Nash v. Byrd
| Citation | 298 S.C. 530,381 S.E.2d 913 |
| Decision Date | 20 March 1989 |
| Docket Number | No. 1356,1356 |
| Parties | William A. NASH, Appellant, v. Shirley R. BYRD, Respondent. . Heard |
| Court | Court of Appeals of South Carolina |
H. Michael Spivey, Mauldin, for appellant.
Robert M. Rosenfled, Greenville, for respondent.
Fletcher C. Mann, Jr., Greenville, guardian ad litem.
This is a dispute between divorced parents over the father's visitation rights with his son. The family court conditionally suspended the father's visitation. He appeals. We affirm and remand.
In December 1982, William A. Nash and Shirley R. Byrd were granted a divorce. The mother was given custody of the couple's minor son, Jason. The father's extensive visitation privileges included alternate weekends, every Wednesday afternoon, one week before or after Christmas, Thanksgiving Day on alternate years, Father's Day, Nash's birthday, and a portion of Jason's birthday. The father had visitation privileges for the entire summer with the exception of alternate weekends and a three week period chosen by the mother.
After the divorce, Nash engaged in a course of conduct calculated to harass Byrd and gain information to support a change of custody. He made derogatory remarks towards Byrd or about her in Jason's presence. He parked his car in vicinity of the Byrd residence and lurked about. Blowing his horn and maneuvering around the Byrd's vehicle, he followed Byrd and Jason to work or school. This conduct contributed substantially towards Jason's feelings of anxiety.
During the first summer visitation, Jason developed gastrointestinal problems. In September 1983, Jason was referred to Dr. David R. Price, a clinical psychologist. Dr. Price determined Jason had anxiety resulting from: (1) a fear that his father was watching his apartment and (2) difficulties with his father and his father's family.
In May 1984, Byrd petitioned for a restraining order and modification of visitation. The court eliminated Nash's Wednesday afternoon visitation privileges and set forth specific visitation procedures. The order restrained Nash from coming around or about Byrd's residence and Jason's school. The order also recognized that Jason needed continued counseling and encouraged both parties to consider the recommendations of Dr. Price.
After the 1984 order, Nash's family became involved in the matter. The family questioned Jason about alleged acts of abuse or neglect. They reported allegations of neglect to the Department of Social Services. Nash's mother assisted Jason in sending two letters to the court which expressed dissatisfaction with his mother and alleged neglect and abuse. Nash's brother prowled about Jason's school. He followed Byrd's car and maneuvered about in a reckless manner. During the second summer visitation, Jason's stomach problems returned, although he had no similar problems when he was residing with the Byrds.
Again, Byrd brought an action for relief. In an order dated February 28, 1985, the judge noted that (1) during the visits the Nash family discussed abuse or neglect with Jason, (2) Jason felt compelled to make false reports of abuse and neglect, and (3) because Jason knew the statements were false, the visits led to feelings of anxiety and stress. Further, the court noted that the Nash's mother and brother had done many of the very things Nash had been enjoined from doing. The court stated that if they had been made parties to the action, "they certainly would have been required to answer for any such actions which were undertaken to frustrate or defeat the intent of the Orders of this Court." The court modified the summer visitation from all summer to alternative weekends and three five day periods which had to be at least seven days apart.
After the 1985 order, Jason reluctantly continued to visit with Nash during the regularly scheduled visitation periods. On a number of occasions, Nash's mother and brother disparaged Byrd in Jason's presence and used various means to intimidate the child. Without advance warning, in November 1985, Jason refused to go on visitations with his father.
Byrd immediately contacted Dr. Price and her attorney. Attempting to avoid litigation, they contacted Nash's attorney and exchanged a number of letters. Dr. Price advised Byrd that if Jason were forced to visit with Nash, he would likely suffer a recurrence of his former physical and emotional problems. Byrd and Dr. Price offered to work with Nash in resolving these problems. However, Nash refused to do so and simply demanded his visitation rights. A ritual soon developed. Byrd would get Jason dressed for visitation. Nash would arrive for the scheduled visit. Jason would refuse to get in the car.
