Daily v. Daily

• Decision Date: 10 February 2021
• Docket Number: Appellate Case No. 2017-001199,Opinion No. 5801
• Citation: 432 S.C. 608,854 S.E.2d 856
• Court: South Carolina Court of Appeals
• Parties: Shaundra B. DAILY, Respondent/Appellant, v. Julian D. DAILY, Appellant/Respondent.

432 S.C. 608

854 S.E.2d 856

Shaundra B. DAILY, Respondent/Appellant,

v.Julian D. DAILY, Appellant/Respondent.

Appellate Case No. 2017-001199

Opinion No. 5801

Court of Appeals of South Carolina.

Heard November 6, 2019

Filed February 10, 2021

Nicole Nicolette Mace, of The Law Offices of Curt Sanchez, P.A., of West Palm Beach, Florida, for Appellant-Respondent.

Edward Delane Rosemond, of The Rosemond Law Firm, PA, and Kimberly Welchel Pease, of Kimberly R. Welchel, Attorney at Law, both of Seneca, both for Respondent-Appellant.

Floy Kenyon Anderson, of Kenyon Lusk & Anderson, of Anderson, Guardian ad Litem, pro se.

WILLIAMS, J.:

In this cross-appeal from the family court, Julian D. Daily (Father) argues the family court erred in (1) awarding Shaundra Bryant Daily (Mother) sole custody of the parties' two minor daughters following her relocation to Florida, (2) setting the parallel parenting plan and his visitation, (3) finding him in contempt, and (4) ordering him to pay a portion of Mother's attorney's fees and one-half of the guardian ad litem's (GAL) fees. Mother argues the family court erred in failing to order Father to pay the full amount of her attorney's fees. We affirm as modified.

FACTS/PROCEDURAL HISTORY

Father and Mother (Parents) married in 2004, and they had two daughters: LGD and ZMD (collectively, Daughters), born in 2006 and 2009. Parents both filed for divorce on January 6, 2012, and subsequently reached an agreement resolving all matters in the divorce. On March 25, 2013, the family court issued an order granting Parents a divorce and adopting their agreement (Divorce Decree). Under the Divorce Decree, Parents had joint custody and Daughters were placed with Mother during the school year; Father had visitation alternating weekends, holidays, and the summer. After the divorce, Mother lived in Pickens, South Carolina, and Father lived in Atlanta, Georgia.

In 2015, Mother filed a complaint requesting permission to relocate to Gainesville, Florida; child support; attorney's fees and costs; and modification of Father's visitation. Mother, a professor, wanted to move because she received a job offer from the University of Florida. Father filed an answer and counterclaim, requesting dismissal of Mother's complaint and seeking full custody of Daughters or, alternatively, joint custody with primary placement. The family court issued a temporary order on March 26, 2015, (1) holding Parents would remain subject to the provisions of the Divorce Decree, (2) requiring Parents attend mediation, and (3) ordering a hearing in the event mediation was unsuccessful. The order also appointed a GAL and established the GAL's hourly rate and a fee cap of $3,500. On August 25, 2015, the family court issued a second temporary order (Temporary Order), which allowed Mother to relocate to Gainesville with Daughters. The court found the move was in Daughters' best interest and consistent with Latimer v. Farmer .¹ The Temporary Order gave Father visitation and ordered him to pay child support. Father subsequently moved from Atlanta to Cincinnati, Ohio, without informing Mother or the GAL until after he moved.

Shortly before the final hearing scheduled for June 2016, the family court ordered Father to undergo a psychological evaluation (Evaluation Order) pursuant to Mother's request. The court rescheduled the hearing. Father did not undergo the evaluation. Parents also filed multiple rules to show cause, which were consolidated and considered at the final hearing.

On March 13, 2017, the family court issued a final order (Final Order) granting Mother sole custody. The family court found the joint custodial arrangement was no longer in Daughters' best interest and awarded visitation to the Father. It also instituted a "Parallel Parenting Plan" (Parenting Plan) and required Parents to communicate exclusively through Our Family Wizard² (OFW) absent an emergency. The Parenting Plan also contained a restraining order prohibiting Parents from coming within fifteen feet of each other or having any physical or verbal confrontation.

The family court additionally found Father failed to prove contempt by Mother but found Father in contempt for willfully violating the Divorce Decree and the Evaluation Order. The family court ordered Father to compensate Mother for enforcing the orders and fined him $1,500 for disobeying the Evaluation Order. The court also awarded Mother $5,400 in attorney's fees—which included the compensatory contempt award—and ordered Parents to each pay one half of the GAL's fees.

