Scott v. Scott, 25630.

• Citation: 579 S.E.2d 620,354 S.C. 118
• Decision Date: 14 April 2003
• Docket Number: No. 25630.,25630.
• Court: United States State Supreme Court of South Carolina
• Parties: John McPherson SCOTT, Appellant/Respondent, v. Deirdre Erwin SCOTT, Respondent/Appellant, And Gregory T. Martin, Defendant.

354 S.C. 118

579 S.E.2d 620

John McPherson SCOTT, Appellant/Respondent, v. Deirdre Erwin SCOTT, Respondent/Appellant, And Gregory T. Martin, Defendant.

No. 25630.

Supreme Court of South Carolina.

Heard March 6, 2003.

Decided April 14, 2003.

Rehearing Denied May 14, 2003.

C. Dixon Lee, of McLaren & Lee, of Columbia; and James Fletcher Thompson, of Spartanburg, for Appellant-Respondent.

Robert M. Rosenfeld, of Porter & Rosenfeld; and David A. Wilson, of Horton, Drawdy, Ward & Jenkins, both of Greenville, for Respondent-Appellant.

Andrew G. Goodson, of Younts Alford Brown & Goodson, of Fountain Inn, Guardian Ad Litem.

WALLER, Justice.

This is a cross-appeal from a divorce decree awarding joint custody of the couple's daughter, Caitlyn. We affirm in part, and reverse in part.

FACTS

Appellant/respondent John McPherson Scott (Father) and respondent/appellant Deirdre Erwin Scott (Mother) married on May 18, 1991. It was the second marriage for both. Mother had custody of Kristen Martin, her daughter from her previous marriage,¹ but Father had no children from his previous marriage. On June 30, 1993, Caitlyn was born.

Father filed for divorce in September 1998 on the ground of Mother's adultery. He sought custody of both his daughter Caitlyn and his step-daughter Kristen.² After a hearing in October 1998, the family court issued a temporary order on November 9, 1998, granting Father temporary custody of Caitlyn and awarding visitation to Mother every other weekend and every other Wednesday evening. The temporary order granted Mother custody of Kristen and stated that Father could have visitation with her, but this visitation would be subject to Kristen's wishes. The temporary order further designated Mother's visitation for Thanksgiving and Christmas of that year. The order did not, however, make any provisions for summer 1999 visitation. A Guardian Ad Litem (GAL) was appointed to represent the interests of Kristen and Caitlyn.

The final divorce hearing took place January 29 through February 2, 2001. At that time, Caitlyn was 7 years old and Kristen was 16 years old. During the over two years that the marital litigation was pending, Father refused to agree to any visitation not specified in the temporary order, and Mother went back to the family court no less than three times for modifications of her visitation.³ The primary issue at the lengthy divorce hearing was custody of Caitlyn.⁴ Evidence regarding both Mother's and Father's capacity to alienate the other from Caitlyn was presented. For example, Kristen's relationship with Martin, her biological father, and the litigation regarding Martin's and Martin's parents' visitation with Kristen, was discussed extensively. In sum, the evidence revealed that Mother and Father worked together in an attempt to prevent both Martin and his parents from maintaining a relationship with Kristen.

Father also evidenced a capacity to alienate Caitlyn from Mother. Generally, he was inflexible regarding Mother's visitation. As discussed above, Father fought Mother's efforts regarding summer visitation and clearly would not allow Mother anything other than what was specified in the temporary order. In addition, there was the so-called "Brownie incident." Mother attended a Brownie event with Caitlyn. Father also showed up at the event and apparently was incensed by Mother's presence since it was his weekend with Caitlyn. He called the Brownie troop leader that night and threatened to have her "disbarred" as a troop leader. He subsequently removed Caitlyn from that troop.

In addition to the evidence regarding the parents' potential for alienation, there were numerous other factual issues explored at the hearing. Most were disputed—a true "he saidshe said" situation. For example, there was conflicting testimony as to who was Caitlyn's "primary caretaker" prior to the parties' separation, exactly how much Father traveled with his job prior to the separation, when Mother exposed the children to her paramour, etc. Nonetheless, there was agreement that both Father and Mother love Caitlyn and that Caitlyn has a strong bond with both parents.

