Harrison v. Ballington, No. 2797.

• Court: Court of Appeals of South Carolina
• Writing for the Court: HUFF.
• Citation: 498 S.E.2d 680,330 S.C. 298
• Parties: Forest Todd HARRISON, Sr., Appellant, v. Peggy D. BALLINGTON and Lewis B. Ballington, Respondents. In Re Forest Todd HARRISON, Jr., a minor under the age of fourteen.
• Docket Number: No. 2797.
• Decision Date: 23 February 1998

330 S.C. 298
498 S.E.2d 680

Forest Todd HARRISON, Sr., Appellant,
v.
Peggy D. BALLINGTON and Lewis B. Ballington, Respondents.
In Re Forest Todd HARRISON, Jr., a minor under the age of fourteen

No. 2797.

Court of Appeals of South Carolina.

Heard January 7, 1998.

Decided February 23, 1998.

Rehearing Denied April 23, 1998.

330 S.C. 300

Walter H. Smith, Columbia, for appellant

G. Robin Alley, Isaacs, Alley & Harvey, Columbia, for respondents.

Patrick John Frawley, of Nicholson, Davis, Frawley, Anderson & Ayer, Lexington, Guardian ad Litem.

HUFF, Judge:

This is a child custody dispute between appellant, Forest Todd Harrison, Sr. (Todd), and appellant's mother and stepfather, Peggy and Lewis Ballington (the Ballingtons), over appellant's son, Forest. The trial judge ordered that custody of Forest remain with the Ballingtons. Todd appeals. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

Forest was born on August 27, 1987 to the marriage of Todd Harrison and Kathy Hudson Harrison. Todd and Kathy

330 S.C. 301

separated on January 18, 1989 and were divorced by decree of the family court dated March 27, 1990. Pursuant to the March 1990 decree, Kathy was awarded custody of the minor child, subject to a fixed schedule of visitation in favor of the father. On August 11, 1990, Kathy died suddenly after a brief illness. Upon the mother's death, the Ballingtons took possession of the child. Shortly thereafter, the Ballingtons instituted an action against Todd seeking custody of the child. Subsequently, the parties reached an agreement which was adopted by the family court by order dated February 22, 1991. Pursuant to that agreement, the Ballingtons were granted custody of the child and Todd was awarded limited visitation. This visitation was to increase over the months following the issuance of the order. The order further provided the father was to make weekly child support payments and to enroll in safe parenting classes. It also required all the parties to submit to psychological evaluation in order to determine the effect of visitation on the child. In February 1992, Todd's visitation was reduced for failure to comply with the court ordered psychological evaluation. Subsequently, however, Todd was awarded increased visitation, including overnight stays

The present action was instituted by Todd on August 6, 1992, seeking, among other things, an order granting him custody of the child, based in part on changed circumstances. He also asserted in his complaint that he was entitled to an order granting him custody because he is the child's natural father and is a fit parent. The Ballingtons answered and counterclaimed, generally denying the allegations contained in the father's complaint and seeking attorney fees and costs and an increase in child support.

By order dated May 20, 1996, the family court judge determined that custody should remain with the Ballingtons. He found the case should be analyzed as a modification based on changed circumstances. He held that the four part criteria enunciated in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) was inapplicable to the case at hand because Moore and its progeny applied only to situations where the biological parent temporarily relinquished custody. He found that by voluntarily entering into an agreement relinquishing custody of his son, Todd waived his priority status accorded by Moore.

330 S.C. 302

The final order made no mention of the agreement being of a temporary nature. He thus found the proper analysis of the case was under a change of circumstances. While the trial judge determined Todd had proven a substantial change in circumstances, the changes were not substantial enough to warrant a change of custody from the Ballingtons. The father appeals

LAW/ANALYSIS

Todd contends the trial judge erred in determining this action should be treated as a change of circumstances case instead of a case subject to the criteria set forth in Moore, based on the fact that he is a biological parent seeking to recover custody of his son from third parties. We agree.

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