Moeller v. Moeller

• Decision Date: 08 September 2011
• Docket Number: No. 4861.,4861.
• Citation: Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (S.C. App. 2011)
• Court: South Carolina Court of Appeals
• Parties: Marcus MOELLER, Respondent,v.Anna Brooke MOELLER, Appellant.

394 S.C. 365

714 S.E.2d 898

Marcus MOELLER, Respondent,

v.Anna Brooke MOELLER, Appellant.

No. 4861.

Court of Appeals of South Carolina.

Heard June 8, 2011.Decided Aug. 10, 2011.Rehearing Denied Sept. 8, 2011.

William Norman Epps, III, of Anderson, for Appellant.Christopher Lance Sheek, of Greenwood, for Respondent.Adam S. Bacot, of Greenwood, for Guardian ad Litem.PER CURIAM.

AppellantAnna Brooke Moeller(Mother) seeks review of the family court's award of child custody to RespondentMarcus Moeller(Father).Mother argues the family court placed an improper emphasis on her extra-marital affair when there was no evidence this relationship had any detrimental effect on the parties' children.Mother also argues the family court abused its discretion in separating Mother's oldest child from the parties' two younger children because the separation was against the children's best interests.We reverse and remand this matter to the family court for a custody exchange.

FACTS/PROCEDURAL HISTORY

When the parties married in 2002, Mother had a ten-month-old daughter from a prior relationship.At that time, the parties lived in Mother's home in Anderson while Mother attended college.On March 8, 2003, a daughter was born of the marriage.

During the marriage, Father had difficulty maintaining stable employment.Mother worked at various jobs while she was in college and used her student loan proceeds to support the family.In August 2005, Mother began her teaching career in Anderson.In September 2005, Father began working in Greenwood.Mother agreed to move to Greenwood to reduce Father's commute time.On September 27, 2005, another daughter was born of the marriage.

The parties presented conflicting versions of their marital troubles and the timing of their separation.Mother complained about Father's tendency to cause their daughters to be late for school when he was assigned responsibility for their transportation.Mother also complained about Father's alleged drug use and emotional abuse of her throughout the marriage.On the other hand, Father complained about Mother's alleged uneven temperament and her emotional outbursts in front of the children.

According to Mother, she told Father in May 2007 that she wanted to leave the marital home.However, she did not reveal her plan to file for a divorce because she was afraid of his reaction.According to Father, the parties had discussed moving the whole family to Anderson because Mother was unhappy in Greenwood.Father believed their plan was for him to keep his job in Greenwood and commute from Anderson.

In July 2007, Mother met Russell Mullinax(Mullinax), with whom she later became romantically involved.In August 2007, Mother took the children, left the marital home in Greenwood, and moved into an apartment in Anderson.On August 2, 2007, Father learned Mother had not planned on him joining her in Anderson.When Father asked Mother for a key to the apartment she was leasing, she informed him that she considered them to be separated.She also suggested some time apart to see if it would help their relationship.

Approximately one week later, Father became suspicious Mother was having an affair.Mother had left an old cell phone at the marital home, and Father noticed that the phone continued to receive text messages.Several sexually explicit text messages were being delivered from the phone number belonging to Mullinax.¹On August 27, 2007, Father filed a complaint seeking a divorce on the ground of adultery and custody of the parties' two daughters.²The family court granted temporary custody of the parties' daughters to Mother.

During the following several months, Mullinax bought a house in Anderson County, and Mother entered into an agreement with him to lease the house.³While the children were living in this home with Mother, they made several friends in school and in their neighborhood, and they became involved in multiple extracurricular activities, such as piano lessons and gymnastics.Mother was very involved with the children's school activities and extracurricular activities, and she stayed in contact with the children's teachers at least once a week.All three of Mother's children were very attached to one another.Father struggled financially during this time.As a result, the marital home became the subject of foreclosure proceedings.

