Divine v. Robbins

• Decision Date: 28 July 2009
• Docket Number: No. 4600.,4600.
• Citation: 683 S.E.2d 286,384 S.C. 23
• Court: South Carolina Court of Appeals
• Parties: John S. DIVINE, IV, Respondent, v. Josette A. ROBBINS, Appellant.

683 S.E.2d 286

384 S.C. 23

John S. DIVINE, IV, Respondent, v. Josette A. ROBBINS, Appellant.

No. 4600.

Court of Appeals of South Carolina.

Heard June 9, 2009.

Decided July 28, 2009.

Rehearing Denied September 17, 2009.

K. Douglas Thornton, of Conway, for Appellant.

Martha L. Hamel, of Pawleys Island, for Respondent.

GEATHERS, J.:

Josette Robbins (Mother) appeals the family court's decision to award John Divine (Father) sole custody of their six-year-old child (Daughter) because it was against Daughter's best interests. Mother asserts the family court placed undue reliance on Father's expert witness and erred in several evidentiary rulings, which resulted in the family court making improper credibility determinations regarding the parties and their witnesses. Mother also contends her counsel's ineffective representation prevented her from having a meaningful final hearing in violation of her due process rights. We affirm.

FACTS

At present, Mother is 40 years old and Father is 42 years old. Mother and Father were involved in a romantic relationship from 1998 until 2002 but never married or lived together. The parties first met when Mother was a waitress at one of the restaurants that Father owns in the Myrtle Beach area.¹ While Mother and Father stated they were initially in love, their relationship progressively deteriorated due to Mother's erratic behavior, jealousy issues, and physical violence towards and harassment of Father. As a result of Mother's behavior, Father ended the relationship in February 2002. Despite the break-up, the parties still maintained contact, and in July 2002, Mother became pregnant. Daughter was born on May 4, 2003. In addition to Daughter, each party has one daughter from another relationship.

At the final hearing, Mother testified that Father initially denied being Daughter's father and urged Mother to have an abortion on several occasions. Mother also stated that Father provided no emotional support during her pregnancy and did not provide any financial support until several months after Daughter's birth. In contrast, Father stated that while he was initially uncertain whether Daughter was his child due to the status of his relationship with Mother when she became pregnant, he readily accepted responsibility for Daughter as soon as a paternity test identified him as Daughter's father.

To provide financial support, Father paid Mother's medical bills; purchased baby furniture for Mother's home; bought maternity clothes for Mother; sent Mother a $3,000 check for Daughter in July 2003, which Mother tore up and mailed back to Father; and sent Mother a $4,000 check approximately six months after Daughter's birth for her support, which Mother accepted. Despite Father's earnest efforts to be involved in Daughter's life, Mother allowed Father to visit Daughter only in Mother's home and at times convenient to Mother. Mother testified that she wanted Father to visit Daughter in her home because Daughter was a premature baby and Father had no previous experience with small children. Father claimed that Mother told him the only way he could see Daughter on a regular basis was if he agreed to marry Mother. Mother, on the other hand, testified that she initially attempted to establish a regular visitation schedule with Father, but Father was unwilling to come on set days because his schedule changed often due to his business.

Father initially attempted to resolve the custody and visitations issues directly with Mother. When this was unsuccessful, Father employed an attorney in October 2003 to contact Mother to establish a regular visitation schedule and to offer $1,400 per month in child support. In response, Mother told Father that she would only permit regular visitation of Daughter if ordered to do so by a judge. Mother then denied Father visitation with Daughter for a period of five weeks in an effort to "push him to come up with a schedule."

As a result of the visitation issues, Father filed the instant action on November 17, 2003, requesting joint custody of Daughter, visitation, the establishment of child support obligations, the right to conduct discovery, and mutual restraining orders. On December 18, 2003, the parties agreed to give Mother temporary custody of Daughter pending a final hearing on the merits and specified visitation arrangements and child support. The following day, Mother filed an answer and counterclaim, requesting custody, child support, and attorney's fees.

