Dodge v. Dodge
| Decision Date | 20 April 1998 |
| Docket Number | No. 2831.,2831. |
| Citation | 505 S.E.2d 344,332 S.C. 401 |
| Parties | CoSaundra Morrow DODGE, Plaintiff, v. Charles O. DODGE, Defendant. George W. MORROW, Virginia B. Morrow, and C. Franklin Rizer, Respondents, v. Charles O. DODGE, Appellant. |
| Court | South Carolina Court of Appeals |
Mark A. Mason, of Mason Law Firm, Mt. Pleasant, for appellant.
Doyet A. Early, III, of Early & Ness, Bamberg, for respondents.
James L. Verenes, Aiken, Guardian Ad Litem.
This appeal involves a dispute between the father, the maternal grandparents and the stepfather regarding custody of two minor children after the death of their mother. The family court granted joint legal custody. It awarded physical custody to the stepfather and grandparents and gave the father visitation. The father appeals the joint custody arrangement as well as several other issues. We affirm in part, reverse in part and remand.
Charles O. Dodge (the father) and CoSaundra Morrow Dodge Rizer (the mother) were married on December 1, 1984. Two children were born of the marriage: Charles Morrow Dodge, 11, born on May 2, 1986, and William Brett Dodge, 8, born on September 19, 1989. The mother and father separated on August 22, 1992 and were divorced by order of the family court dated September 21, 1993. The family court order adopted an agreement between the mother and the father giving the mother custody and the father reasonable visitation. The order further provided for the payment of child support by the father.
The mother married C. Franklin Rizer (the stepfather) on May 19, 1994. On February 19, 1996, the mother gave birth to her third son, Kirkland Lee Rizer. The mother died on February 22, 1996 from complications arising from her pregnancy and delivery. Kirkland survived.
On February 28, 1996, the father filed a motion seeking an order confirming that custody of his children automatically reverted to him following the mother's death. On March 1, 1996, the stepfather and the maternal grandparents, George and Virginia Morrow, joined as plaintiffs in an action against the father seeking custody. The father answered and counterclaimed, also seeking custody.
The family court held a temporary hearing on March 4, 1996. By temporary order dated March 15, 1996, the family court granted the parties joint custody of the children. The court also appointed a guardian ad litem for the children. Pursuant to the terms of this order, the children were to remain with the stepfather and grandparents in Bamberg, South Carolina, until ten days after the completion of the school year. Then the children were to be with the father at his home on Sullivan's Island for six weeks. During the period the children remained with the stepfather and grandparents, the father was to continue paying child support and his visitation rights remained in full force and effect. During the six week period the children were to be with the father, the stepfather and grandparents were to have visitation on every other weekend and the father's child support obligation was to be suspended. The order further provided that "in the event this case has not been heard on its merits and a final disposition made, the Court will conduct another temporary hearing at the end of the father's six week custodial period."
On March 19, 1996, the father filed a petition for a writ of supersedeas in the South Carolina Supreme Court arguing the family court erred in failing to grant him custody absent a finding that he was unfit, and in ordering a joint custodial arrangement without the consent of the parties. This petition was denied on May 14, 1996.
Pursuant to the March 15, 1996 order, the family court held a second temporary hearing on July 16, 1996. The resulting temporary order, dated July 17, 1996, provided that the children were to be returned to the custody of the stepfather pending a final hearing on the merits. The order further provided that in the event the final hearing on the merits was not concluded by August 16, 1996, the court would again revisit the issue of where the children would live pending a final hearing on the merits. The father's subsequent motion to reconsider was denied.
Following the denial of his motion for reconsideration, the father again petitioned the South Carolina Supreme Court for a writ of supersedeas. A supreme court justice granted the petition on July 18, 1996, prior to receiving a return to the petition. However, upon review, the supreme court vacated the writ on July 25, 1996.
The family court held a final hearing on the merits on August 12, 13, 15, and 16, 1996. By order dated August 21, 1996, the court ordered the father to undergo a psychological evaluation. The order provided the record would remain open pending the completion of the evaluation. The order further provided that pending the court's receipt of the psychologist's evaluation, custody of the children would remain with the stepfather and grandparents and the father's visitation rights would continue as previously ordered.
On January 13, 1997, the final hearing was reconvened, at which time the court heard testimony from Dr. James Maish, the court appointed psychologist.
On April 8, 1997, the family court issued its final order granting the father, stepfather and grandparents joint legal custody. Pursuant to the terms of the order, the stepfather and grandparents were to have physical custody of the children during the school year, with visitation for the father on every other weekend, excluding Mother's Day, and alternating Spring Break and Thanksgiving holidays. The court also granted the father visitation during Christmas vacations. The father was to have physical custody of the children during the summer, including every Father's Day, with two weekend visitations for the stepfather and grandparents.
The court ordered the father to continue meeting his child support obligation, including an arrearage, as previously ordered. The court further ordered that social security benefits which the children receive due to the mother's death were to be paid to the stepfather, who was in turn to pay the benefits to the father during his custodial period. The stepfather was awarded the yearly tax exemption for the children. The family court further found that each party should be responsible for his own attorney fees, and that the father should pay one-half of the guardian ad litem fees with the stepfather and grandparents jointly responsible for payment of the remaining half. The court denied the father's subsequent motion for reconsideration.
In a custody dispute, the paramount and controlling factor is the welfare and best interests of the child. Fisher v. Miller, 288 S.C. 576, 578, 344 S.E.2d 149, 150 (1986). This court may find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884 (1994). We are not required, however, to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). Because the appellate court lacks the opportunity for direct observation of the witnesses, it should accord great deference to trial court findings where matters of credibility are involved. See Aiken County Dep't of Social Servs. v. Wilcox, 304 S.C. 90, 403 S.E.2d 142 (Ct.App.1991)
. This is especially true in cases involving the welfare and best interests of children. Id.
The father argues the stepfather lacked standing to initiate this action for custody. Specifically, the father argues that neither a stepfather nor any other third party may initiate a custody proceeding against a child's parent unless the action is brought as a dependency proceeding. Accordingly, claims the father, "a stepparent has no standing to claim custody rights or visitation rights relative to stepchildren." The father cites no authority for this proposition.
The father further asserts that in order to assume the role of a parent, a stepparent must terminate the rights of a living parent and legally adopt. We are aware that third parties, including stepparents, have standing to bring actions for the termination of parental rights in conjunction with an adoption proceeding. Donahue v. Lawrence, 280 S.C. 382, 312 S.E.2d 594 (Ct.App.1984) (); see Greenville County Dep't of Social Servs. v. Bowes, 313 S.C. 188, 437 S.E.2d 107 (1993)
().
Furthermore, the supreme court has permitted a third party to maintain a custody action against a natural parent. Hogan v. Platts, 312 S.C. 1, 430 S.E.2d 510 (1993). In Hogan, the child's maternal aunt and uncle sued the father for custody after the father consented to the aunt and uncle keeping his infant daughter immediately after the mother's death. The supreme court, however, did not expressly address standing.
In light of our disposition of this case, we decline to determine the broader issue of whether a stepparent has standing to bring a custody action against a natural parent. Here the stepfather sought joint custody with the children's maternal grandparents. Grandparents have sued for custody. See Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 (1978). Moreover, the children were living with their stepfather immediately after the mother's death and the mother appointed the stepfather as the children's legal guardian in her will.
On appeal, the father argues the family court erred in awarding joint legal custody and in failing to award him sole custody of his children. We agree.
Generally, there exists a rebuttable presumption that the right to custody of a...
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