At the final hearing, the guardian ad litem (GAL) indicated that the children's relationship with Mullinax was good.She also testified concerning her suspicions that Mother allowed Mullinax to stay overnight with her while the children were present.⁴The GAL hired a private investigator to conduct surveillance of Mother's residence during the night of April 23, 2009, through the following morning.The GAL also presented the private investigator as a witness.⁵

The GAL also testified that Mother was not forthcoming as to her relationship with Mullinax.The GAL stated it appeared that the children had been coached by Mother to say that Mullinax was not staying overnight at their home.The GAL expressed concern that Mother and her witnesses had gone to great lengths to deceive her about Mother's relationship with Mullinax and his presence around the children.The GAL indicated that Mother's behavior in this regard could negatively impact the children and their values.Although the GAL expressed concern over separating the children, she declined to make a recommendation as to child custody based on this factor alone.

The family court issued a final decree granting the parties a divorce on the ground of one year's separation and awarding custody of both children born of the marriage to Father.In its order, the family court found that the great lengths taken by Mother to deceive the GAL, the family court, and others about her relationship with Mullinax was “troublesome not only as to her credibility but also as to her lack of judgment, lack of mature reasoning, and ability to contrive and scheme for her own purposes.”The family court expressed concern that the children were not “entirely open with the Guardian, as some of their responses appeared to have been given to protect the mother or coaxed by her.”The family court also found that Mother“knowingly placed the children in the middle of her relationship with [Mullinax] and, by doing so, acted contrary to their best interests.”

The family court denied Mother's motion for reconsideration.This appeal followed.

ISSUES ON APPEAL

1.Did the family court place an improper emphasis on Mother's relationship with Mullinax when there was no evidence that this relationship had any detrimental effect on the parties' children?

2.Did the family court err in separating Mother's oldest child from the parties' two younger children when the separation was against the best interests of the children?

STANDARD OF REVIEW

This court may review both factual and legal issues de novo.Simmons v. Simmons,392 S.C. 412, 414, 709 S.E.2d 666, 667(2011);see alsoNasser–Moghaddassi v. Moghaddassi,364 S.C. 182, 189, 612 S.E.2d 707, 711(Ct.App.2005)(“In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence.”).However, the court's broad scope of review does not relieve the appellant of the burden of proving to this court that the family court committed error.Id. at 190, 612 S.E.2d at 711;see alsoLewis v. Lewis,392 S.C. 381, 392, 709 S.E.2d 650, 655(2011)(holding that the family court's factual findings will be affirmed unless the appellant satisfies this court that the preponderance of the evidence is against those findings).

LAW/ANALYSIS

I.Mother's conduct

Mother argues the family court placed an inappropriate emphasis on her relationship with Mullinax because there was no evidence the relationship had any detrimental effect on the parties' children.We agree.

In all child custody controversies, the controlling considerations are the child's welfare and best interests.Cook v. Cobb,271 S.C. 136, 140, 245 S.E.2d 612, 614(1978).In determining custody, the family court“must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child.”Woodall v. Woodall,322 S.C. 7, 11, 471 S.E.2d 154, 157(1996)(emphasis added).Because all relevant factors must be taken into consideration, the family court should also review the “psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects” of the child's life.Id.In other words, the totality of circumstances unique to each particular case “constitutes the only scale upon which the ultimate decision can be weighed.”Parris v. Parris,319 S.C. 308, 310, 460 S.E.2d 571, 572(1995).

Here, rather than considering the totality of the circumstances unique to this case, the family court narrowly focused on (1) the GAL's speculation that Mother's perceived dishonesty would inevitably result in the children developing the same trait; and (2) the GAL's and Father's characterization of Mother as having an uneven temperament and overly emotional responses to everyday situations.Initially, we view as mere conjecture the GAL's testimony that she suspected the children had been coached by Mother to say Mullinax did not stay overnight at their house.

Even if the family court's perception of Mother's character traits is accurate, the record does not show that these traits have substantially affected the children's welfare.⁶Therefore, they cannot, by themselves, serve as a basis for denying Mother custody of her children.SeeDavenport v. Davenport,265 S.C. 524, 527, 220 S.E.2d 228, 230(1975)(holding that in a child custody dispute, a parent's morality is limited in its force to what relevancy it has to the welfare of the child);see alsoClear v. Clear,331 S.C. 186, 190, 500 S.E.2d 790, 792(Ct.App.1998)(stating that the record contained no evidence that a...