Nasser-Moghaddassi v. Moghaddassi

• Decision Date: 31 January 2005
• Docket Number: No. 3932.,3932.
• Citation: 612 S.E.2d 707,364 S.C. 182
• Court: South Carolina Supreme Court
• Parties: Majid NASSER-MOGHADDASSI, Respondent, v. Farideh Gerami MOGHADDASSI, Appellant.

612 S.E.2d 707

364 S.C. 182

Majid NASSER-MOGHADDASSI, Respondent, v.Farideh Gerami MOGHADDASSI, Appellant.

No. 3932.

Court of Appeals of South Carolina.

Heard January 11, 2005.

Decided January 31, 2005.

Rehearing Denied May 19, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeffrey Falkner Wilkes, of Greenville, for Appellant.

Kimberly Fisher Dunham, of Greenville, for Respondent.

ANDERSON, J.

In this domestic relations action, Mrs. Farideh Gerami Moghaddassi(Mother) appeals the family court order awarding custody of the couple's children to Mr. Majid Nasser-Moghaddassi(Father).Additionally, Mother appeals the distribution of the marital estate and the award of the marital residence to Father.We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The Moghaddassis, who were married in February of 1983, have three minor children: a daughter who was sixteen at the time of the final hearing, a son who was thirteen, and another daughter who was seven.Mother and Father are both natives of Iran and were both educated in England.They have been in the United States since 1986, when Father, an engineer, found employment here.

According to Father's trial testimony, the parties argued frequently.When their oldest daughter was nearing her teenage years, Father and Mother's arguments progressed into physical altercations.Father recounted one instance where Mother became upset because their daughter and her friends were in a room without adult supervision, while Father and Mother were in another part of the house:

My wife .... she started pushing me around that, You're not doing anything as a father.She's up to no good in there and there's a boy in the room.

I said, Hey, they are all teenagers, they are friends.But she pushed me around, pushed me around and got physical with me and she hit me with a — a children's recorder on the floor she picked up and she hit me in the wrist.And it was very painful.I went down on my knees and she hit me in the head....

As a result of the incident, Mother was charged with criminal domestic violence and spent several days in jail.Father related another episode: "we had a little argument and that was — when that was over, I was sitting and working with the computer and suddenly she approached me from the back and poured hot coffee on my head."He further averred that when angry, Mother would scratch his face, and that she has broken his eyeglasses on five occasions.Frequently, the children were present during these encounters.

The relationships between the children and their mother are strained.Father stated that his wife would call their sixteen-year-old daughter "bitch, prostitute, ... whore" in front of her friends.Additionally, Father testified to seeing his wife abusing their daughter, "[p]hysically pulling her hair, pushing her around."During the year preceding trial the oldest daughter refused to see her mother.According to Father, Mother mistreated the younger children as well, including "slapping around, pushing" their son.

A Guardian ad Litem (GAL or guardian) was appointed to represent the interests of the three minor children.She prepared a report which discusses her interviews with, among other persons, the parties' children.The report describes the children's accounts of Mother's behavior:

The oldest child .... relayed to me that her parents have had lots of fights.Her mother always insults her father.She also related that her mother always instigates and starts the fights with her father....She describes her mother as yelling and cursing....She also related to me that her mother has continually called her a whore, has hit her and her father on many occasions.

... She does not want to see her mother at all.

...[T]he thirteen year old son .... relayed to me that his mother always starts the fights.That he has had to call the Police two times.He related how recently his mother hit his father with the broom and was clawing at him....He described his mother to me as "mom is abusive".He described an incident where the mother hit him with a metal pole and pushed him onto some stairs....

I then spoke with ... the six year old....She said her mother fus[s]ed a lot at her dad and broke his glasses and hit him a lot with the broom, a flashlight and rock....She told me that she was scared of her mother, she hits everybody in the family....

Father initiated divorce proceedings.The family court: (1) granted a divorce on one year's separation; (2) awarded custody of the three minor children to Father; (3) ordered Father to pay $1,300 per month in permanent, periodic alimony; (4) apportioned the marital estate 60% to Father, 40% to Mother; and (5) distributed the marital residence to Father as part of his share of the marital estate.The issues before this Court relate to custody of the children and division of the marital assets.

