Simcox-Adams v. Adams

• Decision Date: 02 April 2014
• Docket Number: No. 5215.,5215.
• Citation: 758 S.E.2d 206,408 S.C. 252
• Court: South Carolina Court of Appeals
• Parties: Sherri SIMCOX–ADAMS, Appellant, v. Michael E. ADAMS, Respondent, and Jimmy Simcox and Barbara Simcox, Third–Party Defendants. Appellate Case No. 2011–196406.

408 S.C. 252

758 S.E.2d 206

Sherri SIMCOX–ADAMS, Appellant,

v. Michael E. ADAMS, Respondent,andJimmy Simcox and Barbara Simcox, Third–Party Defendants.Appellate Case No. 2011–196406.

No. 5215.

Court of Appeals of South Carolina.

Heard Nov. 12, 2013.

Decided April 2, 2014.

Stephen D. Schusterman, of Schusterman Law Firm, of Rock Hill, for Appellant.

George W. Speedy, of Speedy, Tanner, Atkinson & Cook, LLC, of Camden, for Respondent.

WILLIAMS, J.

Sherri Simcox–Adams (Wife) claims the family court erred in granting primary custody of the parties' daughter (Child) to Michael Adams (Husband) because it improperly relied on the investigation and report of the guardian ad litem (GAL). Wife also argues her due process rights were violated by the GAL's failure to comply with the requirements of section 63–3–830(A) (6) of the South Carolina Code (2010). Additionally, Wife contends the family court erred when it found Wife's inheritance was transmuted into marital property. We affirm.

FACTS/PROCEDURAL HISTORY

Husband and Wife married in 1994 and have one daughter (Child). On October 2, 2008, Wife filed for divorce on the grounds of adultery and sought child custody, child support, alimony, equitable distribution, and attorney's fees. Husband timely answered and counterclaimed. After a temporary hearing in August 2009, the family court ordered joint custody of Child to Husband and Wife, with Wife as Child's primary custodian. The family court appointed Leland Summers to serve as the GAL and to assist the court on the issue of child custody.

The family court held a final hearing on May 2 and 3, 2011. At the commencement of the hearing, the parties agreed to waive alimony and any interest in the other party's retirement or 401(k) accounts. The GAL also submitted his report to the family court. Wife, however, did not object to the timeliness of its submission. Wife, Husband, the parties' treating psychologist, Dr. J. Patrick Goldsmith, and the GAL all testified at the final hearing.

Wife first testified in support of her claim that she should be Child's primary caretaker. She highlighted several incidents she believed Husband put Child in danger. She testified Husband did not tell her when he accidentally squirted sunscreen in Child's eye, which eventually resulted in an eye infection. She also claimed Husband drove his jet ski recklessly while Child was riding with him. According to Wife, the jet ski flipped over and Child was thrown into the water. Wife stated Husband permitted Child to drive a golf cart without supervision and Child almost ran the golf cart off the road.

During her testimony, Wife was questioned about her mental state and a prior “episode” of catatonic symptoms she experienced in August 2008. In response, Wife stated it was brought on by a urinary tract infection, and contrary to Husband's claims, she was never instructed to undergo a psychological evaluation. She stated there were no other episodes and it did not affect her ability to parent Child. Wife claimed Husband had concocted that story in an attempt to get custody of Child. In regards to her contact with the GAL, she stated she only met with the GAL one time, and he had never contacted her outside that meeting.

Next, Dr. Goldsmith testified regarding his evaluation of Wife, Husband, and Child. Dr. Goldsmith diagnosed Child with an adjustment disorder and depressed moods; Husband with an adjustment disorder and anxiety; and Wife with an adjustment disorder “with mixed disturbance of emotions and conduct, to include paranoid traits.” According to Dr. Goldsmith, Child said Wife would make untruthful statements about Husband. Child also told Dr. Goldsmith that Wife instructed Child to say she wanted to live with Wife, whereas Father instructed Child to simply tell the truth. Dr. Goldsmith also recalled Wife's statement during their interview that she would not be opposed to having Husband's parental rights terminated because of their disagreements and Husband's anger issues. Dr. Goldsmith testified Wife had been extremely difficult to communicate with in the past, but she was cooperative throughout her interview for this evaluation.

