Tillman v. Oakes

• Decision Date: 19 July 2012
• Docket Number: No. 4978.,4978.
• Citation: 398 S.C. 245,728 S.E.2d 45
• Parties: Sean Patrick TILLMAN, Respondent, v. Margaret Jane OAKES, Appellant.
• Court: South Carolina Court of Appeals

398 S.C. 245

728 S.E.2d 45

Sean Patrick TILLMAN, Respondent,

v.Margaret Jane OAKES, Appellant.

No. 4978.

Court of Appeals of South Carolina.

Heard April 24, 2012.

Decided May 30, 2012.

Rehearing Denied July 19, 2012.

David Alan Wilson, Horton, Drawdy, Ward, Mullinax, & Farry, P.A., of Greenville, for Appellant.

John Michael Turner, Sr., Turner & Burney, P.C., of Laurens, for Respondent.

FEW, C.J.

This is an appeal from an order of the family court to change custody of a child. We find the order does not adequately set forth the basis on which it awarded the change and does not demonstrate a substantial change in circumstances affecting the welfare of the child. We reverse and remand for a new trial.

I. Facts and Procedural History

Margaret Oakes and Sean Tillman married and had two sons: Jack, born in 1993, and Peter, born in 1999. The couple divorced in 2003. The divorce decree incorporated a custody agreement which stated the parents would share joint legal custody of the children with primary placement to Oakes and liberal visitation to Tillman. Almost five years later, in March 2008, Tillman filed this action seeking full custody of the children.¹ In his complaint, Tillman alleged the substantial change in circumstances warranting a custody change was “substantial problems in scheduling visitation and in communication between the parties” and unnamed “other issues.” By the time of trial in October 2009, Tillman also asserted a change in circumstances due to two instances of Oakes physically punishing Peter, her alleged lack of cooperation in dealing with “some serious issues” related to Jack, and her alleged attempt to turn the boys against him.

Tillman spent the vast majority of his trial testimony discussing issues regarding Jack's behavior. He explained that these issues relate to Peter, the younger son, because his “biggest concern is that if the situation stays the same that it is today that Peter will end up with some of these same issues that Jack is struggling with.” However, except to say Oakes “has refused to cooperate with the father or discuss with him significant issues of concern pertaining to the children,” the family court did not address those issues in its order.

The guardian ad litem testified both parents “present great opportunities for these children” and “are good parents.” In his written report, the guardian stated, “I believe ... both parents are very capable of providing for their children and, no matter where custody is placed, can meet the needs of the children.” He went on to explain the problem with maintaining the original custody arrangement is the parents' communication problems, and the issue “is how to spell out the time specifically in such a manner that there is no doubt about when the children are to be with each parent.”

On December 30, 2009, the family court issued an order granting Tillman's request for a change in custody of Peter “commencing with the 2010–2011 school year.” The order left custody of Jack with Oakes and provided she would have visitation with Peter every other weekend. While this appeal was pending, Tillman filed a petition in the family court and later this court asking the court to suspend Oakes' visitation with Peter.

II. Review of the Family Court's Custody Determination

We review decisions of the family court de novo, as the supreme court recently explained in Lewis v. Lewis, 392 S.C. 381, 386–89, 709 S.E.2d 650, 652–54 (2011). In Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004), the supreme court summarized the legal principles courts apply to a request for a change of custody:

As in all matters of child custody, a change in custody analysis inevitably asks whether the transfer in custody is in the child's best interests. In order for a court to grant a change in custody, there must be a showing of changed circumstances[,] ... mean[ing] that sufficient facts have been shown to warrant the conclusion that the best interests of the children would be served by the change. The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and welfare of the child. Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.

