Routh v. Routh

• Decision Date: 09 September 1997
• Docket Number: No. 2728,2728
• Citation: 492 S.E.2d 415,328 S.C. 512
• Parties: Christine Virginia ROUTH, Appellant, v. Charles Wayland ROUTH, Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 415

492 S.E.2d 415

328 S.C. 512

Christine Virginia ROUTH, Appellant, v. Charles Wayland ROUTH, Respondent.

No. 2728.

Court of Appeals of South Carolina.

Heard Sept. 9, 1997.

Decided Sept. 29, 1997.

Lourie A. Salley, Lexington, for appellant.

Milton M. Avrett, Ill, Augusta, GA, for respondent.

Guardian ad Litem: Vickie Johnson Snelgrove, of Johnson, Johnson, Whittle, Snelgrove & Weeks, Aiken.

CURETON, Judge.

The parties to this action were formerly husband and wife who were divorced in the state of Georgia on December 16, 1992. Pursuant to the parties' agreement, they were granted joint custody of their daughter, Amber Nicole Routh, age two, with the wife being "designated as the primary physical custodian of Amber." The father was given the usual visitation rights. The instant custody case began with the appellant, Christine Virginia Routh (Christie), filing a complaint against the respondent Charles Wayland Routh (Freddie), in which she requested Freddie be enjoined from exercising his visitation rights with Amber because Freddie had sexually abused Amber. Freddie counterclaimed for custody of Amber and the court granted custody to Freddie. We affirm.

Issue On Appeal

While the wife has divided her position on appeal into four arguments, the one encompassing issue is whether the trial court abused its discretion in granting custody to Freddie.

Facts

After the separation of the parties in August 1992, Christie and Amber moved into Christie's mother's (Mrs. Cooper's) home in Aiken, South Carolina, while Freddie remained in Georgia. Christie and Amber have been living in Mrs. Cooper's home since the divorce, except for a short period from April to August 1993, when they resided with Freddie's sister. In October 1993, Freddie remarried. Two weeks later he exercised his weekend visitation with Amber. Freddie picked up Amber from Mrs. Cooper's house on November 12, 1993, and returned her on November 14, 1993. During that weekend visitation, Freddie, his new wife, stepchild and Amber all went to Six Flags over Georgia.

Mrs. Cooper testified that upon her return, Amber became agitated and refused to sit in the bath tub, and complained her vagina burned. Mrs. Cooper also testified Amber was restless, attempted to french kiss her, simulated intercourse, and asked her to put her tongue on her bottom. During this visitation, Christie was out of town with her boyfriend.

On November 15, 1993, Mrs. Cooper called Amber's pediatrician to examine Amber. She was told to take Amber to the University Hospital in Augusta, Georgia. The University Hospital found no evidence of sexual molestation. The alleged incident of sexual abuse was reported to the Aiken County Department of Social Services (DSS), which commenced an investigation. While a great deal of the order under appeal is devoted to the abuse issue, suffice it to say, the court found Freddie did not abuse his child. There has been no appeal of that finding. Thus, the principal issue on appeal is whether or not Freddie has shown sufficient change of conditions to warrant a modification of the Georgia custody order. ¹

Freddie works full-time for a heating and air conditioning company and part-time for his father who runs a cleaning business. Between the two jobs, Freddie grosses $1,306 per month. Freddie's new wife, Tina, cares for two children in their home and earns about $600 monthly. Freddie, Tina and their two children ² live in a manufactured home in Georgia which has three bedrooms and two baths. One of the bedrooms is set aside for Amber. Freddie and Tina testified they spend a lot of time with their family which is the focus of their lives. Amber is loved by Freddie and Tina and there is every evidence she loves them.

Christie has, until recently, had difficulty holding down a job. Since the divorce, Christie has worked several places, but has now become a certified nail technician, and has been employed since May 1995 in a beauty parlor. Christie earns $535 per month, but testified she expects her income to increase to $300 per week in the near future. Christie has been subsidized by her family since the divorce. Except for her days off, most of the care afforded Amber comes from Mrs. Cooper. Christie's involvement with Amber on a typical day is somewhat limited. Christie takes Amber to day care between 8:15 and 8:30 a.m. She is taken to kindergarten at 10:30 a.m. by day care employees, who pick her up at 2:00 p.m. for return to day care. Mrs. Cooper picks Amber up from day care at 2:30 p.m. and cares for her until Christie returns home at approximately 7:15 p.m. By the time Christie gets home at night, Amber has usually been bathed and fed by Mrs. Cooper.

