Moorhead v. Scott

• Decision Date: 13 December 1972
• Docket Number: No. 19538,19538
• Citation: 259 S.C. 580,193 S.E.2d 510
• Parties: Alexander C. MOORHEAD, Respondent, v. Jean Poole Moorhead SCOTT, Appellant.
• Court: South Carolina Supreme Court

Page 510

193 S.E.2d 510

259 S.C. 580

Alexander C. MOORHEAD, Respondent, v. Jean Poole Moorhead SCOTT, Appellant.

No. 19538.

Supreme Court of South Carolina.

Dec. 13, 1972.

R. Frank Plaxco, Jr., and Earl G. Prevost, of Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Charles B. Richardson, III, of Mann, Foster & Brissey, Greenville, for respondent.

LITTLEJOHN, Justice:

This is an appeal from an order of the Greenville County Family Court changing previously court-ordered custody of three minor children from the defendant mother to the plaintiff father. We are called upon to determine if the evidence presented warranted the ordered change of custody and whether the defendant mother should be awarded attorneys fees.

This proceeding is one is a long, continuing struggle between the parties. The complaint alleges a change in condition as evidenced by:

(1) The desires and wishes of the children to live with the father;

(2) The lack of spiritual guidance on the part of the mother;

(3) The impropriety of the mother in possessing and keeping in her home an unlawful drug (marijuana).

The mother interposes a general denial and alleges that the father is obsessed with the idea of removing custody of the children from her; that the father has coaxed, cajoled, and exhorted the children so they cannot make a rational choice; that the father is mentally unequipped to raise three small children; that the father does not maintain a fit and proper home; and concludes by asking the court for attorneys fees and a $200 per month increase in child support.

A hearing was held in the Greenville County Family Court. The judge filed his order, in which he found there had been a substantial change in conditions surrounding the custody of the three minor children since custody was originally placed with the mother, December 11, 1968. He also found that the welfare of the children would be best served by placing them in the custody of the father. Their ages are 8, 11 and 12.

The mother appeals from this order.

This action is one in equity. The case was tried by the judge without a reference. Therefore, this Court will determine the facts in accordance with our own view of the preponderance or greater weight of the evidence. Tyler v. Guerry 251 S.C. 120, 160 S.E.2d 889 (1968); Forester v. Forester, 226 S.C. 311, 85 S.E.2d 187 (1954).

In a custody dispute, the controlling factor and the paramount consideration is the welfare of the children. Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376 (1969), and cases cited therein; South Carolina Code of Laws §§ 20--115 and 31--51 (1962).

This Court has stated the criteria by which to measure a change in condition in order to warrant a change in custody. The party asking for a change in custody assumes the burden of proof and must show new facts and circumstances that would substantially affect the interests and welfare of the child. Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d 325 (1971); Powell v. Powell, 256 S.C. 111, 181 S.E.2d 13 (1971); Pullen, supra.

When full custody of the three children was granted by the court to the mother on December 11, 1968, a separation and divorce was imminent. The divorce was finalized October 1, 1969. Apparently, the children have lived with the mother in a home provided by her with the aid of child support payments contributed by the father.

On August 12, 1971, the mother married Carey Scott, an aviator employed by a textile plant. After this marriage, the mother and Mr. Scott, together with the three children and a thirteen year old son of Mr. Scott by a previous marriage, have maintained a home near where the father resides. Mr. Scott's first wife was granted custody of their thirteen year old son, but he does not stay with the first Mrs. Scott who resides in Florida. The mother of the three children is regularly employed as a school teacher. A maid comes about the middle of the day and stays with the children until the mother returns home from school. The father was granted, and has taken advantage of liberal visitation privileges. He contends that he has kept the children 43% Of the time. It would appear that the arrangement has worked reasonably satisfactorily.

About three weeks after the mother married Mr. Scott, the father commenced this action. The grounds alleged as a basis for relief sought have been set out hereinabove.

The judge based his conclusion, that a substantial change of conditions had come into being, mainly on the fact that there was evidence of an adjustment problem in the new home life of the mother and Mr. Scott. He also gave weight to the fact that the children now indicate a preference to live with their father, and gave weight to the fact that the mother had brought home from school a marijuana cigarette found in the desk of one of the pupils. In addition, he concluded that the father would provide better spiritual guidance.

We think that a fair analysis of the trial judge's order warrants the conclusion that the principal change of condition relied upon was the adjustment problem of the three children on one hand, and Mr. Scott and his thirteen year old son on the other hand. It would be unusual if some adjustment problems did not come into being under the circumstances of this new marriage. This action was commenced about three weeks after the marriage and the testimony was taken about...