STANDARD OF REVIEW

In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence.Emery v. Smith,361 S.C. 207, 603 S.E.2d 598(Ct.App.2004)(citingRutherford v. Rutherford,307 S.C. 199, 414 S.E.2d 157(1992)).However, this broad scope of review does not require us to disregard the family court's findings.Bowers v. Bowers,349 S.C. 85, 561 S.E.2d 610(Ct.App.2002);Badeaux v. Davis,337 S.C. 195, 522 S.E.2d 835(Ct.App.1999).Nor must we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.Cherry v. Thomasson,276 S.C. 524, 280 S.E.2d 541(1981);Murdock v. Murdock,338 S.C. 322, 526 S.E.2d 241(Ct.App.1999);see alsoDorchester County Dep't of Soc. Servs. v. Miller,324 S.C. 445, 477 S.E.2d 476(Ct.App.1996)(ruling that because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to the family court's findings where matters of credibility are involved).An appellate court"should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court."Woodall v. Woodall,322 S.C. 7, 10, 471 S.E.2d 154, 157(1996).Our broad scope of review does not relieve appellant of her burden to convince this Court the family court committed error.Skinner v. King,272 S.C. 520, 522-23, 252 S.E.2d 891, 892(1979).

ISSUES

I.Was the Guardian ad Litem's recommendation the product of an independent, balanced, and impartial investigation, well documented and supported by the facts?

II.Did the family court err in ordering Mother to pay a portion of the Guardian ad Litem fees?

III.Was the distribution of the marital estate fair and equitable in light of the facts of this case?

IV.Did the family court err in awarding Father title to the marital residence?

V.Does the evidence support the family court's denial of an award of personal property to Mother?

VI.Did the family court err by not awarding Mother attorney's fees and costs?

LAW/ANALYSIS

Mother asserts six exceptions to the family court order.We disagree with Mother's contentions and affirm the family court's decision.

I.The GAL's Recommendation

Mother first argues the GAL's recommendation was not the product of an independent, balanced, and impartial investigation.We disagree.

The paramount and controlling factor in every custody dispute is the best interests of the children.Shirley v. Shirley,342 S.C. 324, 330, 536 S.E.2d 427, 430(Ct.App.2000);Paparella v. Paparella,340 S.C. 186, 189, 531 S.E.2d 297, 299(Ct.App.2000).In Shirley,we articulated the South Carolina rule governing custody cases:

In all custody controversies, the controlling considerations are the child's welfare and best interests.In reaching a determination as to custody, the family court should consider how the custody decision will impact all areas of the child's life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects.Additionally, the court must assess each party's character, fitness, and attitude as they impact the child.

342 S.C. at 330, 536 S.E.2d at 430(citations omitted).When determining the best interests of a child,

the family court should consider several factors, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties(including the guardian, expert witnesses, and the children); and the age, health, and sex of the children.Rather than merely adopting the recommendation of the guardian, the court, by its own review of all the evidence, should consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child as well as all psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of the child's life.

Pirayesh v. Pirayesh,359 S.C. 284, 296, 596 S.E.2d 505, 512(Ct.App.2004)(emphasis added)(citations omitted).

In the landmark opinion, Patel v. Patel,347 S.C. 281, 555 S.E.2d 386(2001), our supreme court reviewed the historical development of the role of the GAL in South Carolina:

A guardian ad litem, as the later phrase suggests, is a guardian for litigation.Traditionally, GALs were lawyers appointed by the court to appear in a lawsuit on behalf of a minor or incompetent.Over time, the role of the guardian was defined by statute as well as by common law.Lay persons as well as lawyers were appointed by the court in cases to protect those the court or legislature deemed could not protect themselves....

The GAL functions as a representative of the court, appointed to assist the court in making its determination of custody by advocating for the best interest of the children and providing the court with an objective view.Fleming v. Asbill,326 S.C. 49, 483 S.E.2d 751(1997);Townsend v. Townsend,323 S.C. 309, 474 S.E.2d 424(1996).Standard setting...