Spreeuw v. Barker

• Decision Date: 29 July 2009
• Docket Number: No. 4602.,4602.
• Court: South Carolina Court of Appeals
• Parties: Diana SPREEUW, Respondent/Appellant, v. Douglas BARKER, Appellant/Respondent.

682 S.E.2d 843

385 S.C. 45

Diana SPREEUW, Respondent/Appellant, v. Douglas BARKER, Appellant/Respondent.

No. 4602.

Court of Appeals of South Carolina.

Heard March 5, 2009.

Decided July 29, 2009.

Gregory S. Forman, of Charleston, for Appellant/Respondent.

Russell S. Stemke, of Isle of Palms, for Respondent/Appellant.

HEARN, C.J.:

This is a protracted custody suit where an order issued in 2002 is only just now being reviewed on appeal.

FACTS

During their ten-year marriage, Diana Spreeuw (Mother) and Douglas Barker (Father) lived in Charleston and had two children: Daryn, born January 1, 1990, and Dylan, born March 20, 1997. Mother, the family's primary breadwinner, worked in the field of health-care finance, while Father worked as an attorney. After the birth of the parties' second child, their marriage began deteriorating. To further complicate matters, Mother learned her employer, the last remaining health-care provider with financial operations in the area, would soon leave Charleston for Nashville. Mother immediately began searching for comparable employment in the area; however, her efforts were unsuccessful.¹ Soon thereafter, on June 25, 1999, Father commenced a divorce action.

Prior to the divorce hearing, Mother and Father reached an agreement regarding custody and child support. With her oldest child expressing a desire to finish elementary school in Charleston and no employment opportunities in the area, Mother agreed to give Father primary custody of the children, while sharing joint legal custody with him. In addition, Mother agreed to pay Father $1,000 in child support per month. Meanwhile, Mother accepted the closest employment opportunity available in Nashville. The parties were divorced and the agreement was approved by order of the family court dated December 17, 2001.

Following the divorce, Mother moved to Nashville to begin her job. While there, she routinely sent letters to the children and called them daily. Approximately two months later, Father married Daphne Burns. Thereafter, Daphne began living with Father and the children in Charleston. Daphne described her time in the house as filled with "tension, anger, and ugliness." Six months after moving in, Daphne moved out of the house. Over the next year, Daphne moved back into the house on two occasions only to permanently move out of the house in the spring of 2001.² Jo Marie Hartman, a neighbor of Father, telephoned Mother and informed her of Daphne's permanent departure from the home. Mother called Father and expressed concern about the impact the move would have on the children.

A few months later, the children arrived at Mother's house for summer visitation. While there, her oldest child begged Mother to return to Charleston. In June 2001, Mother decided to return to Charleston and called Father to inform him of her decision. Shortly thereafter, Mother placed her home in Nashville on the market and began searching for employment. In contemplation of her return, Father scheduled a mediation session to revisit the existing visitation schedule. For some unknown reason, the mediation never took place, and the current visitation schedule remained in effect.

By September, Mother still had not sold her house and had failed to find comparable employment in the Charleston area. Nevertheless, Mother, believing her children needed her, took the first job she could find and moved into a friend's house on Daniel Island.³ Mother, who earned $74,000 a year in Nashville, was then working in a fabric store earning $6.50 an hour. Mother supplemented her income by substitute teaching at local schools for $50 a day. All the while, Mother continued her search for a financial management position in the area She solicited the service of head-hunting agencies, sent out numerous job applications, looked through employment advertisements in the newspaper, and networked with friends in search of employment. Eventually, Mother accepted a position as an accounts receivable clerk with RoHoHo Incorporated, a franchisee of Papa John's Pizza, earning $26,000 per year.

A month after Mother's return to Charleston, Father still refused to amend the existing visitation schedule.⁴ On October 31, 2001, Mother filed a complaint against Father seeking a change in custody and modification of child support. At the temporary hearing, Father alleged his monthly income was $3,600 per month, while Mother indicated her monthly income was $903.59. The Honorable F.P. Segars-Andrews issued a temporary order granting Mother overnight visitation with the children every Wednesday night and on alternating weekends. In addition, Mother's child support payments were reduced from $1,000 to $500 per month.