The GAL also presented his observations and concerns at the final hearing. He testified he had two major concerns: (1) the differences in the parents' discipline styles; and (2) Wife's prior mental “episode” and its potential effect on Child's wellbeing if Wife relapsed. When questioned, the GAL acknowledged he was unaware of any other mental incidents in the three years since that single episode. The GAL specifically expressed concern over Wife's behavioral issues and her lack of willingness to cooperate with Husband when conflicts arose. The GAL also stated Child expressed a preference to live with Husband.

On cross-examination, Wife's counsel asked the GAL about his investigation into Wife's concerns over Child's safety while in Husband's care. In response, the GAL stated Child denied being thrown off a jet ski into the water. The GAL admitted he never discussed with Child whether Husband permitted her to drive a golf cart by herself. Wife's counsel also questioned the GAL as to why he failed to interview Wife prior to the final hearing. The GAL stated he attempted to contact Wife “several times” at the phone number she provided to him, but she never answered, and he was unable to leave a message because her voicemail was always full. As a result, he met with her when trial started. The GAL explained that in contested cases, he prefers to do his final interviews close to the final hearing because his observations would be more accurate and it would be less costly to not have to reinterview the parties if there was a continuance.

The GAL also submitted his report to the family court, in which he found the following: (1) Child had a close relationship with both her parents; (2) both parents demonstrated appropriate child-rearing skills and a genuine concern for Child's best interests; (3) Child indicated Wife spoke negatively about Husband in the presence of Wife's family, whereas Husband did not; and (4) Wife and her parents followed Husband “almost to the point of stalking.” As required by statute, the GAL made no recommendation in his report or at the final hearing as to custody.

In addition to the issue of custody, the parties contested the marital nature of the parties' inheritance. Husband and Wife testified they each received an inheritance worth approximately $70,000 to $80,000. Husband's inheritance was invested into the parties' home, which was titled in both parties' names. Wife's inheritance was placed into a joint account, which was titled in both of their names. Wife, however, withdrew these funds from the joint account and created a new account in her and her parents' names after the parties filed for divorce.

Wife stated Husband never contributed any funds to the joint account. Wife admitted that Husband's name was on the account, but she claimed it was only on the account “in case of emergency” and it was more of “an attachment for convenience.” Husband testified the account was used as a “nest egg” and the parties only used the account when Wife was out of work and they needed the additional money to pay bills. Husband stated,

My [inheritance] money was for the house. When she inherited her money, we just used her account like our nest egg kind of account. If something comes (sic) up like when she went out of work, we would have that to help pay for bills, things like that. We never tried to touch the money because that was our nest egg and we used my accounts to pay all the household bills.... I would sometime[s] move [money] around ... whenever I'd pay bills with my account on the internet, I would go to [the joint] account sometimes if we needed to move money to certain accounts.

After considering the testimony and evidence presented at the hearing, the family court granted the parties a divorce based on one year's continuous separation. In its final order, the family court awarded joint custody of Child to Husband and Wife, with Husband as Child's primary custodian. In changing the custodial arrangement, the court noted several incidents when Wife improperly interfered with Husband's visitation with Child. Specifically, the court found there were instances when Wife's parents and Husband would both arrive to pick up Child from school. Husband would acquiesce and allow Wife's parents to take Child from school to avoid conflict. The family court found Wife exhibited poor judgment in dealing with the needs of Child as they related to Husband. In addition, the family court was concerned that Wife created a stressful atmosphere for Child and would be less likely to foster a positive relationship with Husband than if Husband was Child's primary caretaker.

The family court also ruled on whether each party's inheritance was marital property. Despite Wife's claim that her inheritance was her separate property, the family court found additional marital funds were deposited into the joint account. The family court found Wife's testimony that Husband's name was only on the account for convenience was not credible and concluded these funds were intended to be a “rainy day” fund for the parties. As a result, the family court found both Husband's and Wife's inheritances were transmuted into marital property.

Wife appeals.

ISSUES ON APPEAL

1. Did the family court err in relying on the GAL's investigation and report in making its custody determination?

2. Did the family court deprive Wife of her due process rights by considering the GAL's report when the GAL failed to timely submit his report as required by section 63–3–830(A)(6)?

3. Did the family court err in finding Wife's inheritance was transmuted into marital property?

STANDARD OF REVIEW

“In appeals from the family court, [appellate courts] review[ ] factual and legal issues de novo.” Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666,...