Tomlinson v. Melton

• Decision Date: 13 November 2019
• Docket Number: Opinion No. 5692,Appellate Case No. 2016-002329
• Citation: 428 S.C. 607,837 S.E.2d 230
• Parties: Samuel James TOMLINSON, Appellant, v. Jenna M. MELTON, (f/k/a) Jenna M. Tomlinson, Respondent.
• Court: South Carolina Court of Appeals

428 S.C. 607

837 S.E.2d 230

Samuel James TOMLINSON, Appellant,

v.Jenna M. MELTON, (f/k/a) Jenna M. Tomlinson, Respondent.

Appellate Case No. 2016-002329

Opinion No. 5692

Court of Appeals of South Carolina.

Heard April 9, 2019

Filed November 13, 2019

Rehearing Denied February 20, 2020

Kenneth M. Mathews, of Columbia, and Katherine Carruth Goode, of Winnsboro, both for Appellant.

Harry C. Wilson, Jr., of Lee, Erter, Wilson, Holler & Smith, LLC, of Sumter, for Respondent.

SHORT, J.:

In this child custody action, Samuel Tomlinson (Father) appeals the family court's final order, arguing the family court erred in (1) ordering a week-to-week alternating custody arrangement, rather than continuing; (2) failing to make a finding as to Jenna Melton's (Mother's) child support arrearage and failing to offset that amount; and (3) abusing its discretion in its awards to Mother of child support and attorney's fees. We reverse and remand.

FACTS

Father and Mother married in Lexington County on March 8, 2008. In September 2008, Mother and Father had a son together (Child). On January 4, 2011, the family court issued a final order and decree of divorce. At the time of divorce, Child was three years old. The original divorce decree incorporated the custody agreement formed by the parties. In it, Mother and Father share joint custody of Child with Father as the primary custodial parent. The agreement stipulated Mother would have Child every other week from Wednesday at 4:00 p.m. until Monday at 3:00 p.m., various holidays, and equal time during summer months. The family court ordered Mother to pay child support of $100 monthly. The agreement stipulated a de novo review of child custody may be conducted before Child began kindergarten.

Prior to the start of kindergarten, Father filed an action for modification of custody, seeking "the full care, control and custody of [Child]" and requesting Mother receive visitation every other weekend. Mother answered, seeking full custody of Child. The family court held a temporary hearing on September 9, 2014, and subsequently issued a pendente lite order on October 7, 2014, that provided there was insufficient information to change the terms of the 2011 order.

Father lived in a large home in Kingstree and was employed as a physician at Williamsburg Regional Hospital. Mother remarried on July 5, 2016. Mother lived in Sumter with her husband, Cory Mickle, and their newborn daughter. Mother recently accepted a job at the Williamsburg School District, signed a rental contract for a two bedroom house in Kingstree, and purchased land in Kingstree in order to build a home near Child.

After a three-day hearing, the family court altered the original custody agreement and ordered divided week-to-week custody, with Father retaining final decision making authority. The family court modified custody to week-to-week because Child was in school and both parents would soon live in the same city. The family court stated, "it is inappropriate to reduce the amount of parenting time for [Mother] when she is now in the same city," when "[s]he received more than alternating weekends ... while living in another city." The family court ordered Father to pay child support in the amount of $659.00 a month and attorney's fees of $8,500. The order did not reflect any offset for arrears Mother owed Father. Father filed a motion to reconsider—arguing the family court failed to consider Child's stability and failed to offset Mother's arrears—which the family court denied. Father appealed.

STANDARD OF REVIEW

On appeal from the family court, the appellate court reviews factual and legal issues de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). Thus, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis , 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). However, this broad scope of review does not require the appellate court to disregard the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id. at 385, 709 S.E.2d at 651-62. Therefore, the appellant bears the burden of convincing the appellate court that the family court committed error or that the preponderance of the evidence is against the court's findings. Id. at 392, 709 S.E.2d at 655.

LAW/ANALYSIS

I. Week-to-Week Alternating Custody

Father argues the family court erred in establishing a week-to-week divided custody arrangement. We agree.

