Kucera v. Moss
| Decision Date | 04 April 2018 |
| Docket Number | 2018-UP-140 |
| Court | Court of Appeals of South Carolina |
| Parties | Peter Kucera, Respondent, v. Ashley Moss, Appellant. Appellate Case No. 2015-001665 |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Submitted February 9, 2018
Appeal From Greenville County Alex Kinlaw, Jr., Family Court Judge
Gwendolynn Wamble Barrett, of Barret Mackenzie, LLC, of Greenville, for Appellant.
Peter Kucera, of Greenville, pro se.
Ashley Moss appeals the ruling of the family court awarding her and Peter Kucera joint custody of their minor child. Moss argues there was not a substantial change in circumstances warranting a change in custody. Additionally, Moss argues joint custody and the family court's award of expanded visitation to Kucera are not in their child's best interests.[1] We reverse in part, affirm in part, and remand.
Moss and Kucera met in Colorado and were involved in a romantic relationship resulting in the birth of a daughter (Child) in January 2005. Moss and Kucera never married. The relationship ended, Moss relocated to Greenville, South Carolina, and Kucera soon followed.
In December 2006, Moss filed a complaint seeking full custody of Child with Kucera having standard visitation. The court entered a Final Custody Order in November 2008 granting inter alia, Moss full custody and requiring Kucera to pay child support. In addition, Kucera was given the following visitation schedule: every other weekend, from Friday at 4:00 p.m. to until 6:00 p.m. Sunday; an overnight on alternating Thursdays; three weeks during the summer months; alternate holidays; and Father's Day.
Subsequently Moss became romantically involved with Mark Ritchie. Moss became pregnant, and she and Ritchie got engaged. Moss Ritchie, and Child moved in together in January 2011, and Moss and Ritchie were married in May of that year. Moss and Ritchie's son was born in June 2011.
The parties operated under the 2008 Final Custody Order until April 2011, when Kucera filed a complaint seeking full custody based on a substantial change in circumstances. The court issued a temporary order in November 2011, maintaining the custody and visitation arrangement in the 2008 Final Custody Order. Additionally, Kucera's child support obligation was recalculated based on his unemployment, a Guardian ad Litem was appointed to represent Child, and each party was ordered to undergo a psychological evaluation.
The trial commenced June 25, 2013, and continued through June 28. On October 10, 2013, the court declared a mistrial because the parties were unable to finish in the time allotted. However, in November 2013, the court sua sponte reconsidered its decision to order a mistrial and ordered a continuance requiring the parties to meet certain obligations, by no specific date, before the final hearing would recommence. Without any action having been taken by the parties, the court held a status conference in April 2014. The following month, the court found Moss had met her obligations as set forth in the November 2013 Continuance Order but Kucera had not. The court ordered Kucera to meet his obligations or be declared in contempt. The trial finally concluded in November 2014.
The court issued its Final Custody Order in March 2015, granting Moss and Kucera joint custody of Child and expanding Kucera's visitation by an extra overnight visit each week-Kucera was to return Child to school on Monday mornings following his weekend visitation rather than return Child to Moss on Sunday. In addition, the court recalculated child support, held Kucera in contempt for various violations of the 2008 Final Custody Order, and awarded Moss attorney's fees relating to her meritorious contempt actions. The order left the remaining provisions of the 2008 Final Custody Order in place. Moss filed a motion to reconsider alleging, among other things, the court erred in granting joint custody and in failing to order supervised and restricted visitation for Kucera. The court denied the motion to reconsider and this appeal followed.
1. Was there a substantial change in circumstances warranting a change in custody?
2. Is joint custody and Kucera's expanded visitation in Child's best interests?
STANDARD OF REVIEW
"[T]he proper standard of review in family court matters is de novo . . . ." Stoney v. Stoney, 421 S.C. 528, 531, 809 S.E.2d 59, 60 (2017); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In a de novo review, the appellate court is free to make its own findings of fact but must remember the family court was in a better position to make credibility determinations. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52. "Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers, 420 S.C. 411, 416, 803 S.E.2d 469, 471 (Ct. App. 2017).
Moss had full custody of Child under the 2008 Final Custody Order. The 2015 Final Custody Order awarded Moss and Kucera joint custody of Child, with Moss having primary placement. Moss argues there has not been a substantial change in circumstances warranting a change in 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.'" Housand v. Housand, 333 S.C. 397, 400, 509 S.E.2d 827, 829 (Ct. App. 1998) (quoting Allison v. Eudy, 330 S.C. 427, 429, 499 S.E.2d 227, 228 (Ct. App. 1998)). "A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child[] [will] be served by the change." Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004) (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979)).
The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and welfare of the child. Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.
Id. "When determining whether a change of circumstance[s] has been established in a custody case, the issue is whether the evidence, viewed as a whole, establishes that the circumstances of the parties have changed enough that the best interests of the children will be served by changing custody." Housand, 333 S.C. at 405 n.5, 509 S.E.2d at 832 n.5; see also Hollar v. Hollar, 342 S.C. 463, 473, 536 S.E.2d 883, 888 (Ct. App. 2000) .
The family court awarded a change in custody-granting joint custody, with Moss having primary placement. However, the family court's order does not state what factual findings support its conclusion to award a change in custody. The only reasoning the court gave was that there was nothing in the record indicating Kucera did not love Child or that Kucera was a danger to Child. We find the family court's reasoning does not support a finding that the circumstances of the parties have changed. In fact, the family court never addressed the issues Kucera alleged constituted a change in circumstances. Therefore, we find the family court erred in awarding a change in custody.
Regardless, we will address the merits of Kucera's original allegations because the record is well developed, and the issue affects the rights of a minor. See Thomson v. Thomson, 377 S.C. 613, 623, 661 S.E.2d 130, 135 (Ct. App. 2008) ; see also Galloway v. Galloway, 249 S.C. 157, 160, 153 S.E.2d 326, 327 (1967) ("The duty to protect the rights of minors has precedence over procedural rules otherwise limiting the scope of review[, ] and matters affecting the rights of minors can be considered by this court [e]x mero motu."); see, e.g., Tillman v. Oakes, 398 S.C. 245, 250-52, 728 S.E.2d 45, 48-49 (Ct. App. 2012) ().
Kucera's complaint alleged the following changes in circumstances were substantial and warranted a change in custody: (1) Moss was living with her boyfriend and expecting a child; (2) Moss took Child to a psychologist without informing Kucera; (3) Moss and Child stayed in Atlanta overnight without informing Kucera; and (4) Moss is adamant about strict compliance with the 2008 Final Custody Order. We address each allegation in turn.
The 2008 Final Custody Order prevented any party from having Child overnight in the presence of an adult party of the opposite sex to whom they were not related to by blood or...
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