Parents both filed motions to reconsider. The family court denied Father's motion and partially granted Mother's motion as to summer visitation.³ This appeal followed.

ISSUES ON APPEAL

I. Did the family court err in awarding Mother sole custody?

II. Did the family court err in setting the Parenting Plan and Father's visitation?

III. Did the family court err in finding Father in contempt for violating the Divorce Decree and the Evaluation Order?

IV. Did the family court err in ordering Father to pay $5,400 of Mother's attorney's fees?

V. Did the family court err in ordering Father to pay half of the GAL's fees?

STANDARD OF REVIEW

On appeal from the family court, the appellate court reviews factual and legal issues de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam). Thus, the appellate court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis , 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). However, this broad scope of review does not require the appellate court to disregard 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. Id. at 385, 392, 709 S.E.2d at 651–62, 655. Therefore, the appellant bears the burden of convincing the appellate court that the family court committed an error or that the preponderance of the evidence is against the family court's findings. Id. at 392, 709 S.E.2d at 655.

LAW/ANALYSIS

I. Custody

Father asserts the family court erred in awarding Mother sole custody of Daughters. We disagree.

The controlling considerations in all child custody controversies are the child's welfare and best interest. Divine v. Robbins , 385 S.C. 23, 32, 683 S.E.2d 286, 291 (Ct. App. 2009) ; see also S.C. Code Ann. § 63-15-230(A) (Supp. 2020) ("The court shall make the final custody determination in the best interest of the child based upon the evidence presented."). "[A] determination of the best interest of the children is an inherently case-specific and fact-specific inquiry." McComb v. Conard , 394 S.C. 416, 423, 715 S.E.2d 662, 665 (Ct. App. 2011) (alteration in original) (quoting Rice v. Rice , 335 S.C. 449, 458, 517 S.E.2d 220, 225 (Ct. App. 1999) ). It is also appropriate to consider the opinions of third parties, including the GAL and expert witnesses. Brown v. Brown , 412 S.C. 225, 239, 771 S.E.2d 649, 656 (Ct. App. 2015).

Determination of the child's best interest requires consideration of the "character, fitness, attitude, and inclinations on the part of each parent as they impact the child" as well as the "psychological, physical, environmental, spiritual, educational, medical, family, emotional[,] and recreational aspects of the child's life." Woodall v. Woodall , 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996). Subsection 63-15-240(B) of the South Carolina Code (Supp. 2020) provides additional factors to consider.

"When a party seeks to alter a joint custody arrangement, the party has the burden of establishing a material change of circumstances substantially affecting the child's welfare." Dixon v. Dixon , 336 S.C. 260, 263, 519 S.E.2d 357, 359 (Ct. App. 1999). "Such a change in circumstances simply means that sufficient facts have been shown to conclude that the best interests of the child would be served by the change." Id.

Cases involving the relocation of a custodial parent are some "of the most challenging problems our family courts encounter." See Latimer v. Farmer , 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004). "The effect of relocation on the child's best interest is highly fact specific. It should not be assumed that merely relocating and potentially burdening the non-custodial parent's visitation rights always negatively affects the child's best interests." Id. at 382, 602 S.E.2d at 35. "Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances." Walrath v. Pope , 384 S.C. 101, 106, 681 S.E.2d 602, 605 (Ct. App. 2009) (quoting Latimer , 360 S.C. at 382, 602 S.E.2d at 35 ).

Our supreme court, without endorsing or enumerating a specific test, has highlighted relevant factors other states consider when confronted with parental relocation. Latimer , 360 S.C. at 382–83, 602 S.E.2d at 35–36. These factors are: (1) the economic, emotional, and educational advantages of the move; (2) the child's relationship with both parents and the impact of the move on the non-custodial parent's relationship with the child; (3) the availability and feasibility of a realistic substitute visitation arrangement, including technology, that will adequately preserve and foster the child's relationship with the non-custodial parent; (4) each parent's motive for seeking or opposing the relocation; and (5) the likelihood the move is not the result of a whim but would substantially improve the quality of life for the custodial parent and child. See id.

We agree with the family court that Father's and Mother's respective relocations, and inability to communicate and make joint decisions have necessitated Mother having sole custody.

We have concerns regarding Father's failure to foster a positive relationship between Mother and Daughters if Father were awarded custody. The record indicates Daughters' communication with Mother is negatively impacted when they are in Father's custody. For...