
    ...who was in position to know and observe all of the circumstances" and conclude an argument was not prejudicial); Collins v. Collins, 283 S.C. 526, 529, 324 S.E.2d 82, 84 (Ct.App. 1984) ("[T]he trial judge, who observes the witnesses and is in a better position to judge their demeanor and ve......
  • Appeal of Brown, No. 0686
    • United States
    • Court of Appeals of South Carolina
    • February 24, 1986
    ...Moreover, assessing the credibility of witnesses is primarily a function of the trial court, not this court on appeal. Collins v. Collins, 283 S.C. 526, 324 S.E.2d 82, 84 (Ct.App.1984). We hold that Lundh's actions were not consistent with an abandonment of her rights to receive support and......
  • Request a trial to view additional results

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