Turner v. Thomas
| Decision Date | 19 August 2020 |
| Docket Number | Appellate Case No. 2017-000725,Opinion No. 5765 |
| Citation | 848 S.E.2d 353,431 S.C. 527 |
| Court | South Carolina Court of Appeals |
| Parties | Mitzi S. TURNER, Respondent, v. Richard Charles THOMAS and John Doe, Defendants, v. Charles Louis Garrard, Jr., Third Party Respondent, Of whom Richard Charles Thomas is the Appellant. |
Bruce Wyche Bannister, and Luke Anthony Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, for Appellant.
Kirby Rakes Mitchell, of S.C. Legal Services, and Robert M. Rosenfeld, of Robert M. Rosenfeld Attorney-at Law, both of Greenville, for Third Party Respondent.
Mitzi S. Turner, of Seneca, pro se.
In this domestic relations matter, Richard Thomas (Grandfather) appeals the family court's findings, arguing the family court erred in (1) finding Charles Garrard, Jr. (Garrard) is a de facto custodian of the minor child (Child), (2) admitting improper hearsay evidence, (3) finding Garrard is a psychological parent to Child, (4) awarding custody of Child to Mitzi Turner (Grandmother), (5) requiring Grandfather to pay Grandmother's and Garrard's attorneys’ fees, and (6) requiring Grandfather to pay a greater share of the guardian ad litem's (GAL) fees. We affirm.
Child's mother, Ashley Thomas (Mother), began dating Garrard when Mother was seven months pregnant with Child. Child was born in January 2013, and Child's biological father has never been identified. After Child's birth, Mother and Child resided with Grandmother—Mother's mother—for approximately four months until Child and Mother moved into a home with Garrard. Mother and Child resided with Garrard until Mother passed away in an automobile accident on June 1, 2015. Following Mother's death, Child continued to reside with Garrard for approximately three weeks, and then Grandmother and Grandfather1 informed Garrard that Child would reside with Grandmother.
On June 22, 2015, Grandmother filed a complaint seeking primary custody of Child. With Grandfather's consent, the family court issued an ex parte order granting Grandmother temporary custody and noting Grandmother would not object to sharing secondary joint custody with Grandfather. On June 26, 2015, Garrard filed a motion to intervene and a motion for temporary relief, requesting temporary custody of Child, and the family court subsequently issued an order adding Garrard as a third party defendant in the action with the consent of Grandmother's attorney. On July 9, 2015, the family court issued a temporary order (the First Temporary Order) granting Grandmother and Grandfather joint custody of Child, giving Grandmother primary physical custody and primary decision making authority for Child, granting Garrard eight hours of visitation on alternate Sundays, and appointing a GAL. On July 14, 2015, Garrard filed an answer, counterclaim, and cross-claim seeking primary or secondary custody of Child. Grandfather subsequently filed a motion requesting termination of Garrard's visitation. On November 20, 2015, the family court issued a temporary order (the Second Temporary Order), granting Garrard visitation as follows: eight hours on Wednesdays, eleven hours on alternate Sundays, three hours on Christmas Eve, and forty-five minutes on Christmas morning. The Second Temporary Order also provided Grandfather would have visitation with Child one weekend per month from Friday at 6 P.M. until Sunday at 6 P.M. and for eight hours one day each week that Grandfather and Grandmother agreed upon. On December 1, 2015, Grandmother filed an amended complaint seeking sole custody of Child with Grandfather and Garrard having visitation with Child. Grandfather filed an amended answer, counterclaim, and cross-claim seeking sole custody of Child, visitation for Grandmother, and dismissal of Garrard's request for custody or visitation. Garrard filed an answer, counterclaim, and cross-claim to Grandmother's amended complaint, seeking an order declaring he is Child's psychological parent and granting him shared custody of Child with Grandmother.