The GAL submitted a written report and also testified at the hearing. He noted several times that the custody issue was an extremely "close call." In his written report, he recommended that Mother get custody. During his testimony, he acknowledged that he considered not making any recommendation at all, but he concluded that Caitlyn would be a little bit happier with Mother and her half-sister Kristen. When asked by the family court about a joint custody arrangement, the GAL stated he did not have a problem with that since the parties lived only five blocks from each other and Caitlyn was "very bonded" with both parents.

The family court granted Father a divorce based on Mother's adultery.⁵ Regarding the custody issue, the family court made numerous, detailed factual findings in the divorce decree, including that: both Mother and Father had engaged in deceitful and manipulative conduct; Mother shows dependent traits; Father demonstrates "a consistent need to control and exclude;" and both were "guilty of placing their own interests above the interests of their children."

Most significant, the family court found as follows:

Although the Court finds both parents to be fit insofar as each is able to meet the basic needs of Caitlyn, the Court has serious concerns about the propensity of both parties to place their own emotional needs above the needs of Caitlyn. If this Court were to give sole custody of Caitlyn to either parent, the Court is convinced that the ability of Caitlyn to have a normal parent/child relationship with the other parent would be seriously compromised. Therefore, the decision articulated hereinafter is designed to insure that Caitlyn has regular contact with both parents. It is further designed to attempt to ameliorate some of the destructive behaviors and attitudes in these parents and to teach these parents to share.

(Emphasis added). The family court found joint custody was in Caitlyn's best interest, and ordered that custody alternate between Father and Mother every four weeks.⁶

Father filed a Rule 59(e), SCRCP, motion for reconsideration. The family court made minor amendments, but denied the motion in material part. Regarding joint custody, the family court noted that by statute it had the power to award joint custody. The family court further stated it was "convinced" that joint custody was Caitlyn's only hope for an "equal relationship with both parents."

ISSUES

1. Was the award of joint custody appropriate under the circumstances of this case?

2. Is the restraining order in the divorce decree regarding overnight guests of the opposite sex overly broad and unreasonable?

3. Is Mother entitled to an award of attorney's fees?

JOINT CUSTODY

Father argues the family court erred in awarding joint custody and that he should have been awarded custody of Caitlyn. In response to Father's joint custody argument, Mother maintains that although it is unusual for the family court to award joint custody, she believes the arrangement was appropriate under the unique circumstances of this case. She alternatively argues, however, that she should be awarded custody of Caitlyn if the joint custody decision is reversed. Because we find exceptional circumstances exist in the instant case, we affirm the family court's decision awarding joint custody.

When reviewing the factual determinations of the family court, an appellate court may take its own view of the preponderance of the evidence. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). However, where there is disputed evidence, the appellate court may adhere to the findings of the family court. Id. Because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion. Id. Furthermore, the appellate court "should be reluctant to substitute its own evaluation of the evidence on child custody for that of the [family] court." Id.

The controlling factor in a custody case is the best interest of the child. E.g., Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001). Moreover, in making custody decisions "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).

This Court has stated that "[d]ivided custody⁷ is usually harmful to and not conducive to the best interest and welfare of the children." Mixson v. Mixson, 253 S.C. 436, 446, 171 S.E.2d 581, 586 (1969). Therefore, only under "exceptional circumstances" should joint custody be ordered. Id. at 447, 171 S.E.2d at 586; see also Courie v. Courie, 288 S.C. 163, 168, 341 S.E.2d 646, 649 (Ct.App.1986) ("Divided custody is avoided if at all possible, and will be approved only under exceptional circumstances.").

In 1996, the Legislature amended the statute governing the family court's jurisdiction to specifically grant the family court the exclusive jurisdiction "[t]o order joint or divided custody where the court finds it is in the best interests of the child." S.C.Code Ann. § 20-7-420 (Supp.2002). Thus far, the only published decision to comment on this subsection is Stanton v. Stanton, 326 S.C. 566, 484 S.E.2d 875 (Ct.App.1997), where the Court of Appeals stated the following: "Although joint or divided custody is now permitted under S.C.Code Ann. § 20-7-420(42) (Supp.1996), visitation amounting to divided custody is disfavored by our supreme court." Id. at 573, 484 S.E.2d at 878-79.

It is our opinion section 20-7-420(42) did not change the law in this State that, generally, joint custody is disfavored. Mixson, supra. Nevertheless, our focus remains on the best interest of the child. See Patel, supra; § 20-7-420(42). The issue therefore is whether this case presents exceptional...