Collins v. Collins

• Decision Date: 24 September 1984
• Docket Number: No. 0328,0328
• Citation: 324 S.E.2d 82,283 S.C. 526
• Court: South Carolina Court of Appeals
• Parties: Kenneth E. COLLINS, Respondent, v. Judy O. COLLINS, Appellant. . Heard

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.

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.

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 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, 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, , 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 court's in camera receipt of the recommendation of the guardian ad litem denied her the opportunity to cross-examine the guardian and any witnesses on whose testimony the guardian relied. Except for the statement in the court's order that "the Guardian ad Litem ... has recommended that custody be granted to the father," the record is devoid of a report or findings of the guardian ad litem. Counsel for the parties conceded in oral argument that the guardian's report was not made in open court and counsel was not made aware of the report or its subsequent filing with the court.

Our research revealed that the issue of whether a party to a custody proceeding has the right to cross-examine the guardian ad litem whose report the court considers in its decision on custody has not been decided in South Carolina. In Crowe v. Lowe, 256 S.C. 321, 325, 182 S.E.2d 310, 312 (1971), the Court said:

The appellant asserts that he was denied "due process of law" in the reliance of the lower court upon the Welfare Department reports and the result of the private interview with the children, without giving him an opportunity to offer evidence, and to cross-examine. While we refrain from the unnecessary discussion or decision of this question, we do call to the attention of the lower court and counsel the following citations ... [including Annot., 35 A.L.R.2d 629, infra ].

The annotation cited by the Court in Crowe, and its subsequent update, indicate that a majority of jurisdictions recognizes that there exists a right to be informed of and to cross-examine any court-appointed impartial investigator, agency, medical expert or guardian ad litem in a custody proceeding. See Annot., 59 A.L.R.3d 1337 (1974), superseding, in part, Annot., 35 A.L.R.2d 629 (1954). The cases generally hold that the litigants are entitled to know and have an opportunity to rebut the factual bases upon which the guardian or investigator makes his recommendation. See, e.g., Bass v. Bass, 437 P.2d 324 (Alaska 1968); Moody v. Gilbert, 208 Ga. 784, 69 S.E.2d 874 (1952); Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972); Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302 (1970); Rohrbaugh v. Rohrbaugh, 136 W.Va. 708, 68 S.E.2d 361 (1951), overruled on other grounds, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978).

We believe that the ends of justice are better served by permitting cross-examination of a guardian ad litem. We hold, therefore, that a litigant in a child custody proceeding has a right to a copy of the report of the guardian ad litem including the guardian's recommendation for custody of the minor. In addition, we hold that where the report contains statements of fact, the litigants are entitled to cross-examine the guardian ad litem and any witnesses whose testimony formed the basis of the guardian's recommendation. The...