Hollar v. Hollar

• Decision Date: 24 July 2000
• Docket Number: No. 3226.,3226.
• Citation: 342 S.C. 463,536 S.E.2d 883
• Parties: Christopher J. HOLLAR, Respondent/Appellant, v. Hilaire M. HOLLAR, Appellant/Respondent.
• Court: South Carolina Court of Appeals

342 S.C. 463

536 S.E.2d 883

Christopher J. HOLLAR, Respondent/Appellant, v. Hilaire M. HOLLAR, Appellant/Respondent.

No. 3226.

Court of Appeals of South Carolina.

Heard June 1, 2000.

Decided July 24, 2000.

Deborah Wright, of Charleston, for appellant/respondent.

Robert N. Rosen, and Alexandra D. Varner, both of Rosen, Goodstein & Hagood, of Charleston, for respondent/appellant.

Guardian ad Litem: Georgia A. Shobe, of Mixon & Shobe, of Moncks Corner.

HEARN, Chief Judge:

These cross-appeals arise from a change of custody dispute between Christopher J. Hollar (Father) and Hilaire M. Hollar (Mother). Mother appeals from several aspects of the family court's order, including: (1) the court's finding Mother could retain primary custody of the parties' child only if she moves from Charlotte, North Carolina to Charleston, South Carolina; (2) the court's failure to increase Father's child support obligation in accordance with the Child Support Guidelines; (3) the court's failure to require Father to pay more than 50% of the guardian ad litem's fee; (4) the court's failure to award Mother attorney fees; and (5) the court's conditional requirement that Mother reimburse Father for temporary attorney fees and costs he paid during the pendency of litigation. Father appeals from the court's failure to award him sole custody of the child and challenges the court's award of guardian ad litem fees. We affirm in part, reverse in part, and modify.

BACKGROUND FACTS & PROCEDURAL HISTORY

Father and Mother married in January 1988. They have one child, Laura, born on February 8, 1989. The parties were living in Charleston, South Carolina when they separated in January 1994. Mother moved to Charlotte, North Carolina in April 1994. The parties agreed for Laura to continue to reside with Father in Charleston for the balance of the school year and to stay with Father throughout the summer. In August 1994, Laura moved to Charlotte with Mother. Father acquiesced in the move.

The parties entered into a settlement agreement on August 28, 1995. The agreement provided, inter alia, that the parties would share "joint legal custody" of Laura, with Mother exercising primary physical custody. The agreement did not specifically set forth a regular visitation schedule, with the exception of the following provision: "The minor child shall reside with the mother during the school year and for the month of July each year, and the minor child will reside with the Father each year from the time school is out until June 30, and for the month of August. The Parent with whom the minor child is NOT residing shall have the right to have the Child with him/her two to three weekends during the months that the minor child is residing with the other party." The agreement further provided Father would pay mother child support of $590.00 per month in accordance with the Child Support Guidelines. The parties were divorced by order of the family court approving and adopting the settlement agreement dated September 9, 1995.

In January 1996, Father petitioned the family court for a rule to show cause why the mother should not be held in contempt for making disparaging remarks about him in Laura's presence and for interfering with his visitation with the child. The family court issued a rule to show cause and held a hearing. By order dated April 6, 1996, the court found the evidence did not support a finding of contempt. However, with the consent of the parties, the court amended the visitation schedule to provide Father with visitation every other weekend.

Father married Cindy Swan (Stepmother) in April 1996. They reside in Mount Pleasant, South Carolina with Stepmother's two minor children from a previous marriage.

Father initiated this action against Mother in February of 1997, seeking sole custody of the child based on changed circumstances, child support, appointment of a guardian ad litem, counseling for the child, and attorney fees and costs. To support his allegation of changed circumstances, Father alleged that since the original custody order, Mother had interfered with his physical and telephone visitation with the child, and left the child in a vehicle without supervision during business meetings. Father also asserted he could offer the child a more stable home due to his remarriage. Mother answered and counterclaimed, denying the father was entitled to a change of custody, and seeking, inter alia, an increase in child support and attorney fees and costs. On March 11, 1997, the family court issued a temporary order continuing custody with Mother.

