Sellers v. Nicholls

• Decision Date: 05 August 2020
• Docket Number: Appellate Case No. 2017-001108,Opinion No. 5754
• Citation: 851 S.E.2d 54,432 S.C. 101
• Court: South Carolina Court of Appeals
• Parties: Lindsay Allison SELLERS, Appellant, v. Douglas Anthony NICHOLLS, Respondent.

432 S.C. 101

851 S.E.2d 54

Lindsay Allison SELLERS, Appellant,

v.Douglas Anthony NICHOLLS, Respondent.

Appellate Case No. 2017-001108

Opinion No. 5754

Court of Appeals of South Carolina.

Submitted April 1, 2020

Filed August 5, 2020

Withdrawn, Substituted, and Refiled December 9, 2020

Rehearing Denied December 9, 2020

Tucker S. Player, of The Player Law Firm, of Columbia, for Appellant.

Marcus Wesley Meetze, of Law Office of Marcus W. Meetze, LLC, of Simpsonville, for Respondent.

LOCKEMY, C.J.:

In this child custody action, Lindsay Allison Sellers (Mother) appeals the family court's order denying her motion for a continuance, finding it was in the children's best interest to be placed with Douglas Anthony Nicholls (Father), and granting Father $15,000 in attorney's fees. We affirm.

FACTS/PROCEDURAL HISTORY

Mother and Father married in August 2006. During their marriage, they lived in Greenville and had two children: a daughter, who is now twelve years old (Daughter) and a son, who is now eight years old (Son) (collectively, Children). Mother and Father separated in 2012 and divorced on June 6, 2014. The original final order (the Original Order) incorporated an agreement that provided for joint legal custody and joint week-to-week physical custody. It ordered that neither party pay child support; however, Mother was to pay for medical insurance and childcare costs. The Original Order also restrained the parties from having Children overnight in the presence of members of the opposite sex.

One year later, Mother filed a complaint requesting sole custody and that Father receive supervised visitation with no overnights. Father filed an answer and counterclaim alleging there had been a change in circumstances and he should be awarded sole custody of Children, child support, and attorney's fees. Thereafter, Mother filed a motion for temporary relief requesting sole custody of Children. The family court ordered the Original Order remain in effect.

The guardian ad litem (the GAL) subsequently filed a second motion for temporary relief after Mother relocated to Columbia. The family court then issued a temporary order granting Mother custody, finding the move was for legitimate purposes and based on Mother's reported ability to make more money if she was promoted to a management position. The temporary order granted Father standard visitation, but it did not address child support.

On June 13, 2016, Mother's first attorney was relieved by order of the family court. On October 14, 2016, Mother filed an emergency motion for temporary relief requesting child support, which included Mother's affidavit stating she informed her attorney that Son was having stomach pain, issues defecating, and had wet the bed multiple times. Her affidavit stated her attorney believed these were red flags of sexual abuse and she asked her attorney to conduct a forensic interview. The affidavit detailed that during Son's forensic interview, he disclosed "something" to Mother's attorney that was then reported to law enforcement. The South Carolina Department of Social Services (DSS) conducted an investigation. DSS determined the allegations were unfounded.

Father filed a motion to disqualify Mother's attorney, arguing she had become a necessary fact witness regarding custody based on her forensic interview of Son. Neither Mother nor her attorney attended the hearing on Father's motion to disqualify. At the hearing, the GAL and Father asked the court not to continue the final hearing based on the disqualification. In its November 17, 2016 order, the family court granted Father's motion and stated, "The disqualification of [Mother's] counsel shall not, under any circumstances, be a basis for continuing the trial in this matter .... This case remains set for trial on December 13[, 2016]."

On November 28, 2016, Mother filed a Rule 59(e), SCRCP motion to reconsider, arguing the disqualification created substantial hardship because she would be unable to find an attorney in time for the hearing. The family court did not rule on the motion. On December 7, 2016, Mother and her disqualified attorney signed a consent order relieving Mother's attorney as counsel. In the consent order, Mother agreed she would "represent herself pro se in this action in the event she is unable to obtain counsel."

