Pullen v. Pullen

• Decision Date: 18 August 1969
• Docket Number: No. 18951,18951
• Citation: Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376 (S.C. 1969)
• Parties: Ex parte Ellis E. PULLEN, Petitioner-Respondent, v. Hazel I. PULLEN, Respondent-Appellant. In re Hazel I. PULLEN, Plaintiff, v. Ellis E. PULLEN, Defendant.
• Court: South Carolina Supreme Court

Page 376

169 S.E.2d 376

253 S.C. 123

Ex parte Ellis E. PULLEN, Petitioner-Respondent, v.Hazel I. PULLEN, Respondent-Appellant.

In re Hazel I. PULLEN, Plaintiff, v.Ellis E. PULLEN, Defendant.

No. 18951.

Supreme Court of South Carolina.

Aug. 18, 1969.

N. Welch Morrisette, Jr., Marchant, Bristow & Bates, Columbia, for appellant.

Frank L. Taylor, D. M. Winter, Jr., Columbia, for respondent.

LITTLEJOHN, Justice.

Hazel I. Pullen, the appellant, hereinafter called the mother, and Ellis E. Pullen, the respondent, hereinafter called the father, were married on May 12, 1956, and of this marriage two children were born, to wit: Anita Pullen, in 1959, and Ellis E. Pullen, Jr., in 1962.This appeal results from an order of the court changing previously ordered custody from the mother to the father.

The parties while still married entered into a support agreement on December 11, 1965, under which the mother was to have custody of the children, and the father was to have visitation rights.On June 2, 1966, the mother instituted a divorce action in the Richland County Court on the ground of desertion, and the court issued its decree on September 2, 1966, granting a divorce and incorporating the support and custody agreement.

Approximately one month after the divorce was granted, the father married his secretary.During the summer visitation of the children with the father in 1967, a petition was brought by him to have permanent custody taken from the mother.After a lengthy hearing the court issued an oral order, since confirmed Nunc pro tunc in writing on August 27, 1968, refusing to transfer custody to the father.

During the next annual summer visitation (1968) of the children with the fatherhe again brought a petition to change the custody of the children from the mother to him.This proceeding was brought in the same court that handled the divorce case in 1966 and the first change of custody petition in 1967.The Honorable John Mason handled the previous matters; this petition came before the Honorable Legare Bates.

The father alleges that the mother moved to Washington, D.C., where she works and is consequently unable to care for the children during the day, that the children wish to live with the father, and also that the mother is not a fit and proper person to continue to have custody of the minor children.

The mother denies the allegations and counterclaims that the father has moved to Chicago, Illinois, that there is no change in the status of the parties, that she is a fit and proper person to have custody of the children, and concludes by asking the court to award her $700.00 per month as child support so she can stop working and stay with the children in compliance with the wishes of the father.

The case was referred to a master and a hearing was held in which there was extensive testimony by the parties and witnesses.The master filed his report on August 28, 1968, in which he found that there was no evidence that the mother was an unfit mother, but in fact found that she was a devoted mother who was entirely capable of caring for the children, both physically and morally.He found that the best interests of the children would be served by the mother's retaining custody.The visitation rights, however, were made more favorable to the father.He further concluded that the father should pay $175.00 as attorney's fees to the mother's attorney.

From the master's report both the mother and father filed exceptions before Judge Bates of the county court.By these exceptions the father contended that the master should have recommended that custody be changed to him; the mother by her exceptions contended that increased visitation rights should not have been allowed to the father and that the support money should have been increased to $700.00 per month.

By his order dated November 1, 1968, Judge Bates rejected the master's report in its entirety.He awarded custody of the minor children to the father with visitation rights to the mother at all reasonable times and places, and in the summer from the 15th of June until the 15th of August.He further ordered that the exceptions of the mother be overruled.

The case is here on appeal from this order

This action is one in equity.The master found that it was to the best interest of the children that custody remain with the mother.The county judge, however, took a different view of the evidence and held that custody should be in the father.Because of this conflict this court will make an independent determination of the question.Ex parte Atkinson, 238 S.C. 521, 121 S.E.2d 4(1961).

This court has held in numerous cases that in a custody dispute the controlling question and the dominant consideration is the welfare of the children, and what is for their best interest.Ford v. Ford, 242 S.C. 344, 130 S.E.2d 916(1963);Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89(1943).That the welfare of the children is the primary consideration for the court is also recognized in Section 20--115and31--51 of the 1962 Code.The parties prior to their divorce entered into a support and custody agreement.This agreement was made a part of the court's order in the divorce decree.The general law on agreements as to custody of children in post-divorce disputes is as follows:

'(A) final decree awarding the custody of a child in a divorce case, based on an agreement of the parties, is conclusive as between them if no change of circumstances affecting the welfare of the child is shown.24 Am.Jur.(2d)Divorce and Separation§ 825(1966).

The mother in ExceptionNo. 6 to the order of Judge Bates contends that there has been no change of circumstances since the last litigation and order of the court.

When the father first brought action to have the custody changed in 1967, his grounds were that the mother had moved to Washington, D.C., where she worked and was thus unable to care for the children during the day.It was also alleged that the children had indicated a wish to live with the father.Judge Mason, however, in leaving the children in the permanent custody of the mother, noted that the support agreement contemplated the move of the mother to Washington, D.C., so this was held no basis...