Whitesell v. Whitesell
| Decision Date | 26 August 2020 |
| Docket Number | Opinion No. 5771,Appellate Case No. 2017-002601 |
| Citation | 848 S.E.2d 588,431 S.C. 575 |
| Court | South Carolina Court of Appeals |
| Parties | Kaitlin Kimbrell Harper WHITESELL, Respondent, v. Jeremy Page WHITESELL, Appellant. |
Thomas Franklin McDow, IV, and Erin K. Urquhart, both of McDow and Urquhart, LLC; and Barrett Wesley Martin, of Barrett W. Martin, P.A., all of Rock Hill, for Appellant.
Daniel Dominic D'Agostino and Jacqueline N. Davis, both of D'Agostino Law Firm, of York, for Respondent.
This family court case involves requests to modify child support and custody. Father argues the family court erred by not specifically addressing which witnesses were credible and why. He also argues that the family court made several other errors depriving him of a fair trial and that Mother did not properly plead a claim for attorney's fees.
We respectfully disagree with these arguments. The family court's order reveals the reasons for its decision, and after reviewing the record, we agree with those reasons. This case began with Mother's request to modify child support per a provision in the parties' divorce decree. The lengthy and contentious trial proceeded because Father pursued a request to change the custody arrangement. We agree with the family court's decision to resolve that claim against Father. Given that outcome, we agree it is equitable for Father to pay a portion of Mother's attorney's fees as the family court ordered. We also agree Mother properly pled a claim for attorney's fees. Thus, we affirm.
Father and Mother married in February 2006. They separated in October 2009 and divorced in March 2011. They are the parents of two girls: Daughter 1, born in July 2006, and Daughter 2, born in March 2008.
Father and Mother met while they were students at York Technical College. They married shortly thereafter. Both Father and Mother went to school part-time after Daughter 1 was born.
This seems to have been a rocky relationship. Father claimed Mother was a habitual liar. Mother claimed Father spent too much time with other female students when he began a full school schedule.
Both parties claimed the other was physically abusive and some of the conduct described in the record is alarming. Father admitted throwing a block through the window of Mother's car and tying an extension cord from the bumper of his mother-in-law's car to the mother-in-law's garage door. The parties were, nevertheless, able to reach a final agreement at the end of their marriage. The divorce decree ratified that agreement.
Two parts of the divorce decree are relevant here. First, the parties agreed to joint physical custody with Mother being the primary custodial parent, subject to the agreed parenting plan. The parenting plan provided Father would have the children from the time school ended on Thursday until 6:00 p.m. on Sunday, every other week, and overnight on the Thursdays during the weeks of his "off" weekend. The decree provided "[b]oth parents will have reasonable and at all times private telephone contact with the children, and the children will be allowed to have reasonable, private telephone contact with either parent."
Second, the parties agreed to deviate down from the DSS Child Support Guidelines and that Father would pay $400 per month in child support. The divorce decree noted both parties were enrolled in college and lacked a steady source of income. The decree explained "[b]ecause of the temporary nature of each party's financial situation, a change in either party's income or any of the other factors taken into consideration in the calculation of child support ... will be a substantial change of circumstances upon which child support may be recalculated."
Mother filed this case in April 2016—roughly five years after the divorce. She sought an increase in Father's child support.
Father responded and sought more parenting time as well as an order terminating his child support and requiring child support from Mother.
Father claimed Mother would not work with him in co-parenting and was trying to alienate him from the children.
His evidence included several disparaging text messages Mother sent him in the months before she filed this case. The messages were insulting and inflammatory.
Mother's chief allegation against Father is prolonged harassment. She claimed her disparaging messages were due to frustration at Father failing to timely pay child support, threatening to "take the girls" if Mother sued for an increase in child support, and failing to timely respond to her questions about the children's education, medical issues, and extracurricular activities.
Mother also claimed Father harassed her by keeping her under constant surveillance. Father, who is himself a private investigator, admitted to hiding under Mother's home in order to eavesdrop. He also, with his father's involvement, had investigators place cameras around Mother's family beach house during Mother's vacation and place GPS trackers on Mother's vehicle and her boyfriend's vehicle. Father also secretly recorded his phone calls with Mother, recorded Mother's calls with the children, and recorded conversations he had with the children. At one point, Father apparently had a physical altercation with Mother's then-boyfriend and was charged with assault and battery.
The family court tried this case for four days in June 2017. Thirteen witnesses testified. The court entered an order in August 2017, roughly two months later.
The family court increased Father's child support to $1,335 per month and ordered Father to pay his support through the clerk of court. The court also ordered Father to pay $20,000 of Mother's attorney's fees. This was slightly less than half of Mother's total attorney's fees. The court denied Father's requests to change custody and modify the parenting plan. The court ordered the parties to complete psychological evaluations that had been ordered four months before the trial and explained that the report from those evaluations would be submitted to the court-appointed co-parenting counselor. This appeal followed.
1. Whether the family court erred in failing to directly and specifically address witness credibility.
2. Whether any of Father's numerous alleged errors warrant reversal or combine to deprive him of a fair trial.
3. Whether the family court erred in determining Mother properly pled a claim for attorney's fees and whether the trial court erred in awarding her $20,000 in attorney's fees.
In family court appeals, this court reviews factual and legal issues de novo. Simmons v. Simmons , 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) ; Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court reviews the family court's findings de novo, we are not required to ignore 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. Lewis , 392 S.C. at 385, 709 S.E.2d at 651–52. The appellant has the burden of showing this court the greater weight of evidence is against the family court's findings. Id . at 392, 709 S.E.2d at 655.
Father argues that before making findings of fact the family court should have determined witness credibility and made specific credibility findings. His brief relies on cases explaining the jury's role in judging credibility. Father also cites cases in which appellate courts have admonished trial courts for issuing orders that lack a sufficient explanation and leave a reviewing court to "grope in the dark."
We agree that witness credibility can be important and that nobody—not the parties, a reviewing court, or anyone else—should be left to grope in the dark for the reasons a family court made a decision. Rule 26(a) of the South Carolina Rules of Family Court speaks to this by requiring the family court to support its decision with specific findings of fact and conclusions of law. We know of no authority requiring the family court to give a witness-by-witness account of its credibility assessments. Epperly v. Epperly explains an order is sufficient as long as a reviewing court can determine the basis for the family court's ruling. 312 S.C. 411, 414, 440 S.E.2d 884, 886 (1994).
The final order in this case is sixteen pages long. It explains the family court judge reviewed all of the exhibits, considered the testimony, and considered witness credibility. The order also summarizes and explains the rulings on each issue.
Father's core argument centers on Mother's credibility. He believes many examples in the record show Mother as being untruthful. It would be wasteful to list all of these examples here. The basic point is that Father believes Mother is generally dishonest and he asserts that numerous instances reveal this to be true.
Neither the guardian ad litem (the GAL) nor the family court agreed with this characterization. We agree with them. While the record suggests both parties were not always completely forthcoming and transparent with each other, the family court's decision was grounded in its finding that Mother and Father were fit and capable parents despite their substantial difficulties with each other.
A large part of Father's case hinged on the breakdown of a constructive co-parenting relationship. Father claims this breakdown was Mother's fault.
The family court disagreed and found "both parties" contributed to this relationship's deterioration and made co-parenting "extremely difficult." The court conspicuously mentioned that Father had continued conducting surveillance on Mother "[d]espite being divorced for over six years" and ordered Father to "cease to intrude" on Mother's life. The family court likewise ordered Mother to stop directing profane language at Father and suggested she use better self-control.
Father's argument relies largely on his view of the facts as he saw them at trial. When...
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