Wheeler v. Gill, No. 1748

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON
Citation307 S.C. 94,413 S.E.2d 860
PartiesLinda Robinson WHEELER, Appellant, v. Gregory Alan GILL, Respondent. . Heard
Docket NumberNo. 1748
Decision Date12 November 1991

Page 860

413 S.E.2d 860
307 S.C. 94
Linda Robinson WHEELER, Appellant,
v.
Gregory Alan GILL, Respondent.
No. 1748.
Court of Appeals of South Carolina.
Heard Nov. 12, 1991.
Decided Jan. 6, 1992.

Page 861

[307 S.C. 95] David H. Wilkins and Timothy E. Madden, both of Wilkins & Nelson, P.A., Greenville, for appellant.

Kathleen P. Jennings, Greenville, for respondent.

Weyman H. Dodson, Jr., of Dodson & Dodson, Greenville, Guardian ad Litem.

[307 S.C. 96] CURETON, Judge:

The primary issue involved in this appeal is the propriety of the award of sole custody of the parties' daughter to the Respondent (father). The Appellant (mother) appeals. We affirm as modified.

The parties were married in 1981 and divorced in 1988. Pursuant to a court approved agreement, custody of their daughter, Lindsey, born in March 1986, was jointly awarded to both of them. The custody order provided for review of the custody arrangement in one year. In September 1989, the mother petitioned the court to review the order asserting its unworkability and requesting she be awarded sole custody. The father counterclaimed for sole

Page 862

custody. Both parties sought attorney fees and other related relief. The parties stipulated that only the circumstances occurring subsequent to the divorce decree would be considered by the court in making its decision. Following a one-day hearing, the trial court awarded sole custody to the father, denied attorney fees to both parties and provided for the mother's visitation with Lindsey.

In challenging the custody award, the mother argues the trial court (1) ignored the tender years doctrine; (2) failed to accurately weigh the personal characteristics and circumstances of the parties; (3) failed to thoroughly and independently examine all of the evidence; (4) erred in considering events which occurred before the issuance of the divorce decree; (5) failed to consider the mother as the primary caretaker parent; (6) erred in placing certain limitations on her visitation; and (7) erred in admitting certain hearsay statements. The mother also conditionally argues that in the event this court should reverse the trial court, she should be awarded child support and attorney fees.

The mother testified she is thirty-five years old, has a college education, and works as a property manager in charge of three office buildings. She works from 8:00 a.m. to 5:00 p.m., but has flexible hours which permits her to eat lunch with Lindsey at the day care center and do volunteer work there. [307 S.C. 97] She has worked at three jobs since the divorce. Although the divorce was granted to the father based on adultery, she has now married her paramour, Larry Wheeler. Lindsey has a good relationship with Mr. Wheeler. The mother's parents live in Highlands, North Carolina, and come to see the child about once a week. The mother lives in a two-bedroom, two bath apartment containing approximately 1200 square feet located in a family complex. She also testified she and Lindsey are very close and she plans family activities around Lindsey and involves her in children's theater, church, and other activities. She further testified she, Larry, and Lindsey have attended extensive family counseling.

The mother's witnesses testified to her good parenting skills, Lindsey's happiness while in the mother's care, and the bond between Lindsey and her mother. Her psychologists testified to the bonding between Lindsey and her mother and the emotional stability of the mother. They also testified to the emotional stability of Mr. Wheeler.

The father testified he is thirty-one years of age and works at a plumbing and heating supply place. He has been employed there since 1982. He owns and lives in the former marital residence, having purchased the mother's interest after the divorce. The home has approximately 1200 square feet, two bedrooms, a bath and a large fenced yard. Both he and Lindsey are the outdoors type and they do lots of things together. He recently purchased a puppy for her. He also has close family connections. He and his parents attend the same church and he and his family are very active in the church. He plans everything around the child. Both he and Lindsey have participated in extensive family counseling. He works from 7:30 to 5:00 and has little job flexibility, but could leave work in an emergency. He has diabetes, but it is under control.

The father's psychotherapist testified she has assisted him with developing parenting skills. The father and Lindsey are closely bonded. He has a commitment to the child and the ability to predict her feelings. It was her opinion that the father was the emotional and psychological parent of Lindsey and to award custody to the mother would do great emotional harm to Lindsey. She stated the father has great emotional resources and good parenting skills. The father's other witnesses[307 S.C. 98] confirmed the closeness of his relationship to Lindsey, his parenting skills, his deep religious beliefs, and his extended family support resources.

We are unable to locate a case decided by an appellate court in this State outlining the criteria to be used where custody is changed from joint to sole custody. Of paramount significance here, however, is the fact the divorce court ordered a review of the operation of the joint custody arrangement in one year. Under the terms

Page 863

of such an order, neither party would be required to show a change of circumstances to support a request for review of the custody order. Indeed, either or both parties may show the workability or the unworkability of the joint custody arrangement. The party or parties claiming the arrangement is...

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13 practice notes
  • Spreeuw v. Barker, No. 4602.
    • United States
    • Court of Appeals of South Carolina
    • July 29, 2009
    ...educational, medical, family, emotional, and recreational aspects of the child's life should also be considered. Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992). In sum, the totality of circumstances unique to each particular case constitutes the only scale upon which th......
  • Altman v. Griffith, No. 4205.
    • United States
    • Court of Appeals of South Carolina
    • February 5, 2007
    ...of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed." Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 865 (Ct.App.1992) (quoting Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 Mother next asserts the family ......
  • Rice v. Rice, No. 2977.
    • United States
    • Court of Appeals of South Carolina
    • April 26, 1999
    ...a determination of the best interest of the children is an inherently case-specific and fact-specific inquiry. See Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992) (In child custody cases, "`the totality of the circumstances peculiar to each case constitutes the only scal......
  • Pirayesh v. Pirayesh, No. 3793.
    • United States
    • Court of Appeals of South Carolina
    • May 11, 2004
    ...Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996); Epperly v. Epperly, 312 S.C. 411, 415, 440 S.E.2d 884, 886 (1994); Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992). When determining to whom custody shall be awarded, the court should consider all the circumstances of ......
  • Request a trial to view additional results
13 cases
  • Spreeuw v. Barker, No. 4602.
    • United States
    • Court of Appeals of South Carolina
    • July 29, 2009
    ...educational, medical, family, emotional, and recreational aspects of the child's life should also be considered. Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992). In sum, the totality of circumstances unique to each particular case constitutes the only scale upon which th......
  • Altman v. Griffith, No. 4205.
    • United States
    • Court of Appeals of South Carolina
    • February 5, 2007
    ...of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed." Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 865 (Ct.App.1992) (quoting Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 Mother next asserts the family ......
  • Rice v. Rice, No. 2977.
    • United States
    • Court of Appeals of South Carolina
    • April 26, 1999
    ...a determination of the best interest of the children is an inherently case-specific and fact-specific inquiry. See Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992) (In child custody cases, "`the totality of the circumstances peculiar to each case constitutes the only scal......
  • Pirayesh v. Pirayesh, No. 3793.
    • United States
    • Court of Appeals of South Carolina
    • May 11, 2004
    ...Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996); Epperly v. Epperly, 312 S.C. 411, 415, 440 S.E.2d 884, 886 (1994); Wheeler v. Gill, 307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct.App.1992). When determining to whom custody shall be awarded, the court should consider all the circumstances of ......
  • Request a trial to view additional results

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