Peay v. Peay
| Citation | 194 S.E.2d 392,260 S.C. 108 |
| Decision Date | 08 February 1973 |
| Docket Number | No. 19564,19564 |
| Parties | John W. PEAY, Respondent, v. Brenda L. PEAY, Appellant. |
| Court | South Carolina Supreme Court |
McDow & McDow, Rock Hill, for appellant.
Samuel B. Mendenhall, Rock Hill, for respondent.
The respondent, father, brought this action in the Family Court of York County against the appellant, mother, seeking custody of their five year old son. The judge granted custody to the father. The mother appeals.
On this appeal, we must determine whether the judge correctly found that the best interest of the child is served by granting custody to the father. This action is one in equity and was tried by the judge without a reference. Therefore, this Court will review the entire record for the purpose of determining the facts in accordance with our own view of whether the evidence preponderates to the effect that the best interest of the child is served by the decision made by the lower court. Moorhead v. Scott, S.C., 193 S.E.2d 510 (filed Dec. 13, 1972).
This couple was married in 1965. It is beyond dispute that considerable difficulties have existed since that time in their marital life. The judge has not found that either parent is an unfit person to have custody of the child and we will not so find on the basis of the record before us.
On June 30, 1971, the mother and father entered into an agreement which gave to the father custody and control of the child. Since that time, the child has been returned to the mother under disputed circumstances.
The record reflects that the mother has been keeping company with a man other than her husband under circumstances described by counsel as 'reasonably discreet' and for a limited period of time. The evidence is susceptible of the inference that the father experiences fits of temper and has been at times less than fully considerate of the mother.
Both parties live in York County. The mother commutes to a job in Charlotte, North Carolina. The father is employed at a local plant and works on rotating shifts. Certainly, neither parent is ideally situated to care for the child. It would appear that the judge selected the father for custody as being the more desirable of two difficult choices.
It would serve no good purpose to further detail the many incidents which have caused the separation of this couple.
This Court has held in numerous cases that the welfare of the child and what is in his best interest is the primary, paramount and controlling consideration of the Court in all child custody controversies. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943); Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764 (1957); Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376 (1969). In many cases, this Court has applied what we refer to as the tender years doctrine, under which the Court has often times found that children of tender years should be with the mother instead of the father. It is not always controlling. Ford v. Ford, 242 S.C. 344, 130 S.E.2d 916 (1963). We have given consideration to it and conclude it should not be applied in this case.
In cases of this type, the trial judge, who sees the witnesses, and who must nurse the case over the years in case of additional conflicts, should be given a broad discretion. We cannot say that he erred in reaching the conclusion that the evidence preponderates in favor of the father.
The facts in this case are close, as were the facts in the case of Mincey v. Mincey, 224 S.C. 520, 80 S.E.2d 123 (1954). In that child custody case, the Court was concerned with but did not feel justified in reversing the lower court. Inasmuch as the case was borderline, this Court said to the litigants and to the lower court:
'If the procedure now approved should be inimical to their interest, application may be made to the Court for any necessary change.'
At the time the record before us was made up in the family court, the father had not had an opportunity to demonsrate for any considerable period of time his ability to properly care for the child. The trial judge was required to make his determination on the basis of such facts as were presented to him. Notwithstanding our rule that custody will not be changed without a showing of a change of conditions, to which rule we adhere, the lower court may upon application determine if the best interest of the child is being served.
On this appeal, the mother contends that the judge of the family court ignored Rule 13 of that court, which...
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Collins v. Collins
...who observes the witnesses and is in a better position to judge their demeanor and veracity, is given broad discretion. Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973)." McAlister v. Patterson, 278 S.C. 481, 483, 299 S.E.2d 322, 323 (1982). In this case, we find no abuse of discretion in ......
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McAlister v. Patterson
...who observes the witnesses and is in a better position to judge their demeanor and veracity, is given broad discretion. Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973). We agree with the trial judge that removal of the child from his familiar surroundings to a place where he would be amon......
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...of the court in all child custody controversies. Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943). The position advanced by the mother is that the "best interest of the child" prin......
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Sanders v. Emery, 2275
...of the child is always the primary consideration in this type of proceeding. Moore, 300 S.C. 75, 386 S.E.2d 456; Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943). Where the issue of custody arises with regard to third persons, there is a reb......