On September 5, 1997, Father filed a supplemental complaint and motion seeking an emergency change in custody. In support of the motion, he alleged Mother had appeared at the home of Dr. Hollis Tidmore, a former boyfriend, with a pistol, had cut his telephone lines, and had engaged in other bizarre behavior. In a letter to the court, the guardian ad litem stated that based on information available to her at that time, she believed the change of custody should be granted. The family court issued an ex parte order granting the father temporary emergency custody and scheduling a hearing on the matter. After the September 9, 1997 hearing on the matter, the court issued an order granting temporary emergency custody to the paternal grandmother in Charlotte. Three days thereafter, the court returned custody to Mother, finding no clear evidence that the child was at risk with Mother. The court subsequently awarded Mother $4267.50 in temporary attorney fees and costs.

The final hearing was held over the course of seven days in November and December 1997 and January 1998. Prior to trial, Mother's counsel moved to limit the introduction of evidence and testimony to events occurring after the parties' divorce decree and order approving their custody agreement. The court declined to grant the motion, electing to make rulings on the introduction of evidence "on a case by case basis." Ultimately, despite periodic objections by Mother's counsel, both parties introduced an abundance of evidence relating to events which predated not only the divorce, but in numerous instances the marriage itself. While much of this evidence may have been relevant in a de novo custody hearing, the issue before the court in this case was whether a substantial change of circumstances occurred after the date of the divorce decree which warranted a change of custody. The record on appeal is voluminous and contains much testimony which is irrelevant to this action for a change in custody. According, we have limited our consideration to evidence relating to events occurring after the parties' divorce.

Dr. James Allen Linderman began dating Mother in December 1994. They continued to date until April 1996. Linderman and Mother admitted that on one occasion, Linderman spent the night in the mother's home while the child was present. On that occasion, the child woke up in the night and came to Mother's bedroom door, which was closed. Mother heard the child approaching, arose, and took the child back to her own bedroom. The child did not see Linderman. After Mother put the child back to bed, Linderman dressed and left the home.

Mother began dating Dr. Hollis Tidmore in July 1996. In deposition, Tidmore testified he terminated his relationship with Mother in October of 1996, based in part on information he gleaned from conversations with Father and the pastor of the church in Charlotte he and Mother attended.¹ She thereafter began exhibiting bizarre behavior towards him. According to Tidmore, Mother followed him out of church, appeared uninvited at his home and at the hospital where he worked, cut his telephone lines at his home, and appeared at his home on one occasion carrying a pistol. Mother denied committing the alleged acts of harassment.

Father introduced evidence regarding Mother's work history. After moving to Charlotte, Mother was employed at four different jobs. At the time of trial, she had been employed at Sanger Clinic for approximately one year. Mother testified she enjoys her work at Sanger and plans to remain employed there. Moreover, her supervisor at Sanger testified that she was a fine employee and the only problems with her performance have stemmed from the custody case.

By order dated May 11, 1998, the family court awarded sole custody of the child to Father, provided, however, that Mother could elect to retain joint custody if she chose to relocate to Charleston, South Carolina.² In so finding, the court reasoned that the primary change in circumstance was that the child was being negatively affected by the circumstances of the visitation arrangements. Specifically, the court found Mother had interfered with Father's visitation with Laura, the child does not like to travel, and the distance between her and Father is not "absolutely necessary." The court also expressed concern over Mother's job history and her judgment in allowing Linderman to spend the night in her home while the child was present. The court found that, although the child did not see Linderman on that occasion, "the mother's judgment with regard to Dr. Linderman could have harmed the child emotionally if she had seen the mother in bed with her pediatrician." The court all but dismissed the allegations concerning Tidmore, finding only that while the relationship unquestionably ended on poor terms, Mother was not at fault for this outcome. The court also found that Mother has no support system in Charlotte. The court ordered each party to pay his or her own attorney fees, with Mother to reimburse Father for $4267.50 in temporary fees paid during the pendency of litigation. As well, the court ordered each of the parties to pay an equal portion of the guardian ad litem's fee of $21,557.45.

Both Mother and Father filed post-trial motions for reconsideration. With the exception of allowing certain documentary evidence to be introduced into the record,...