At the outset of the December 13, 2016 hearing, Mother requested to continue the hearing based on her attorney's disqualification. The family court stated the disqualification order indicated "that this case remains set for trial and shall not be continued" and "I believe only the[ ] Administrative Judge[ ] can continue this case." Mother stated she filed a motion for reconsideration of the disqualification order, but there had been no resolution of that motion. The family court reiterated it could not continue the case because the previous order stated the case "shall not" be continued.

Mother testified that during the marriage she worked as a manager at Walmart and earned $54,500 a year. Mother explained she was selected to be promoted but needed to move to a Columbia store first. She stated she took a new position in Columbia but did not receive a raise.

Mother explained Father hired a private investigator to place a GPS tracking device on her car while she was at work, and a customer reported that it was a bomb. She recalled she took medical leave from Walmart because Father continually distracted and stalked her. Mother testified that after she left her employment with Walmart, she worked for her former attorney from September 2016 until November 2016. She explained she then took a job working for a plastic surgeon making $39,000 a year, received rental income of $350 a month, and earned another $500 a month from work as a guardian ad litem.

Mother stated Father made it difficult to coordinate the drop-off of Children and other plans; however, Mother also stated the week-to-week visitation was a nonissue and worked. Mother admitted she violated the Original Order by having her boyfriend stay overnight when Children were with her. Mother asserted Father failed to pay Children's medical bills as required by the Original Order.

Connie Drake, Mother's stepmother, testified she and George Sellers, Mother's father, (Grandfather) (collectively, Grandparents) allowed Mother to move into their home in Lexington County. She explained that during Mother's stay, Grandfather was the primary caretaker for Children and was responsible for picking them up from daycare, providing them dinner, and putting them to bed while Mother was at work. Drake stated Mother would get into irrational screaming matches with Children. She testified Mother left Children in Grandparents’ care so she could travel to Europe and stay overnight with her boyfriend. Drake also stated Mother and Children spent nights at Mother's boyfriend's house. She explained Mother stopped letting Children see her and Grandfather as of February 2016. She testified Father arranged for Children to visit with Grandparents, and she believed placement with Father was in Children's best interest because Mother was unable to discipline them.

Grandfather testified Mother and Children argued every morning while at his house. He recalled that on one occasion, Mother got into an argument with Children because they did not want to stay the night alone with Grandfather while she spent the night with her boyfriend. He recalled Children cried for hours following Mother's departure, and Mother refused to come back to get them. Grandfather recalled Children behaved well around Father and enjoyed spending time with him. He testified he and Father made amends following the divorce, and Father allowed Grandparents to see Children after Mother stopped letting them visit. Grandfather stated he was Children's primary caregiver at least two days a week.

Father testified he worked as a school resource officer on weekdays from 7:30 a.m. to 4:00 p.m. Father explained he hired a private investigator who placed a GPS tracking device on Mother's car after she refused to disclose where she lived. He testified Mother filed an order of protection in Lexington County, which was dismissed. Father stated he never went to Mother's work following the divorce. Father testified Mother failed to inform him about any of Son's ADHD medical appointments or prescriptions. He explained he was on a waiting list for a three-bedroom apartment and expected to be able to move into that apartment two weeks after the hearing. Father stated Mother did not inform him she was moving, and he did not find out until six months after she moved when she filed this action. He believed Mother moved to Columbia to be closer to her former boyfriend. Father testified the temporary order removing Children from Greenville hurt his relationship with Children. He explained Mother failed to inform him about Children's extracurricular activities.

Father explained that after Mother accused him of sexually abusing Son, the results of law enforcement's forensic interview showed "no signs of sexual abuse in [Son]." He believed Mother and her attorney accused him of sexual abuse after Son had "grabbed himself in the anal area several times during a soccer game, complain[ed] of stomach hurting, dance[d] around when he ha[d] to defecate and began to wet his bed." Father stated he believed Son acted this way because of his ADHD medication, which caused constipation. Father recalled Mother initially failed to inform him that Son was taking medication and failed to provide the medication during his week of custody. He testified he never failed to pay medical bills as Mother alleged. Father stated Mother's behavior was erratic and unpredictable, she had moved multiple times since the temporary hearing, and her changing romantic relationships created instability in Children's lives. He testified placement with him was in Children's best interest because he had remained consistent in how he lived, worked a schedule...