Smith v. Smith, 19673

• Decision Date: 02 August 1973
• Docket Number: No. 19673,19673
• Citation: 261 S.C. 81,198 S.E.2d 271
• Court: South Carolina Supreme Court
• Parties: Robert B. SMITH, Respondent, v. Clara Susan SMITH, Appellant.

Page 271

198 S.E.2d 271

261 S.C. 81

Robert B. SMITH, Respondent, v. Clara Susan SMITH, Appellant.

No. 19673.

Supreme Court of South Carolina.

Aug. 2, 1973.

Eddie R. Harbin, Greenville, for appellant.

C. Ben Bowen, of Abrams, Bowen & Townes, Greenville, for respondent.

LEWIS, Justice.

This is a controversy between divorced parents over the custody of their son who is now approximately eight (8) years of age. The parties separated in March 1970 and the wife was granted a divorce by the Greenville County Family Court on March 11, 1971 on the ground of physical cruelty. The divorce decree awarded custody of the child, then six years of age, to the mother, with reasonable visitation privileges to the father and the requirement that he pay $15.00 per week as child support. At that time all parties resided in Greenville County.

In June 1971, the mother, without notice to the Greenville Family Court or the father, left with relatives and moved to Omaha, Nebraska. The testimony is in dispute as to the cause for her leaving Greenville. She says it was because of threats and harassment by the father, which he denies. She lived in Nebraska for about two and one-half months and then moved to Fairfield, California, where she and the child lived in the home of an aunt. The whereabouts of the mother and child were not known by the father until August 1971, at which time he went to California, persuaded the mother to let him have the child for a day, upon representations that he desired to purchase him some clothes; and, having so gained possession, immediately brought the child back to South Carolina.

Upon his return to South Carolina, the father instituted this proceeding to have the Family Court change custody of the child from the mother to him. (Both parents have remarried--the mother living with her second husband in Fairfield, California, and the father with his second wife in Greenville, South Carolina.) After hearing the testimony and receiving reports of investigations made of the respective family situations of the mother in California and the father in South Carolina, the lower court concluded that it was in the best interest of the child that he be placed in the custody of the father; and an order was entered to that effect, with reasonable visitation privileges to the mother. From this order the mother has appealed.

The mother contends that the lower court erred in awarding custody to the father because (1) there was no evidence to show a change in condition of such substantial character as to justify a modification of the previous custody order, and (2) she did not receive a 'fair and prompt trial in compliance with the Family Court rules.'

The general rule, supported by all cases in this jurisdiction, is that a child custody decree is not final, but is subject to modification or change upon the showing of a material change in conditions affecting the welfare of the child.

The lower court made no finding of moral unfitness of either parent; and the only new developments, since the original custody order, were the remarriage of the parents and the change of the residence of the mother from Greenville, South Carolina, to Fairfield, California. There is no showing that the present home of the mother is unsuitable or that, if custody remains with her, the child would not receive reasonable and proper care.

There is an exhaustive annotation in 43 A.L.R.2d 363 on remarriage as a ground for modification of a child custody decree. At page 389, Section 4(a) of the annotation the applicable general rule is stated:

'Where both of the parents have remarried, the custody of a child will not ordinarily be transferred from the one to whom it was originally awarded where it is not shown that the home of such parent is unsuitable or that the child is not receiving reasonable and proper care. As in other cases, however, the welfare of the child is the controlling consideration, and the change in conditions consequent upon such remarriages may be so material as to justify or require the modification of the custodial decree.'

There is nothing in this record to show that the remarriage of the mother constituted such a change in conditions as would justify a modification of the previous custody order.

The lower court was influenced in changing custody by the fact that the mother removed the child from the State without the knowledge or permission of the court or the father. The original decree granting custody to the mother was silent as to the place where the mother and child were to live, and, since the decree contained no directions as to place of residence, the mere fact that the mother went to another State to live with relatives did not constitute a material change in condition justifying...