"The family court has exclusive jurisdiction ... to order joint or divided custody where the court finds it is in the best interests of the child." S.C. Code Ann. § 63-3-530(A)(42) (2010). "However, ‘[a]lthough the legislature gives family court judges the authority to order joint or divided custody whe[n] the court finds it is in the best interests of the child, ... joint or divided custody should only be awarded whe[n] there are exceptional circumstances." Clark v. Clark , 423 S.C. 596, 606, 815 S.E.2d 772, 777 (Ct. App. 2018) (alterations by Clark court) (quoting Lewis v. Lewis , 400 S.C. 354, 365, 734 S.E.2d 322, 327 (Ct. App. 2012) (omission by Lewis court)) (finding one parent's attempt to alienate the other, the excessive "passage of time," and "good reports on [c]hild's welfare and mental adjustment to the situation comprise exceptional circumstances warranting joint custody"); see also Scott v. Scott , 354 S.C. 118, 125-27, 579 S.E.2d 620, 623-25 (2003) (finding exceptional circumstances where the alternating periods of custody were not brief, but four week periods, and where both parents were fit, loved, and wanted their children); Spreeuw v. Barker , 385 S.C. 45, 61, 682 S.E.2d 843, 851 (Ct. App. 2009) (finding exceptional circumstances where "a seven year delay occurred between the issuance of the family court's final order ... and oral argument ....").

"[D]ivided custody is usually harmful to and not conducive to the best interest and welfare of the children." Scott , 354 S.C. at 125, 579 S.E.2d at 623 (footnote omitted) (quoting Mixson v. Mixson, 253 S.C. 436, 446, 171 S.E.2d 581, 586 (1969) ). The Scott Court explained why it disfavored divided custody:

The courts generally endeavor to avoid dividing the custody of a child between contending parties, and are particularly reluctant to award the custody of a child in brief alternating periods between estranged and quarrelsome persons.

Under the facts and circumstances of particular cases, it has been held improper to apportion the custody of a child between its parents ... for ordinarily it is not conducive to the best interests and welfare of a child for it to be shifted and shuttled back and forth in alternate brief periods between contending parties, particularly during the school term. Furthermore, such an arrangement is likely to cause confusion, interfere with the proper training and discipline of the child, make the child the basis of many quarrels between its custodians, render its life unhappy and discontented, and prevent it from living a normal life.

Id. at 125-26, 579 S.E.2d at 624 (quoting Mixson , 253 S.C. at 447, 171 S.E.2d at 586 ).

Here, the family court made no specific findings of exceptional circumstances to justify divided custody, nor do we find any from our de novo review. The record reflects both parents are fit, loving, and want custody of Child. While we applaud both parents for their part in raising a respectful, intelligent, and caring child, the record reflects no exceptional circumstances to justify week-to-week divided custody.

On the contrary, the circumstances of this dispute reflect that divided custody is not in Child's best interest. Here, the family court ordered divided custody for week-to-week periods. Week-to-week divided custody will rarely be in the best interest of the child, especially during the school year. See Courie , 288 S.C. at 168, 341 S.E.2d at 649 ; Scott , 354 S.C. at 125-27, 579 S.E.2d at 623-25 (providing that week-to-week custody was brief, but four week periods of custody was sufficiently long enough to negate harmful effects of divided custody); Woodall v. Woodall , 322 S.C. 7, 12-13, 471 S.E.2d 154, 158 (1996) (holding visitation that shuttled child back and forth for brief periods of two weeks at a time was not in child's best interest).

Additionally, the record reflects both Mother and Father have a divisive relationship and fail to communicate effectively. The record reflects over 4,500 text messages, calls, and emails from Mother to Father where she regularly and frequently requests changes to the schedule. Further, both parties think the other is a bad influence on Child. See Lewis , 400 S.C. at 367, 734 S.E.2d at 329 (finding divided custody is not in best interest of the child when there is an "acrimonious relationship between Husband and Wife"). Because we find there are no exceptional circumstances, the divided custody is in brief periods, and Mother and Father's relationship is acrimonious, we hold divided custody is not in the best interest of Child.

II. Failure to Offset Child Support

Father argues the family court erred in failing to find Mother's child support arrearage and failing to offset that amount against the child support Father was required to pay. We agree.

The original child custody agreement ordered Mother to pay $100 a month in child support. Mother admitted she did not pay child support since the 2011 order.¹ Mother argues this issue was not preserved because Father did not request arrears in his pleadings. While the pleadings did not contain a specific request for arrearage, it did request Mother to pay child support. Mother and Father both testified Mother did not pay child support for five years, from the 2011 order, until the family court hearing on October 11, 2016.

In addressing Father's pleading for child support, the family court as a court of equity must consider the...