360 S.C. at 381, 602 S.E.2d at 35 (internal citations and quotation marks omitted). See also Housand v. Housand, 333 S.C. 397, 405–06 n. 5, 509 S.E.2d 827, 832 n. 5 (Ct.App.1998) (“When determining whether a change of circumstance has been established in a custody case, the issue is whether the evidence, viewed as a whole, establishes that the circumstances of the parties have changed enough that the best interests of the children will be served by changing custody.”); Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct.App.2000) (“[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.” (internal quotation marks omitted)); Hollar v. Hollar, 342 S.C. 463, 476, 536 S.E.2d 883, 890 (Ct.App.2000) (“While Mother clearly suffered a lapse in judgment in allowing [a man] into her bed while the child was in the home, the record is devoid of evidence of any impact on the child whatsoever.... [W]e are not persuaded this isolated incident is sufficient to warrant a change in custody.”); Routh v. Routh, 328 S.C. 512, 520, 492 S.E.2d 415, 419 (Ct.App.1997) (“[R]emarriage is normally relevant to show improved circumstances on the part of a remarried parent seeking to obtain custody, not to show the deterioration of the circumstances of the custodial parent.”).

The family court's order is unclear as to the factual findings which support its conclusion that Tillman proved a substantial change in circumstances that affected Peter's welfare. See Rule 26(a), SCFCR (“An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision.”). From our review of the order, we discern the following factual findings to support the court's decision:

1. Communications between the parents “diminished to the point that there is no personal mutual acknowledgement or mutual respect between the parents and stepparent to the extent that proper parenting under the joint custody Order is no longer effective.”

2. Tillman “remarried and relocated and has a suitable and proper home.”

3. Jack is a full-time resident at Governor's School.

4. “[T]he children are now older.”

5. “There has been at least one incident of excessive corporal punishment” of Peter by Oakes.

6. “There have been incidents of physical altercations between” Oakes and Peter.

7. The parents “disparaged each other to the children and have improperly exposed the children to their parental difficulties and conflicts.”

8. Oakes “refused to cooperate with” Tillman “or discuss with him significant issues of concern pertaining to the children.”

9. Oakes and Jack “both have interests in drama and theatre. Peter on the other hand is more into math and science....”

10. “Peter has mainly expressed an interest in being with his father.”

These findings, viewed as a whole, do not amount to “a substantial change in circumstances affecting the welfare of the child” or a showing that the “change in custody is in the overall best interests of the child.” Latimer, 360 S.C. at 381, 602 S.E.2d at 35.

Several of the findings warrant individual discussion. First, the family court relied on the parents' communication problems. However, the court found the parents mutually responsible for those problems. The court gave no explanation as to how the communication problems affect Peter's welfare and made no finding that a change of custody would improve the problems.

Second, the family court characterized two incidents as “excessive corporal punishment,” and found “incidents of physical altercations between” Oakes and Peter. Our review of the testimony reveals that in one incident, Oakes bruised Peter's arm while trying to put a sweatshirt on him before school. Peter had dressed himself in short sleeves when the temperature was thirty degrees outside. When Oakes pressed him to wear the sweatshirt, he “pretty much threw a fit” and refused to wear it, saying to his mother, “No, you can't make me. I'm not gonna wear it.” When she attempted to force him to put it on, he started hitting her. In her attempts to restrain him, she bruised his arm. Oakes testified the second incident occurred in the morning after Peter had been particularly defiant since the night before. She described his demeanor as “hateful,” “yelling at me,” and “objecting when I asked him to do anything at all.” She testified he told her “I won't do that,” “you can't make me,” and “you're mean.” At one point he walked away from her when she was trying to talk to him. She testified candidly, “I spun him around by the shoulder and I slapped him.” As to the “physical altercations,” Oakes testified that they occurred in 2008 when Peter “would get upset” and swing his arms, but he does not do that any longer.

Occasional misbehavior of this type is normal for a child of Peter's age. Though we do not condone Oakes' responses, no parent can be held to the unattainable standard of making a perfect response to the misbehavior of a child every time. Our review of Oakes' testimony convinces us she understands her responses in these situations were unacceptable and is working to ensure she does not respond in that manner in the future. Moreover, the record clearly indicates these were isolated incidents. There is no evidence that any...