Reed v. Pieper

• Decision Date: 01 June 2011
• Docket Number: No. 4837.,4837.
• Citation: 713 S.E.2d 309,393 S.C. 424
• Parties: James REED, Respondent,v.Jennifer PIEPER, Appellant.
• Court: South Carolina Court of Appeals

393 S.C. 424

713 S.E.2d 309

James REED, Respondent,

v.Jennifer PIEPER, Appellant.

No. 4837.

Court of Appeals of South Carolina.

Heard Nov. 3, 2010.Decided June 1, 2011.

Donald Bruce Clark, of Charleston; James A. Bell, of St. George; Robert N. Rosen, of Charleston, for Appellant.J. Michael Taylor, of Columbia; Lewis C. Lanier, of Orangeburg, for Respondent.WILLIAMS, J.

Jennifer Pieper (Mother) appeals from the family court's order awarding custody of the parties' minor child to James Reed (Father). Further, Mother claims the family court erred in failing to grant her attorney's fees and costs. We affirm.

FACTS/PROCEDURAL HISTORY

Father and Mother were never married, but they are the parents of one child, L.R., who was born on July 28, 2005. The relationship between Father and Mother began in December 2003 while Father was married to Renae Reed. In March 2004, while Father was separated from Ms. Reed, Mother began working at one of Father's companies, and she moved into an apartment owned by one of his companies. Mother and Father began living together soon thereafter, and in November 2004, Mother discovered she was pregnant. In February 2005, Father proposed to Mother, and the parties were engaged for a short period of time until Mother returned the ring and moved in with her parents. The couple experienced many separations and attempts at reconciliation.¹

Shortly after L.R. was born, Father commenced this action seeking custody of the child. The family court issued a pendente lite order, granting joint custody of the child to the parties and requiring Father to pay Mother child support. Mother and Father continued dating one another. During the pendency of this action, maternal grandmother, Linda Pearson, signed an affidavit recommending Father be awarded custody of her grandchild, L.R., while Mother obtained treatment for her emotional condition.² Father once again proposed marriage to Mother, and she moved back in with Father in October 2006 when L.R. was a one-year old. After another dispute in December 2006, Mother permanently moved out of Father's home and returned to her parents' home.

At the final hearing on May 12–13, 2008, the family court received testimony from the parties, their witnesses, and the guardian ad litem. After carefully weighing the evidence, the family court found that “both parents have an obvious love for their son” and “have experience in caring for this child.” Finding both parents to be fit, the family court considered the “totality of the circumstances” and concluded it was in the best interest of L.R. to grant Father sole custody with visitation to Mother consistent with the standard visitation schedule. In addition, the family court stated both parties were to pay their own attorney's fees and costs.

On September 25, 2008, Mother timely filed a Rule 59(e), SCRCP, motion seeking to alter or amend the final order. By order dated October 20, 2008, the family court denied Mother's motion to reconsider. This appeal followed.

STANDARD OF REVIEW

On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414–15, 709 S.E.2d 666, 667 (2011); see Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis, 392 S.C. at 387–89, 709 S.E.2d at 653–54. The burden is upon the appellant to convince this court that the family court erred in its findings. Id. at 388–92, 709 S.E.2d at 654–56.

With respect to custody determinations, the appellate courts have consistently shown deference to the family court in electing between fit parents. Altman v. Griffith, 372 S.C. 388, 393, 642 S.E.2d 619, 621 (Ct.App.2007). “In gauging between fit parents as to who would better serve the best interests and welfare of the child in a custodial setting, the family court judge is in a superior position to appellate judges who are left only to review the cold record.” Altman, 372 S.C. at 393, 642 S.E.2d at 622. “For obvious and compelling reasons, as an appellate court, we are reticent to substitute our judgment on the custody determination between fit parents for that of the family court judge.” Id.

LAW/ANALYSIS

A. Best Interests of L.R.

Mother's only challenge to the family court's decision to award Father sole custody of L.R. is that it was against the child's best interests. ³ We disagree.

