Housand v. Housand, 2911.
| Decision Date | 14 December 1998 |
| Docket Number | No. 2911.,2911. |
| Citation | 509 S.E.2d 827,333 S.C. 397 |
| Court | South Carolina Court of Appeals |
| Parties | Hoyt McMillan HOUSAND, Jr., Appellant, v. April Ann Lang HOUSAND, Respondent. |
Dorothy Mobley Jones, of Lester & Jones, of Columbia; and Cynthia Graham Howe, of Van Osdell, Lester & Howe, of Myrtle Beach, for appellant.
Randall K. Mullins, of Mullins Law Firm, of North Myrtle Beach, for respondent.
Guardian ad Litem: Louis J. Kelaher, of Gundling & Kelaher, of Pawleys Island.
This appeal arises from a child custody dispute between Hoyt McMillan Housand, Jr. (the Father) and April Lang Housand (the Mother). The Father appeals from the family court's denial of his petition for a change of custody from the Mother to him. We reverse and remand.
The Mother and Father married in November 1987. They have three children, all of whom are still minors. In 1992, after the parties separated, the family court held a hearing and issued an order (the Original Order) awarding custody of the children to the Mother. At the time of the initial custody hearing, the oldest child was nearly four years old, and the youngest child was only three months old and was still being breast-fed.
In the Original Order, the family court expressed some concerns about both parties, concluding that "both parents are immature and somewhat irresponsible." The court's concerns about the Father stemmed from his financial instability1 and his then-recent arrest for driving under the influence. The court's concerns about the Mother stemmed from "her numerous traffic violations and her disregard of safety rules while her children are in the car." Notwithstanding these concerns, the family court concluded that both parties were fit to have custody of the children. The court used the "tender years" doctrine as a tie-breaker when awarding custody to the Mother. The award of custody to the Mother was affirmed on appeal by the Supreme Court in a memorandum opinion.
In March 1995, the Father commenced this action seeking custody of the children, alleging that his circumstances had changed for the better while the Mother's circumstances had deteriorated since the Original Order. The family court appointed a guardian ad litem and also appointed a clinical psychologist to evaluate the Father and the Mother. The psychologist concluded that the Mother suffered from a "histrionic personality" disorder and recommended that custody be awarded to the Father. The guardian likewise concluded that custody should be changed to the Father.
The family court denied the Father's request for a change of custody, concluding that the Father failed to establish a material change of circumstance. The court noted, however, that it was a close case and stated that the psychological evaluation of the parties was "compelling" and "may have been material in a previous proceeding." The court ordered the Father to pay more than $16,000 of the Mother's attorney's fees, as well the entire $16,000 balance of the guardian ad litem's fees.
On appeal, the Father asserts the family court erred in finding he failed to show a substantial change of circumstances warranting a change of custody. We agree. To warrant a change of custody, the party seeking the change bears the burden of establishing "a material change of circumstances substantially affecting the child's welfare." Allison v. Eudy, 330 S.C. 427, 429, 499 S.E.2d 227, 228 (Ct.App.1998). "A change of circumstances justifying a change in the custody of the child simply means that sufficient facts have been shown to warrant the conclusion that the best interest of the child will be served by the change." Boykin v. Boykin, 296 S.C. 100, 101, 370 S.E.2d 884, 885 (Ct.App.1988) (citing Skinner v. King, 272 S.C. 520, 523, 252 S.E.2d 891, 892-93 (1979)); accord Stanton v. Stanton, 326 S.C. 566, 484 S.E.2d 875 (Ct.App.1997)
; see also Bolding v. Bolding, 278 S.C. 129, 130, 293 S.E.2d 699, 700 (1982) (). When reviewing the family court's decision, this Court, of course, is free to find facts in accordance with our own view of the preponderance of the evidence. See, e.g., Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994) ().
In this case, the Father presented ample evidence establishing that his situation has improved significantly since the time of the initial custody determination. First, the Father has remarried, and the evidence establishes that the children have a good relationship with their stepmother. See McElveen v. McElveen, 277 S.C. 97, 98-99, 283 S.E.2d 826, 827-28 (1981)
(). Moreover, the financial instability about which the first family court judge was concerned has been resolved. The Father has worked at the same job since the 1992 hearing, earning approximately $30,000 each year, and the Father is now purchasing the house he was previously renting. Thus, the Father is more than capable of providing the children with a proper home. In addition, the DUI charge pending at the time of the initial custody determination was resolved in the Father's favor, and he has had no further legal difficulties.
More important, however, than the factors mentioned above is the Father's demonstrated desire to improve his parenting skills and his relationship with his children. During the divorce proceedings, the family court ordered the parties to attend three counseling sessions with Evelyn Califf, a "family psychotherapist." After the divorce, the Father voluntarily continued his relationship with Califf. Initially, the Father called Califf for advice on dealing with certain disciplinary and other problems that were occurring during his weekend visits with the children. Thereafter, the Father and the children attended two sessions with Califf so that Califf could observe their relationship and advise the Father on how to appropriately handle problems with the children. When the Father's remarriage became a likelihood, the Father and his thenfiancee sought Califf's help in "blending" the families—first the Father and his fiancee, and later the Father, his fiancee, and the children, attended additional sessions with Califf. By all accounts, the sessions have been beneficial. Califf testified that the Father and the children have a very good relationship, and she expressed confidence in the Father's ability to parent the children on a permanent basis.
Thus, the Father has made substantial efforts to improve his relationship with the children and to improve his skills as a parent. These actions convince us that the Father has matured substantially since the Original Order, and that he is a caring and responsible father.
By contrast, the Mother's situation has, at best, remained static, and, at worst, has significantly deteriorated since the initial custody determination. At the time of the initial determination, the Mother had recently moved from Georgetown to Rock Hill and was working as a waitress. She had previously worked in optical sales, earning approximately $30,000 per year. In the Original Order, the court described the parties as a "dual-career" family and treated the Mother's earning capacity as comparable to that of the Father.
Since the time of the Original Order, however, the Mother's employment record has been sporadic. The Mother worked in the waitress position mentioned in the Original Order for approximately five weeks before quitting. She was voluntarily unemployed for approximately a year thereafter. She then worked at a department store for approximately six months. Thereafter, the Mother worked as a sales representative for an optical company making $24,000 per year, but quit after approximately five weeks. The Mother then worked for another optical company with a guaranteed salary of $3,000 per month, but she quit after four months. The Mother followed that position by working as a waitress in four different restaurants. She quit the first of these jobs after six or seven days, was fired from the second after six months, quit the third after approximately five months, and left the last restaurant after three months. The Mother testified that as a waitress, she typically earned approximately $30 per day, although there were occasional days when she earned as much as $100. In between these many jobs, the Mother was frequently unemployed for relatively long periods of time. In fact, after her last job as a waitress, the Mother remained unemployed after the Father commenced this action, at which time she became a substitute teacher, earning $32 per day. The Mother has turned down at least three full-time job offers, one of which would have started at $30,000 per year and would have paid up to $60,000 after three years.
The Mother's refusal to maintain steady employment might be of less concern if the Mother was nevertheless able to provide for the children. Unfortunately, the evidence in this case establishes just the opposite. The Mother lives in a government-subsidized apartment and receives government assistance in paying for the children's day care. The Mother also received food stamps for a period of approximately two years after the initial custody determination. For at least two years, certain companies or charitable organizations "adopted" the children at Christmas, and the children's names were placed on an "Angel tree" at their day-care center. Although the Mother has on occasion received help paying her utility bills, her telephone...
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