In June 1986, Nash brought an action to have Byrd held in contempt of court for her failure to allow Jason to visit with him. She counterclaimed requesting an increase in child support and suspension of visitation privileges until Nash agreed to participate in counseling with Jason. In September 1986, a guardian ad litem was appointed for Jason. In an attempt to rebut the expected testimony of Dr. Price, Nash requested an independent psychiatric evaluation of Jason. During February and March 1987, Dr. Lecroy made an independent evaluation of Jason.
Meanwhile, Nash's father was severely ill. Nash wanted to pick up Jason and take him to the hospital. Jason did not want to go with Nash. Nash called Jason and attempted to coerce him into doing it his way or not at all. Unfortunately for Nash, Byrd was taping the conversation. After the intervention of the guardian ad litem, Jason visited with his grandfather.
On May 11, 1987, the court held an eleven hour hearing. The parties were represented by counsel and the guardian ad litem took an active role. The court admitted the tape recording of the phone call between Jason and Nash and numerous photographs of Nash's family driving in the areas around the Byrd's residence.
In an order dated July 13, 1987, the court noted that the case history showed a systematic reduction of visitation privileges due to Nash's conduct towards his son. The court found that Byrd had taken reasonable steps to facilitate visitation and refused to find her in contempt. The court revoked all visitation privileges until Nash underwent a counseling program to reestablish his relationship with his son. The order required Nash to pay $1000.00 towards Byrd's attorney's fees, $1500.00 for the guardian ad litem fee, and $625.00 for Dr. Price's fees.
Nash appeals the judge's failure to find Byrd in contempt, the admission of the recorded telephone conversation, the suspension of visitation privileges, the award of attorney's fees, and the award of the guardian ad litem fee.
Nash asserts that the trial judge erred (1) in finding that the problems with visitation were caused by Nash's conduct, (2) in finding that Byrd had taken all reasonable measures to resolve the visitation problems, and (3) in failing to find Byrd in contempt of court.
A determination of contempt is a serious matter and should be imposed sparingly. Haselwood v. Sullivan, 283 S.C. 29, 320 S.E.2d 499 (Ct.App.1984). The question whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support. Id.
We find no error in the judge's determination that the problems were caused by Nash's conduct and that Byrd took all reasonable steps to resolve the problems. The record is replete with evidence as to the father's fault. For example, during visitations, Nash did not protect Jason from harassment by Nash's mother and brother. Also, it was Nash who precipitated the suspension of visitation by telling Jason that, if he did not want to, he did not have to visit anymore.
Likewise, the record shows that Byrd took reasonable steps to resolve the visitation problem. When Jason refused to visit, she told him that he had no choice and discussed the matter with Dr. Price. The correspondence from Byrd, Dr. Price, and Byrd's attorney manifests her desire to resolve the problem. She even offered to pay the initial fee, if Nash would visit with her and Dr. Price to discuss the problem.
Given these facts, the judge did not err in refusing to find Byrd in contempt of court.
Next, Nash asserts the judge erred in admitting into evidence the tape recording of his and Jason's conversation. He asserts that the conversation was taped in violation of Federal law and, as such, was inadmissible. See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. sections 2510 to 2520 (1982).
Section 2515 provides:
Whenever any wire or oral communication has been intercepted, no part of the contents of such...
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Shirley v. Shirley
...within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. Nash v. Byrd, 298 S.C. 530, 381 S.E.2d 913 (Ct.App.1989). Although the mother ultimately obtained beneficial results in this action, this is only one factor we consider when all......
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Glinyanay v. Tobias
...we find the family court did not err in suspending Father's visitation. The situation here resembles that of Nash v. Byrd , 298 S.C. 530, 537, 381 S.E.2d 913, 917 (Ct. App. 1989), where we affirmed the suspension of visitation until the Father underwent counseling designed to repair his rel......
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Noojin v. Noojin
...their children in contravention of family court orders).We find the instant case is distinguishable from Nash v. Byrd , 298 S.C. 530, 534–35, 381 S.E.2d 913, 915–16 (Ct. App. 1989), in which this court affirmed the family court's declination to hold a mother in contempt. In Nash, the mother......
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Glinyanay v. Tobias
...Accordingly, we find the family court did not err 8 in suspending Father's visitation. The situation here resembles that of Nash v. Byrd, 298 S.C. 530, 537, 381 S.E.2d 913, 917 (Ct. App. 1989), where we affirmed the suspension of visitation until the Father underwent counseling designed to ......