In all child custody controversies, the controlling considerations are the child's welfare and best interests. Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978). In determining custody, the family court “must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child.” Woodall v. Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996). In other words, “the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.” Parris v. Parris, 319 S.C. 308, 310, 460 S.E.2d 571, 572 (1995) (emphasis added).

The family court properly considered evidence on the strengths and weaknesses of each parent and weighed the totality of circumstances in determining the child's best interests would be served by awarding custody to Father. After extensive testimony on the custody issue from the parties, mental health professionals, and the guardian ad litem, the family court made numerous in- depth findings to support its decision to award custody of the child to Father. We find ample support in the record for these findings.

Father has three children from a previous marriage that he has successfully raised with his ex-wife, Renae Reed. Father has had sole custody of his eldest child while sharing joint custody with his ex-wife of his other two children since their divorce in 2004. Ms. Reed testified on Father's behalf at the hearing, detailing Father's exemplary history as a parent and his continued role as a father to their three children. During the hearing, Ms. Reed stated that Father spends a significant amount of time with the children, coaching his sons' sports teams, staying involved in his daughter's life, and generally having a very close relationship with each of the children. Father has also taken an active role in the children's educational pursuits, spending extra time studying with his eldest son and seeking a tutor for his son's algebra class. In addition, Ms. Reed described Father's role in the care of their daughter, who was born three months premature, as exceptional. In order to care for his daughter who suffered from heart and respiratory complications, Father promptly learned the necessary training including CPR, the proper use of a nebulizer machine, and how to administer her medications. Father took all of these precautions despite Ms. Reed's occupation as a nurse. Ms. Reed's testimony credited Father for his child rearing abilities and stated that his “parenting is perfect.” In short, Ms. Reed believed Father exceeded all expectations as a parent.

In addition, Father's history demonstrates the importance he places on education for himself and his children. While Ms. Reed was pregnant with Father's first child, Father went back to college to support his family. Taking out a student loan and working a forty-hour work week while attending school, Father obtained a four-year degree in three years. This educational advancement allowed Father to become a successful businessman, operating several different corporations. See Davenport v. Davenport, 265 S.C. 524, 528, 220 S.E.2d 228, 230 (1975) (stating that education and parenting skills of a parent are legitimate factors to consider in custody determinations). By contrast, the family court found Mother has generally stated goals, but she does not have a demonstrable record of taking concrete steps to achieve those goals. Moreover, Mother appears to be more focused on what “having her child taken from her” will mean to her personally, rather than what is in L.R.'s overall best interests. See Routh v. Routh, 328 S.C. 512, 516, 492 S.E.2d 415, 418 (Ct.App.1997) (holding that a change in custody was warranted due to guardian ad litem's and psychologist's concern that mother was immature and impulsive and at times did not act in the best interests of her daughter).

Finally, the family court emphasized the stability of Father's home environment in awarding custody to Father. As a result of Father's business success and the sale of the majority of his corporations, Father works from home and maintains a flexible work schedule, which allows him to spend more time with L.R. and adjust his schedule to accommodate L.R.'s needs. See Shainwald v. Shainwald, 302 S.C. 453, 460, 395 S.E.2d 441, 446 (Ct.App.1990) (upholding an award of custody based largely on the father's ability to spend time with the children). Although Mother is critical of Father's personal success, it is Father's financial well-being that actually allows him to have the everyday flexibility to provide a more stable environment than Mother. See Chastain v. Chastain, 381 S.C. 295, 305, 672 S.E.2d 108, 113 (Ct.App.2009) (affirming custody award to a husband who had a flexible work schedule and worked from home, whereas the mother's work schedule was very inflexible). In addition to being able to spend more time with L.R. than Mother, Father's home provides many opportunities for recreation and interaction with L.R.'s three half-siblings, Jimmy, age 17, Elizabeth, age 13, and Matthew, age 11, at baseball games, family outings, and meals.⁴ By contrast, Mother has had several employment changes, has shown no real direction as to her future employment, and L.R. would spend as much as forty hours per week in daycare were Mother to have custody. See Gandy v....