Stutz v. Funderburk, No. 20853

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLEWIS; NESS; LITTLEJOHN
Citation252 S.E.2d 32,272 S.C. 273
PartiesKazuko K. STUTZ, Appellant, v. Jerry Earl FUNDERBURK, Respondent.
Docket NumberNo. 20853
Decision Date22 January 1979

Page 32

252 S.E.2d 32
272 S.C. 273
Kazuko K. STUTZ, Appellant,
v.
Jerry Earl FUNDERBURK, Respondent.
No. 20853.
Supreme Court of South Carolina.
Jan. 22, 1979.

[272 S.C. 274] Jack W. Lawrence and James W. Shaw, Spartanburg, for appellant.

Burts, Turner, Hammett, Harrison & Rhodes, Spartanburg, for respondent.

LEWIS, Chief Justice:

This appeal involves a dispute over the custody of the six year old child of the parties. We take the events leading to the present appeal from the Statement in the Transcript.

Page 33

Appellant, Kazuko K. Stutz, and respondent, Jerry Earl Funderburk, were married in 1972, having one child, Jason, born of this union. Subsequently, on July 23, 1976, appellant was granted a divorce from respondent on the grounds of physical cruelty. Prior to the divorce decree, appellant and respondent consented to an interlocutory order under the terms of which their son, Jason, was to be under the care, custody and control of the respondent-father until the appellant-mother was financially capable of caring for the child. The provisions of this consent order were incorporated in the final divorce decree.

As the result of a petition subsequently filed by appellant, the court determined in November 1976 that appellant was [272 S.C. 275] financially capable of caring for her child and awarded custody to her.

Thereafter, respondent petitioned the court to change the custody of the child from appellant to him and, on June 20, 1977, an order was issued granting custody of the child to respondent based, mainly, upon a finding that appellant was then living with a Mr. Stutz while he was married to another person.

Appellant subsequently married Mr. Stutz and petitioned the court to return custody to her on the grounds of changed conditions, the tender years doctrine, and allegations that her present home would provide the more stable atmosphere and surroundings for her child. This last petition of appellant was denied on the ground that a sufficient change of conditions had not been shown to justify a change of custody. This appeal is from that order.

It is apparent that the decision of the lower court was based upon two main considerations, to-wit: (1) respondent has remarried and, through the help of his second wife, is able to care for the child, and (2) appellant had an illicit pre-marital affair with her present husband.

The record shows that both appellant and respondent have remarried. Each live in nice homes and their respective spouses exhibit care for the child. It is undisputed that appellant is now financially able to care for her son which was, by agreement of respondent, the only original requirement for appellant to have custody. But for the moral lapse of appellant with the person she has subsequently married, there is no fact or circumstance in this record upon which to base an order depriving the natural mother of custody of her now six (6) year old son, which was granted to her in the final divorce decree.

While the record discloses an illicit affair between appellant and her present husband, there is nothing to indicate that she, (now remarried, living in a nice home in Rock [272 S.C. 276] Hill, with full time to devote to rearing her son) is not a fit and proper person to have custody. Where, as here, the moral lapse of the mother is not indicative of a continued course of conduct, we have held that its force is limited to what effect it has, either directly or indirectly, on the welfare of the child;...

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19 practice notes
  • Choudhry v. Sinha, 2020-UP-262
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, 2020-UP-262
    • United States
    • Court of Appeals of South Carolina
    • December 16, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, Appellate Case No. 2017-001082
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, Appellate Case No. 2017-001082
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Request a trial to view additional results
19 cases
  • Choudhry v. Sinha, 2020-UP-262
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, 2020-UP-262
    • United States
    • Court of Appeals of South Carolina
    • December 16, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, Appellate Case No. 2017-001082
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Choudhry v. Sinha, Appellate Case No. 2017-001082
    • United States
    • Court of Appeals of South Carolina
    • September 9, 2020
    ...been shown to warrant the conclusion that the best interests of the child[] would be served by the change." (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979))); id. ("The change of circumstances relied on for a change of custody must be such as would substantially af......
  • Request a trial to view additional results

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