As time passed, Father became increasingly concerned about Mother's psychological state and its effect upon her ability to parent and care for Daughter. Consequently, on May 19, 2004, Father moved to amend his pleadings to request sole custody of Daughter and sought a court-ordered psychiatric evaluation for Mother and a court-appointed guardian ad litem for Daughter. In response, the family court permitted Father to amend his pleadings to request sole custody of Daughter and confirmed the parties' choice of Melissa Emery as Daughter's guardian ad litem.² The family court did not require Mother to submit to a psychiatric evaluation at that time.

On June 21, 2004, Mother's counsel filed a motion to be relieved as counsel, citing his inability to effectively communicate with Mother. The family court then granted Mother's first of three requests to continue the final hearing originally set for November 4, 2004 in order to find substitute counsel. To accommodate Mother, the family court rescheduled the final hearing two more times prior to the final hearing.

In March 2005, Father filed a motion to compel discovery, and he again requested a psychiatric evaluation for Mother. On April 18, 2005, the family court granted Father's request to compel discovery and ordered Mother to submit to a psychiatric evaluation at Father's expense. On June 22, 2005, C. Barton Saylor, PhD., a licensed clinical psychologist and diplomate in forensic psychology, conducted a psychiatric evaluation of Mother and testified as to his conclusions at the final hearing.

The final seven-day hearing took place on September 12 and 15, 2005, and then reconvened on October 13, 14, 25, 27, and 28, 2005. In its thirty-two page final order, the family court made numerous findings in support of its decision to award sole custody of Daughter to Father. Although the family court acknowledged that joint custody was a permissible alternative, based on the continued hostilities between the parties and the lack of Mother's ability to maintain a cooperative co-parenting relationship with Father, the family court found Daughter's best interests would be served by granting Father sole custody of Daughter. This appeal followed.

ISSUES ON APPEAL

Mother presents the following arguments as to why the family court's decision to award sole custody to Father was erroneous:

(1) The family court's award of custody was against Daughter's best interests.

(2) The family court placed undue reliance on Father's expert witness, whose testimony was incomplete and biased in favor of Father.

(3) The family court erred in several evidentiary rulings, which prevented Mother from presenting complete and probative evidence at the final hearing.

(4) The family court's undue reliance on Father's expert witness and improper evidentiary rulings resulted in the family court making improper credibility determinations regarding the parties and their witnesses.

(5) The family court failed to provide Mother with a meaningful final hearing in violation of her substantive due process rights due to her counsel's lack of preparation and ineffective representation at the final hearing.

STANDARD OF REVIEW

On appeal from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994). However, this broad scope of review does not relieve the appellant of the burden of convincing us that the family court committed error. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189-90, 612 S.E.2d 707, 711 (Ct.App.2005). Nor are we required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimonies. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

With respect to custody determinations, the appellate courts have consistently shown deference to the family court in electing between fit parents. Altman v. Griffith, 372 S.C. 388, 393, 642 S.E.2d 619, 621 (Ct. App.2007). "In gauging between fit parents as to who would better serve the best interests and welfare of the child in a custodial setting, the family court judge is in a superior position to appellate judges who are left only to review the cold record." Altman, 372 S.C. at 393, 642 S.E.2d at 622. For this reason, custody decisions are matters left largely to the discretion of the family court. Stroman v. Williams, 291 S.C. 376, 378, 353 S.E.2d 704, 705 (Ct.App.1987).

LAW/ANALYSIS

I. Best Interests of Daughter

Mother argues the family court's decision to grant Father sole custody of Daughter was against Daughter's best interests. We disagree.

In all child custody controversies, the controlling considerations are the child's welfare and best interests. Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978). In determining custody, the family court "must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child." Woodall v. Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996). Because all relevant factors must be taken into consideration, the family court should also review the "psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects" of the child's life. Id. In other words, the totality of circumstances unique to each particular case ...