Shirley v. Shirley

Decision Date31 July 2000
Docket NumberNo. 3233.,3233.
Citation342 S.C. 324,536 S.E.2d 427
PartiesJohn SHIRLEY, Appellant, v. Sheila SHIRLEY, Respondent.
CourtSouth Carolina Court of Appeals

James W. Tucker, Jr., of Rock Hill, for appellant. Douglas A. Barfield, Jr., of Lancaster, for respondent. Thomas F. McDow, of Rock Hill, for Guardian ad Litem.

ANDERSON, Judge:

John Shirley appeals the family court's denial of his request for a change of custody. We affirm as modified herein.

FACTS/PROCEDURAL BACKGROUND

John Shirley (the father) and Sheila Shirley (the mother) were divorced by order of the family court dated May 6, 1994. Pursuant to the divorce decree, the mother was granted custody of the parties' two minor daughters, Amanda (born February 24, 1987) and Tabitha (born June 19, 1990).

The father instituted this action for a change of custody in January 1996. The mother answered, admitting certain factual allegations made in the father's complaint, but denying he was entitled to a change of custody. A guardian ad litem was appointed to represent the children pursuant to a consent order.

After a hearing, the family court issued its order, leaving custody with the mother. The court required the father to pay the mother's attorney's fees of $2,692.50 as well as the guardian ad litem's fees. This appeal followed.

STANDARD OF REVIEW

On appeal from the family court, this court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884 (1994). This broad scope of review, however, does not relieve the appellant of the burden of convincing us that the family court committed error. Skinner v. King, 272 S.C. 520, 252 S.E.2d 891 (1979). Nor are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimonies. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). Because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to trial court findings where matters of credibility are involved. See Aiken County Dep't of Soc. Servs. v. Wilcox, 304 S.C. 90, 403 S.E.2d 142 (Ct.App.1991)

. "This is especially true in cases involving the welfare and best interests of children." Id. at 93, 403 S.E.2d at 144.

LAW/ANALYSIS
I. Custody

The father argues the family court erred in failing to grant him custody of the child. 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, 245 S.E.2d 612 (1978). In reaching a determination as to custody, the family court should consider how the custody decision will impact all areas of the child's life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects. Pountain v. Pountain, 332 S.C. 130, 503 S.E.2d 757 (Ct.App.1998). Additionally, the court must assess each party's character, fitness, and attitude as they impact the child. Id. at 136, 503 S.E.2d at 760. "There exist no hard and fast rules for determining when to change custody and the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed." Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975).

In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question. Baer v. Baer, 282 S.C. 362, 318 S.E.2d 582 (Ct.App.1984); see also Bolding v. Bolding, 278 S.C. 129, 130, 293 S.E.2d 699, 700 (1982)

("In order to justify a change of custody, the party seeking the transfer bears the burden of establishing a material change of conditions substantially affecting the welfare of the child."). "A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child will be served by the change." Pitt v. Olds, 333 S.C. 478, 481, 511 S.E.2d 60, 61 (1999); see also Skinner v. King, 272 S.C. 520, 523, 252 S.E.2d 891, 892-93 (1979). "(T)he change of circumstance relied on for a change of custody must be such as would 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 warranting a change in custody must occur after the date of the original custody order. Henggeler v. Hanson, 333 S.C. 598, 510 S.E.2d 722 (Ct.App.1998). Custody decisions are matters left largely to the discretion of the trial court. Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704 (Ct.App.1987). Furthermore, the appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996).

A. Mother's Failure to Administer Appropriate Medication to the Children

The father asserts the family court erred in failing to find that the mother's failure to properly administer medication to the children constituted a change of circumstances warranting a change of custody. We disagree.

Both children have epilepsy, which is controlled with anti-convulsive medication. Dr. Jan Shaw, the children's treating neurologist, set the prescribed dosages at therapeutic levels established through medical testing. She testified that lowering the medication dosage could result in "breakthrough" seizures and she would be concerned if one of the parents lowered the medication dosage without contacting her. She further testified that possible side effects of the medication include drowsiness, fatigue, stomachaches, difficulty with gait, and personality changes.

It is uncontested the mother reduced Tabitha's dosage of the anti-convulsive medication on one occasion for a period of fifteen days. The mother apparently made this decision because Tabitha was experiencing adverse side effects from the medication, including difficulty staying awake in school. The child did not suffer any breakthrough seizures during the time the mother reduced her medication.

The father testified the mother failed, on a number of occasions, to make sure the children had adequate amounts of their medication with them when they visited with him. He stated he would at times be forced to get a prescription filled during his visitation with the children. Nonetheless, he opined it was the responsibility of the parent who had the children at the time the medication ran out to get the prescriptions filled. The mother denied the children were ever without medication.

The family court noted the mother has resumed giving the child's normal dosage of medication and there is no evidence the child was harmed due to the temporary reduction in the prescribed dosage. The court observed the mother and father both purchased medication for the children and they are equally responsible the children's uninsured medical costs.

While we share in the father's concern regarding the mother's decision to temporarily reduce Tabitha's prescribed dosage of medication, we do not feel her actions in doing so evidence an indifferent or neglectful attitude towards the children's medical care. Although ill-advised, the mother's decision to reduce the child's dosage was made with the child's well-being in mind. Thus, while we strongly admonish the mother to refrain from adjusting the children's prescribed dosages of medication without first consulting their treating physician, we find no error in the family court's determination the incident does not warrant a change of custody.

Moreover, our reading of the record does not convince us the mother has intentionally failed to provide the children with adequate amounts of medication during visitation with the father. Rather, it appears the parties' difficulties result from a lack of communication and cooperation. While we think the parties should coordinate their efforts to resolve their problems, we do not think the circumstances warrant a change of custody.

B. Dental Care

The father contends the mother has failed to provide the children with necessary dental care. Specifically, the father refers to the mother's failure to take one of the children to an appointment with the dentist and her refusal to follow the dentist's advice. He claims the children have developed gingivitis and pyorrhea.

The mother acknowledged she missed one of Amanda's dental appointments. However, she explained the father, who made the appointment, informed her he made the appointment but did not notify her of the time and did not confirm it with her. Moreover, the mother admitted that despite the advice of the child's regular dentist, she did not want Tabitha's tooth pulled. She explained two of the child's "baby" teeth had already been removed. Although the mother did not allow the children's regular dentist to pull Tabitha's tooth, she did not withdraw the children from the dentist's care. At trial, she explained that she had scheduled appointments for the children with a different dentist concerning their dental care. The father agreed the children's problems with gingivitis and pyorrhea have improved, and the mother testified she supervises their use of the mouthwash recommended by their dentist.

In our view, the record does not evidence an attitude of indifference on the part of the mother regarding the children's dental care. Although she disagrees with some of the dentist's recommendations, she has not withdrawn the children from his care. As well, there is no evidence in the record that the children's dental problems have...

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