Corey v. Corey
| Decision Date | 25 January 2016 |
| Docket Number | 2016-UP-050 |
| Parties | Heather Corey, Appellant/Respondent, v. Kevin Corey, Respondent/Appellant. In the interest of minors under the age of eighteen. |
| Court | South Carolina Court of Appeals |
UNPUBLISHED OPINION
Submitted December 21, 2015
Appeal From Greenville County No. 2014-001461 Robert N. Jenkins Sr., Family Court Judge
N Douglas Brannon, of Kennedy & Brannon, P.A., of Spartanburg, for Appellant/Respondent.
Joseph M. Ramseur, Jr. and Danielle Metoyer Mitchell, of Mitchell Ramseur, LLC, of Greenville, for Respondent/Appellant.
Bobby H. Mann, Jr., of Temple & Mann, of Greenville, Guardian ad Litem, pro se.
This cross appeal arises from an action by Heather Corey (Mother) seeking the termination of parental rights (TPR) against Kevin Corey (Father). Father counterclaimed for a change of custody. On appeal, Mother argues the family court erred in (1) disregarding the South Carolina Supreme Court's order limiting expert testimony about Father's psychosexual testing, (2) awarding grandparent visitation, (3) ordering expanded reunification with Father absent a change of circumstances, and (4) denying TPR and applying res judicata to a TPR action. Mother additionally argues the administrative judge for the family court erred by sua sponte amending a prior order and assigning a resident judge to preside over the TPR trial. Father argues the family court erred in (1) refusing to order a change of custody and (2) denying his request for attorney's fees. We affirm.
1. Mother argues the family court erred by disregarding the South Carolina Supreme Court's mid-trial order limiting expert testimony about Father's psychosexual testing. We disagree.
Father provided Mother with the results of his psychosexual testing by March 7, 2014. Before the March 24, 2014 portion of the trial, Mother requested a continuance, contending Father failed to timely provide the results of his psychosexual testing and Mother could not effectively cross-examine Father and two of his expert witnesses. The family court denied the continuance. Mother filed a notice of appeal with the supreme court and petitioned for supersedeas. In denying Mother's petition for supersedeas, the supreme court stated it was "confident the family court [would] take appropriate measures to safeguard [Mother's] due process rights and allocate additional hearing time to give the parties the ability to address the results of the testing once the results [were] provided to [Mother]." Heather C. v Kevin C., SC Sup. Ct. Order dated March 24, 2014.
We find the family court did not err because the supreme court's order did not limit the presentation of testimony regarding Father's psychosexual testing, and Mother had adequate time to review the records and prepare for examination of the expert witnesses. In particular, Mother had adequate time to prepare for Doctor Richard Dwyer, the expert who conducted the psychosexual testing at issue. Moreover, Mother extensively examined two of her own experts in rebuttal including Doctor Selman Watson, the expert with whom Mother consulted regarding the psychosexual testing results. Furthermore, although the family court denied the continuance, Mother was effectively provided an additional month to prepare for these witnesses, who were examined during the April 21-22, 2014 portion of the trial. Although the supreme court's order was not a directive, we find the family court complied with the spirit of the order and took "appropriate measures to safeguard [Mother's] due process rights and allocate additional hearing time to give the parties the ability to address the results of the testing once the results [were] provided to [Mother]." Accordingly, we affirm.
2. Mother argues the family court erred in awarding visitation to the paternal grandparents. She further asserts the visitation award violated her due process rights because Father did not request that relief in his pleadings, the grandparents were not parties, and Mother lacked notice of the issue during trial. Mother additionally argues the family court erred in awarding grandparent visitation over her objection when the court made no findings of unfitness or compelling circumstances. We disagree.
On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Nonetheless, this court is not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis, 392 S.C. at 385, 709 S.E.2d at 652. The burden is upon the appellant to convince this court that the preponderance of the evidence is against the findings of the family court. Id. "In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence." Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). "This broad scope of review does not, however, require the appellate court to disregard the findings of the family court." Id. "This degree of deference is especially true in cases involving the welfare and best interests of a minor child." Id. at 62, 624 S.E.2d at 652.
First, we find the family court did not violate Mother's due process rights in awarding visitation to the paternal grandparents when they were not made parties until after the trial. In Father's counterclaim, he requested as an alternative to granting him custody that the children be placed in the custody of the paternal grandparents. See Bass v. Bass, 272 S.C. 177, 180, 249 S.E.2d 905, 906 (1978) (); see also Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006) ("Under the penumbra of custody is the lesser included right to visitation."). Further, both grandparents testified concerning their ability to care for the children and their desire to have relationships with the children, and Mother had the opportunity to cross-examine them on those issues. Thus, Mother had adequate notice that grandparent visitation was an issue before the court and her due process rights were not violated.
Second, we find the family court did not err in awarding the paternal grandparents visitation. See Camburn v. Smith, 355 S.C. 574, 579-80, 586 S.E.2d 565, 568 (2003) (). We initially note Mother was not shown by clear and convincing evidence to be unfit, and the family court made no such finding. See S.C. Code Ann. § 63-3-530(33) (Supp. 2015) ().
However, the circumstances here are sufficiently compelling to overcome Mother's decision on visitation. See Camburn, 355 S.C. at 579, 586 S.E.2d at 568 (); id. at 580, 586 S.E.2d at 568 (); see also § 63-3-530 (33) (). In its order, the family court found it in the children's best interests to be reunited with the paternal grandparents because it would assist in the reunification process between Father and the children, the grandparents "have demonstrated love" for the children, and the grandparents "previously had a good relationship with their grandchildren" before the divorce. We agree.
The fact the grandparents demonstrated love and previously maintained a good relationship with the children-standing alone-does not create compelling circumstances to overcome Mother's decision regarding visitation with the grandparents. See Camburn, 355 S.C. at 579, 586 S.E.2d at 568 (). However, when combined with the impact visitation with the paternal grandparents would have on advancing the reunification process with Father following nearly four years of separation and sexual abuse allegations, the circumstances are sufficiently compelling to overcome the presumption that Mother's decision on visitation was in the children's best interests. We find fostering a relationship between the children and the paternal grandparents as a way to assist the children's relationship with Father is sufficiently compelling to justify ordering visitation. Cf. Marquez v Caudill, 376 S.C. 229, 249, 656 S.E.2d 737, 747 (2008) ( a biological parent's death and an attempt to maintain ties with that parent's family may be compelling circumstances justifying ordering grandparent visitation over a fit parent's objection). However, we emphasize the family court's...
To continue reading
Request your trial