Sharpe v. Sharpe, 19274
| Decision Date | 20 August 1971 |
| Docket Number | No. 19274,19274 |
| Citation | 183 S.E.2d 325,256 S.C. 517 |
| Court | South Carolina Supreme Court |
| Parties | Jan T. SHARPE, Respondent, v. Joan Scott SHARPE, Appellant. |
John Gaillard Martin and Bernard Manning, Columbia, for appellant.
Luther M. Lee, of Lee & Ball, Columbia, for respondent.
This controversy involves the custody of Connie Janine Sharpe, the nine year old daughter of the parties who were divorced in Richland County in November 1966. An agreement between the parties as to the custody of and support for Connie, visitation rights, etc. was incorporated in the divorce decree. By such agreement and decree, the mother was awarded custody but the father was accorded visitation rights on Thursday afternoon of each week and certain other visitation rights on every other weekend.
The latter part of August 1968, the mother was offered employment in Houston, Texas, which was for her a promotion and deemed by her to be greatly to the advantage of herself and her child. Upon the advice of counsel she, with the child, departed for Texas without notifying the father, who was not informed of their whereabouts for approximately three months. There was no prohibition in the divorce decree against such a move. The father visited Connie for several days in Houston during Christmas 1968, but thereafter he made no further effort to visit her and from early 1969 to mid 1970 made no effort to contribute to her support.
The instant proceeding was commenced by the father in February 1970, and reached a hearing before the standing master of Richland County on June 22, 1970. In his petition the father alleged that the mother was not a fit and proper person, morally, to have the custody of the child and sought to obtain full custody himself. At the hearing there was a total failure of proof on his part as to the alleged unfitness of the mother, the evidence being to the effect that Connie and the mother were well situated in Texas, with Connie being happily and properly cared for. The master actually made no findings of any facts pertinent to the present controversy other than the respective residences of the parties and that it was too late to make any visitation or custody change for the summer of 1970, the master's report being dated September 3, 1970. Under 'findings of fact' he made numerous recommendations, including the recommendation that the father should have the custody of Connie from June 15 to August 15 of each year, beginning in 1971. Upon exceptions to the master's report, the Richland County Court adopted the recommendations of the master and confirmed his report but additionally ordered the father to pay arrears for the support of Connie, a matter at issue either overlooked or ignored by the master. The mother has appealed challenging only the award of custody to the father for the period of June 15 to August 15 of each year.
We conclude that the lower court was in error and reverse such holding. Unfortunately, the pressure of an extremely heavy docket prevented this case from reaching this Court and being considered and decided by it in time to afford the appellant mother any relief during the summer of 1971.
The master's report was clearly not in compliance with Sec. 10--1412 of the Code. See Elrod v. Elrod, 230 S.C. 109, 94 S.E.2d 237. Since neither the report nor the decree contained sufficient pertinent or relevant findings, of fact, it is impossible to know what fact, if any, other than the distance between Columbia and Houston, Texas, was the foundation for the decree of divided custody.
In the very recent case of McGregor v. McGregor, 255 S.C. 179, 177 S.E.2d 599 (1970), we had occasion to consider the distinction between 'visitation' and 'divided custody'. We quoted with approval from 24 Am.Jur. (2d) 920, Divorce and Separation, Sec. 809, the general rule to the effect that 'possession for a period of time such as a month or two, or during the summer months, is termed 'divided custody'.' In the also very recent case of Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969), we held that the best interest and welfare of children demands that divided custody be avoided if possible, and that such will not be approved except under exceptional circumstances or for strong and convincing reasons. In Mixson we also held that 'In order to change the custody, however, there must be a showing of changed...
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...substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience" Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d 325 (1971) (citing Ford v. Ford, 242 S.C. 344, 130 S.E.2d 916; Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376.) The circumstances w......
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