High v. High

• Decision Date: 28 July 2010
• Docket Number: No. 4717.,4717.
• Citation: 389 S.C. 226,697 S.E.2d 690
• Court: South Carolina Court of Appeals
• Parties: Renee M. HIGH, Respondent/Appellant,v.John A. HIGH, II, Appellant/Respondent.

389 S.C. 226

697 S.E.2d 690

Renee M. HIGH, Respondent/Appellant,v.John A. HIGH, II, Appellant/Respondent.

No. 4717.

Court of Appeals of South Carolina.

Submitted June 1, 2010.

Decided July 28, 2010.

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COPYRIGHT MATERIAL OMITTED

Marian D. Nettles, of Lake City, and John M. Prosser, Jr., of Johnsonville, for Appellant/Respondent.

V. Lee Moore and Elizabeth J. Saraniti, of Surfside Beach, for Respondent/Appellant.

PER CURIAM.

In this child custody case, John High (Father) appeals from the family court's order granting Renee High (Mother) sole custody of the couple's two children, arguing the family court erred in: (1) refusing to qualify Teressa Harrington, LPC as an expert witness; (2) prohibiting the introduction of statements made by the couple's minor daughter to Harrington; (3) refusing to admit Harrington's records into evidence; (4) making certain findings of fact relevant to the issue of custody which are not supported by the record; (5) failing to consider important factors contained in the record in its award of primary custody to Mother; (6) awarding Mother sole custody based on the fact that Mother was historically the caregiver of the minor children; and (7) granting Mother custody based on the primary caretaker factor. In her cross-appeal, Mother argues the family court erred in (1) hearing Father's untimely motion to alter or amend, and (2) failing to award her attorney's fees and costs. We affirm.¹

FACTS

Mother and Father were married on May 4, 1996, and subsequently the couple parented two children, Daughter and Son. A day after their ten-year anniversary, Father confronted Mother about having an affair. Mother admitted to the affair, and the parties separated. After the separation, Father admitted he had several affairs early in the marriage.

On June 29, 2006, Mother filed a complaint seeking an order of separate support and maintenance. Mother also requested sole custody of the minor children, child support, equitable distribution of the assets and debts, a personal restraining order, and attorney's fees.² She later filed a supplemental complaint to request a divorce on the ground of one-year separation. Father filed an answer and counterclaim requesting the same relief and a divorce on the ground of adultery. Mother filed a reply including the affirmative defense of recrimination. Prior to trial, Mother and Father reached an agreement concerning the children's health insurance, equitable division of the assets and debts, alimony, tax liability, and communications between the parties, and the terms were included in the final order filed on October 25, 2007.

Mother proceeded with the divorce on the ground of one year's separation, and a four-day trial was held on October 22 and 25, 2007, and January 15 and 16, 2008. During the trial, the court heard the remaining issues of divorce, custody, visitation, child support, Guardian ad Litem fees, and attorney's fees, as well as a Rule to Show Cause filed by Mother seeking to have Father held in contempt of court for violation of the temporary order. On May 8, 2008, the court issued a final order, granting Mother's divorce from Father and awarding Mother sole custody of the children and child support. The order also divided the Guardian ad Litem costs, requiring Mother to pay $3,701.95 and Father to pay $6,000. The court also issued an order on the Rule to Show Cause, holding Father in contempt of court.³ Neither party filed a motion for reconsideration within the ten-day time period pursuant to Rule 59(e), SCRCP; however, on June 6, 2008, the family court filed a supplemental order with consent of the parties to address the restraining order language because Father was concerned it would impact his job as a police officer. On June 18, 2008, Father filed a motion to alter or amend the judgment. Mother filed a memorandum in opposition to the motion to alter or amend the judgment, and a hearing on the matter was held on September 30, 2008. In its order denying Father's motion, filed on January 21, 2009, the court found the motion was untimely and only raised issues that were fully addressed in the May 8, 2008 order, which had not been modified by the June 6, 2008 order; however, the court addressed the merits of Father's motion. Mother and Father both appealed to this court, and Mother filed a motion to dismiss Father's appeal,⁴ which was denied on April 13, 2009.