In October of 2001, Father commenced a romantic relationship with Jennifer Helm. As the relationship progressed, Jennifer began spending more and more time at Father's home with the children present. On some occasions, Father acknowledged Jennifer stayed past the children's bedtime. According to the testimony of Mother and the Guardian ad Litem ("Guardian"), the parties' oldest child did not like Jennifer and felt uncomfortable with her in the house. By contrast, Father testified that his children loved Jennifer.

The parties' lives remained virtually unchanged until August 6, 2002 when Father, pursuant to the parties' prior understanding, picked up the children from Mother's house at 9:00 A.M. to take their oldest child to register for school. By the time Father arrived at Mother's residence, she had already departed for work, and the children, ages twelve and five, were alone. However, the children were provided with a list of names and telephone numbers of nearby neighbors they could contact in case of an emergency. After arriving at Mother's house, Father immediately called Mother and informed her he was keeping the children for the remainder of the day. Father also attempted to contact the Guardian, who was unable to take his phone call at the time. Thereafter, Father visited his attorney's office and instructed him to prepare a motion for an ex parte order. In his motion, he alleged "the children were to be left alone all day while [Mother] was at work."⁵ On that same day, Judge Segars-Andrews issued an emergency ex parte order preventing the children from being left home alone.

A mere five days before the parties' September 10, 2002 trial date, Father, on his own initiative and without prior notice or approval, took the children to the office of Dr. Barton Saylor, a forensic psychologist, to be assessed and interviewed. From his interview with the children, Dr. Saylor concluded that the children were well-adjusted and did not display any significant emotional problems. At trial, Dr. Saylor made it clear that he did not conduct a custody evaluation or make a comparison of the parents.

Prior to trial, the Guardian submitted her written report to both parties. The Guardian's written report was the culmination of a five-month investigation of the family, consisting of numerous interviews, observations, and in-home visits.⁶ The Guardian did not submit a recommendation regarding custody of the children in her report. Instead, the Guardian, through her attorney, informed the court she wished to reserve the right to make a custody recommendation at the conclusion of the testimony. At that time, the Guardian orally recommended that primary custody of the children be awarded to Mother. The Guardian based her recommendation on numerous factors including: the oldest child's stated preference to live with Mother; Father's refusal to allow Mother to share in parental decisionmaking; Father's testimony that Mother should not have more time with the children beyond the existing visitation schedule; the children's disposition while in the care of both parties; and her concerns about the impact Father's relationship with Jennifer had on the children.

At the end of trial, the family court issued an order modifying custody and child support. The court's order awarded the parties joint physical custody, designated Mother as the primary physical custodian, and granted her final decision-making authority. In addressing the child support issue, the family court declined to impute income to Mother, finding she was not voluntarily underemployed due to her leaving a high-paying job in Nashville to return to Charleston. Next, the court determined the amount of money Father withdrew from his law firm in 2001 represented only 80% of his total income for that year as reported in his income tax return.⁷ Therefore, when Father alleged he withdrew $6,000 per month in 2002, the family court, operating under the assumption that this amount represented only 80% of his gross income, concluded Father's income for 2002 equaled $7,500 per month (80% of $7,500 = $6,000). Then, the family court determined Father improperly included $1,474.47 of items as expenses that should have been reported as part of his gross monthly income in his financial declaration. As a result, the family court concluded Father earned $8,974.47 per month for child support purposes and required him to pay $804 per month in child-support to Mother. Lastly, the family court ordered Father to pay Mother $43,675 in attorney's fees and costs in light of the vigorous defense asserted by him and the beneficial results obtained by Mother.

Thereafter, both parties filed motions to alter or amend the judgment. Before the court could rule on the motions, Father also filed a motion for relief from judgment based on newly discovered evidence. The family court denied both parties' motions to alter or amend the judgment on February 28, 2002. Father filed a notice of appeal on March 13, while Mother filed a notice of appeal on March 27. On April 7, the family court denied Father's motion for relief from judgment based on newly discovered evidence. Subsequently, Father filed a second notice of appeal on April 11. On May 8, Court of Appeals Judge...