The trial court found that during the times Christie has lived with her parents, Mrs. Cooper has interfered with Freddie's visitation. Contrarily, during the period from April to August 1993 when Christie resided with Freddie's sister, Freddie experienced little difficulty in exercising his visitation rights with Amber.

Ruth Doolittle, the DSS case worker who investigated the abuse allegation, observed Christie's dependence on Mrs. Cooper. Doolittle testified Mrs. Cooper said she had concerns about Christie's ability to care for Amber and further stated "that she had done a lot of caring for the child" herself.

The Guardian Ad Litem (GAL) investigated both parents' homes and recommended custody be granted to Freddie. The GAL found that Christie put her own comforts ahead of Amber's and was immature, dependent on her family, and controlled by Mrs. Cooper. Thus, the GAL generally was of the opinion that should custody remain with Christie, Mrs. Cooper would drive a wedge between Amber and Freddie. The GAL felt very strongly that the charges against Freddie were fabricated by Mrs. Cooper as a way of gaining sole control over Amber.

A psychologist, Dr. James I. Maish was appointed by the court to evaluate the allegations of sexual abuse and the relative situations of the parties. Dr. Maish found Christie to be an immature and impulsive woman who at times did not appear to act in the best interest of Amber. He found Christie to be quite dependent upon her family and believed Mrs. Cooper exerted too much control over Christie. Dr. Maish reported that Mrs. Cooper told him that Christie was not capable of caring for Amber and it would be better for her to have custody. According to Dr. Maish, Mrs. Cooper stated Amber viewed Christie more like a sister than her mother. He agreed with the GAL that the child abuse complaint was Mrs. Cooper's means of controlling Amber, and if Amber remained in Mrs. Cooper's household, she would attempt to weaken Amber's relationship with her father. Dr. Maish believed Christie was beginning to have some insight into her problems and recommended that she seek psychological treatment for a dependent personality disorder. Dr. Maish recommended that custody of Amber be granted to Freddie.

On the other hand, Christie and her mother testified she has begun taking a more active role in rearing Amber. Christie listed a number of things she does for Amber, including feeding and getting her dressed for school, taking her to school, attending school activities, dressing Amber for bed and putting her to bed at night. Christie does not work on Sundays and Mondays, and testified she shoulders all responsibility for Amber on those days. While Christie does not share any of the household expenses in her parent's home, she takes care of Amber's school expenses and other incidentals. Christie acknowledges it is best that she and Amber not reside in Mrs. Cooper's household and she plans to get her own residence when her salary permits. Both Christie and Mrs. Cooper testified Mrs. Cooper is too sick to care for Amber. Christie testified at trial that she did not think there was a problem with the relationship between herself, her mother and Amber.

Discussion

I.

In her first argument, Christie states the trial court did not give any consideration to her substantial contributions to Amber's education. Christie testified Amber was "doing fine" in kindergarten, and that she had received awards for not being a disciplinary problem. Further, Christie testified she was active in Amber's school activities and received thank you notes for furnishing a pumpkin to the school for Halloween and candy for the treats jar. Additionally, Amber had received student of the week award twice and her most recent progress report showed the majority of areas were marked satisfactory. Mrs. Farris, the operator of the day care facility where Amber attends, testified Amber is a well-mannered, happy child. Christie concludes this argument by saying that in "all of Amber's educational matters, [she] has proved responsible, involved and committed, yet this issue was not addressed by the court." We disagree.

While the court could have more fully set out the contributions of Christie to Amber's kindergarten successes, clearly the court did not totally over look those contributions, as suggested by Christie. Moreover, Amber is in her first year of kindergarten, and while she appears to be doing well, the progress reports cover only the first forty-five (45) days of school. Unfortunately, Christie did not appear to have recognized the importance of sharing Amber's school progress with Freddie as...