Henggeler v. Hanson, No. 2912.

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 333 S.C. 598,510 S.E.2d 722
• Parties: Scott W. HENGGELER, Appellant, v. Cindy L. HANSON, Respondent.
• Docket Number: No. 2912.
• Decision Date: 14 December 1998

333 S.C. 598
510 S.E.2d 722

Scott W. HENGGELER, Appellant,
v.
Cindy L. HANSON, Respondent

No. 2912.

Court of Appeals of South Carolina.

Heard November 4, 1998.

Decided December 14, 1998.

Rehearing Denied February 27, 1999.

333 S.C. 600

Susan King Dunn; Ann Francis Bleecker, of Wendt & Bleecker, of Charleston; C. Dixon Lee, III, and James L. McLaren, both of McLaren & Lee, of Columbia, for appellant

Steven A. James, of Mt. Pleasant; and Stephen P. Groves, Sr., of Young, Clement, Rivers & Tisdale, of Charleston, for respondent.

Richard C. Bell, of Charleston, Guardian Ad Litem.

PER CURIAM:

This is an appeal from a family court order denying Scott W. Henggeler's request for a change of custody. We affirm.

FACTS

Henggeler and Cindy L. Hanson married August 21, 1982. They have two children, both adopted as infants and both of Korean ancestry. Their daughter Lee was born October 31, 1986 and their son Jay was born June 23, 1990. In 1992 the family moved to Charleston and both parties became faculty members with the Department of Psychiatry at MUSC.

On March 29, 1994 Henggeler and Hanson were granted a divorce based on Henggeler's adultery. The parties entered

333 S.C. 601

into an agreement which was incorporated into the divorce decree. The parties agreed to share joint custody of the children with Hanson having primary custody and Henggeler having secondary custody. The agreement also stated

All major decisions concerning the children shall be made by both parents together whenever possible. If, however, the parties are unable to reach an agreement, the Mother, as primary custodian, shall have the authority to make necessary decisions on behalf of the children. The wife's authority in this respect includes the authority to make a unilateral decision to relocate the children out of state, if necessary. The parties acknowledge the wife's lack of job security in her present position at the Medical University of South Carolina and acknowledge that if she loses her position at the Medical University, her search for other reasonable employment which is compatible with her skills and experience might take her out of the state. While the husband does not waive his right to seek sole custody of the children in the event the wife determines it necessary for her to relocate with the children out of state, the Husband agrees that he will not seek a court order prohibiting the wife from moving with the children on a temporary basis but his recourse would be to seek a change of custody at a final hearing on the merits.

(Emphasis added.)

On June 30, 1996 grant money funding Hanson's position at MUSC ran out and her position was terminated. Unable to locate comparable employment in Charleston, Hanson accepted a tenured position at the University of Central Florida in Orlando.

Henggeler sued Hanson requesting a change of custody. After a lengthy hearing, the family court left custody the same—the parties sharing joint custody and Hanson having primary custody. The court ordered Henggeler to pay Hanson's attorney fees and costs of $35,000.

SCOPE OF REVIEW

On appeal from the family court, this court has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.

333 S.C. 602

Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884 (1994). We are not, however, required 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). Further, this broad scope of review does not relieve the appellant of the burden of convincing this court that the family court committed error. Skinner v. King, 272 S.C. 520, 252 S.E.2d 891 (1979). 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.

DISCUSSION

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