Heckle v. Heckle, 20177

• Decision Date: 01 March 1976
• Docket Number: No. 20177,20177
• Citation: 223 S.E.2d 590,266 S.C. 355
• Court: South Carolina Supreme Court
• Parties: Robert C. HECKLE, Respondent, v. Elizabeth B. HECKLE, Appellant.

Page 590

223 S.E.2d 590

266 S.C. 355

Robert C. HECKLE, Respondent, v. Elizabeth B. HECKLE, Appellant.

No. 20177.

Supreme Court of South Carolina.

March 1, 1976.

Bryant, Fanning & Yarborough, Orangeburg, for appellant.

Betty M. Sloan, Columbia, for respondent.

LEWIS, Chief Justice:

The issues in this appeal concern the respective rights of the respondent (husband) and the appellant (wife), now divorced, to the custody of their three year old daughter.

Appellant and respondent were married on September 7, 1968, and a daughter was born to the marriage on September 22, 1972. Marital difficulties subsequently developed and respondent instituted an action in the County Court for Orangeburg County for an absolute divorce on the ground of appellant's adultery and for custody of the child, with appellant filing a counterclaim for a divorce a mensa et thoro, custody of the child, alimony and child support. This action resulted in an agreement of the parties, pursuant to which an order was issued on June 24, 1974 declaring the parties legally separated and granting custody of the daughter (then two years of age) to appellant, the mother, with visitation rights to the respondent, father. The order of the county court further provided that 'in all other respects, this action is dismissed without prejudice to the rights of either of the parties.'

Thereafter, the present action was instituted on September 17, 1974 by the respondent in the Family Court for Orangeburg County upon the same grounds and seeking the same relief as sought in the prior action brought in the county court. The answer of appellant denied the allegations of misconduct and sought an increase in the amount of the child support payments. Appellant also moved to dismiss the action, in so far as it affected child custody, on the ground that the county court retained jurisdiction of the issue.

After hearings in the early part of December 1974, the Family Court granted a divorce to respondent upon finding appellant guilty of adultery, held that appellant was not entitled to alimony, refused to dismis the action for child custody, and granted custody of the child to respondent, the father.

Appellant does not contest the decree of divorce nor does she seek alimony. However, she has appealed the award of custody. In view of the exceptions challenging the jurisdiction and authority of the Family Court to determine custody, we must first determine that issue. Appellant contends that, since custody of the child had previously been settled under an order of the county court, the jurisdiction of that court continued and the Family Court was without jurisdiction to issue the present order changing the custody previously adjudicated, relying upon the decision of this Court in Clinkscales v. Clinkscales, 243 S.C. 377, 134 S.E.2d 216. The alternative position is taken that, assuming jurisdiction of the Family Court to consider the question of custody, its authority extended only to a determination of whether there had been a change of circumstances sufficient to warrant a change of custody; and that such changed circumstances had not been shown.

The order of the county court of June 24, 1974, awarding custody of the child to appellant, entered pursuant to the voluntary agreement of the parties, constituted an adjudication by the court that such was for the best interest of the child. We have held that, in order to change the custody so fixed by an order of court, there must be a showing of changed circumstances accruing subsequent to the entry of the decree, which would warrant modification for the best interests of the child. Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376; Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581.

Since we conclude that the evidence failed to show a material change in circumstances since the order of the County Court of June 24, 1974, so as to authorize a change in custody as fixed by that order, we find it unnecessary to determine whether the Family Court had jurisdiction of the issue of custody. For, irrespective of the question of jurisdiction, the judgment of the Family Court must be reversed for lack of adequate evidentiary support, leaving the previous order of the County Court of June 24, 1974, in effect.

The parties have been before this Court upon petitions for supersedeas, resulting in the development of certain evidentiary matters occurring since February 20, 1975, the date of the Notice of Intention to Appeal. The motion of respondent that these subsequent pleadings and facts be considered a part of the...