STANDARD OF REVIEW

In an appeal from the family court, this court has the jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Fiddie v. Fiddie, 384 S.C. 120, 124, 681 S.E.2d 42, 44 (Ct.App.2009). “Although this court may find facts in accordance with our own view of the preponderance of the evidence, we are not 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 testimony.” Id. “In particular, an appellate court ‘should be reluctant to substitute its own evaluation of the evidence on child custody for that of the [family] court.’ ” Chastain v. Chastain, 381 S.C. 295, 302, 672 S.E.2d 108, 111 (Ct.App.2009) (quoting Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996)); Altman v. Griffith, 372 S.C. 388, 393, 642 S.E.2d 619, 622 (Ct.App.2007) (stating custody determinations largely rest in the sound discretion of the family court judge); Shirley v. Shirley, 342 S.C. 324, 330-31, 536 S.E.2d 427, 430 (Ct.App.2000) (“Custody decisions are matters left largely to the discretion of the [family] court.”); Paparella v. Paparella, 340 S.C. 186, 189, 531 S.E.2d 297, 299 (Ct.App.2000) (noting appellate courts should be reluctant to supplant the family court's evaluation of witness credibility regarding child custody).

LAW/ANALYSIS

I. Father's Appeal

A. Expert Witness

First, Father argues the family court erred in refusing to qualify Teressa Harrington as an expert witness by misapprehending the law relevant to the admission or exclusion of expert witnesses. We disagree.

It is within the family court's discretion to determine whether a witness is qualified as an expert and whether his or her opinion is admissible on a fact in issue. Edwards v. Edwards, 384 S.C. 179, 183, 682 S.E.2d 37, 39 (Ct.App.2009). “On appeal, the family court's ruling to exclude or admit expert testimony will not be disturbed absent a clear abuse of discretion.” Id. “There is no abuse of discretion as long as the witness has acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury's good judgment and common knowledge.” Gadson v. Mikasa Corp., 368 S.C. 214, 228, 628 S.E.2d 262, 270 (Ct.App.2006). “The party offering the expert has the burden of showing the witness possesses the necessary learning, skill, or practical experience to enable the witness to give opinion testimony.” Id. “Defects in an expert witness' education and experience go to the weight, not the admissibility, of the expert's testimony.” Edwards, 384 S.C. at 183, 682 S.E.2d at 39 (quoting Peterson v. Nat'l R.R. Passenger Corp., 365 S.C. 391, 399, 618 S.E.2d 903, 907 (2005)).

Father alleges the family court incorrectly held that prior qualification as an expert was a precondition to admission of an expert. At trial, Father sought to have Harrington, a licensed professional counselor, qualified as an expert in child counseling. Mother objected to Harrington being admitted as an expert because Harrington did not have any published works that were recognized and relied upon by other professionals in her field. Additionally, Mother objected because Harrington had only spoken on topics like educational counseling techniques, and she had never testified in court before this case. Mother stated she did not object to Harrington testifying about the treatment she provided to Daughter. The court allowed Harrington to testify and reserved the right to rule on whether she was an expert.

In its June 6, 2008 order, the court stated it had considered Harrington's testimony, but the court had declined to admit Harrington as an expert in child counseling. The order noted that Harrington had never testified in court, and therefore, had never been admitted as an expert in any court proceeding concerning child custody, but did not state that was the reason it had declined to admit her as an expert. In the court's order denying Father's motion to alter or amend, the court further addressed the issue:

As far as the counselor is concerned whom [Father] maintains should have been admitted as an expert, although she had extensive experience in counseling children, such experience does not necessarily qualify her as an expert in child custody matters. It was clear to this Court that [Father] had exercised undue influence over the child. Even if she had been qualified as an expert witness, her opinion was that it was the desire of [Daughter] to be with [Father] and that [Daughter] would have a more difficult time in adjusting if [Mother] were granted custody. Such opinion would not have changed my ruling as I had to consider numerous factors.... The Court did consider the counselor's testimony as a whole and noted that the child exhibited better coping skills at the end of the counseling sessions.

We find the family court did not abuse its discretion in refusing to qualify Harrington as an expert in child counseling. Furthermore, we find Father was not prejudiced by the court's decision because the court allowed Harrington to testify and considered her testimony in making its decision.

Second, Father argues the family court erred in prohibiting the introduction of statements made by Daughter to Harrington. We disagree.

Father sought to have the statements made by Daughter to Harrington during...