The family court held a final merits trial from January 4–6, 2017. On January 27, 2017, the family court issued a final order (the Final Order) in which it (1) found Garrard was a de facto custodian and a psychological parent to Child, (2) granted Grandmother custody, (3) granted Garrard and Grandfather visitation, (4) ordered Grandfather to reimburse Grandmother and Garrard for a portion of their attorneys’ fees, and (5) required Grandfather to pay fifty percent of the GAL's fees and Grandmother and Garrard to each pay twenty-five percent. The family court subsequently denied Grandfather's motion to alter or amend the Final Order. This appeal followed.
I. Did the family court err in finding Garrard is a psychological parent of Child?
II. Did the family court err in admitting improper hearsay evidence?
III. Did the family court err in finding Garrard is a de facto custodian of Child?
IV. Did the family court err in awarding primary custody of Child to Grandmother?
V. Did the family court err in requiring Grandfather to pay Grandmother's and Garrard's attorneys’ fees?
VI. Did the family court err in requiring Grandfather to pay a greater share of the GAL's fees?
The appellate court reviews a family court's evidentiary or procedural rulings using an abuse of discretion standard. Stoney v. Stoney , 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (per curiam). Appellate courts review all other family court matters de novo. Id. at 594, 813 S.E.2d at 486. De novo review allows the appellate court to make its own findings of fact, but the appellate court is not required to ignore the family court's superior position to make credibility determinations. Lewis v. Lewis , 392 S.C. 381, 384–85, 709 S.E.2d 650, 651–52 (2011). Under de novo review, the "appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers , 420 S.C. 411, 416, 803 S.E.2d 469, 471 (Ct. App. 2017).
Grandfather argues the family court erred in finding Garrard is a psychological parent to Child and in considering evidence from after the initiation of the action to do so. We disagree.
In child custody cases, the controlling considerations are the welfare and best interests of the child. Bojilov v. Bojilov , 425 S.C. 161, 176, 819 S.E.2d 791, 800 (Ct. App. 2018). "There is a rebuttable presumption that it is in the best interest of any child to be in the custody of its biological parent." Marquez v. Caudill , 376 S.C. 229, 240–41, 656 S.E.2d 737, 743 (2008). "Under the penumbra of custody is the lesser included right to visitation." Middleton v. Johnson , 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006). In this case, there is not a biological parent seeking custody of Child, but this court has found that to safeguard the best interests of children, "the General Assembly has recognized that in certain circumstances, persons who are not a child's parent or legal guardian may be proper parties to a custody proceeding." Id. ; see S.C. Code Ann. § 63-3-530(20) (2010) ().
Before Middleton , no South Carolina court had definitively determined a party was a psychological parent, and thus, no South Carolina court had granted custody or visitation to a psychological parent. In Middleton , the court noted that although our courts recognized the existence of the psychological parent doctrine in Moore v. Moore2 and Dodge v. Dodge ,3 our courts had never provided for how a party could establish that he or she was a child's psychological parent. 369 S.C. at 595, 633 S.E.2d at 168. Therefore, the court examined how other states make psychological parent determinations, and it adopted the four-prong test used by the Supreme Court of Wisconsin, which requires a petitioner seeking to demonstrate the existence of a psychological parent-child relationship to show:
Marquez , 376 S.C. at 241–42, 656 S.E.2d at 743 () (quoting Middleton , 369 S.C. at 596–97, 633 S.E.2d at 168 ); see In re Custody of H.S.H.-K. , 193 Wis.2d 649, 533 N.W.2d 419, 421 (1995). The court in Middleton also recognized "that when both biological parents are involved in the child's life, a third party's relationship with the child could never rise to the level of a psychological parent, as there is no parental void in the child's life." 369 S.C. at 598, 633 S.E.2d at 169.
Grandfather asserts the family court erred in considering evidence of Garrard's relationship with Child following the initiation of this action. We find this argument is without merit as there is no indication the family court considered such evidence when it found Garrard is Child's psychological parent.
In making its determination that Garrard is Child's psychological parent, the family court cited to circumstances which necessarily occurred prior to the initiation of the action because the evidence pertained to the time period when Mother was still alive and living with Garrard and...
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