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24880 - Pitt v. Olds

Davis Adv. Sh. No. 3
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Sonya Lynn Pitt, Respondent,

v.

Brian Todd Olds, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Charleston County

Judy C. Bridges, Family Court Judge

Opinion No. 24880

Heard December 1, 1998 - Filed January 18, 1999

REVERSED

D. Mark Stokes, of N. Charleston, for petitioner.

Greg Myers, Pratt-Thomas, Pearce, Epting and

Walker, of Charleston, for respondent.

Cindy M. Floyd, of N. Charleston, Guardian ad Litem.





WALLER, A.J.: We granted a writ of certiorari to review the Court of

Appeals' opinion in Pitt v. Olds, 327 S.C. 512, 489 S.E.2d 666 (Ct. App. 1997).

We reverse.



p.14


PITT v. OLDS





FACTS





This is a custody dispute. Respondent, Sondra Pitt (Mother), and

Petitioner, Brian Olds (Father), were married in Berkeley County in May, 1988.

They had one child, Ashton, born in December, 1988. They were divorced in

September, 1991 based on one year's continuous separation. The divorce decree

granted the parties joint legal custody, with Mother having primary custody,

and father having secondary custody and liberal visitation.





In March, 1993, Mother and Father consented to an order of the family

court enjoining either of them from permanently removing Ashton from the

State of South Carolina on a permanent basis prior to obtaining leave of court.

In April, 1994, Mother, then age 23, married George Pitt, a 49 year old

businessman from Arizona.1 The following month, Mother petitioned family

court seeking to permanently move with Ashton to Arizona to set up residence

with her new husband. After a lengthy hearing, the family court ruled it would

be "clearly adverse to the best interests of Ashton Olds were she to be removed

from her family and friends, familiar surroundings, and her father here in

South Carolina to ... Phoenix, Arizona where she would be essentially a

stranger and not have the necessary family support network..." The family

court found no evidence a move to Arizona would be in the best interests of the

child. Accordingly, the court continued the parties' joint custody arrangement

with Mother having primary custody so long as she established permanent

residency in the geographical area, but that if she failed to do so, Father would

become primary custodian.





The Court of Appeals reversed, holding Mother's desire to join her new

husband in Arizona constituted a "pressing need" sufficient to allow her to

relocate the child to Arizona





ISSUE



Did the Court of Appeals err in holding Mother was entitled to

remove the child to Arizona?





DISCUSSION



In the absence of a change of circumstances affecting the welfare of the


1 Father, age 23, married 20 year old Dian Olds shortly thereafter.

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PITT v. OLDS





child, a final decree of divorce awarding custody in accordance with an

agreement of the parties is conclusive between them. Cook v. Cobb, 271 S.C.

136, 245 S.E.2d 612 (1978). In order for a court to modify an existing custody

decree, there must be a showing of changed circumstances occurring subsequent

to the entry of the decree. Heckle v. Heckle, 266 S.C. 355, 223 S.E.2d 590

(1976). See also Pinckney v. Hudson, 294 S.C. 332, 364 S.E.2d 462

(1988)(change of circumstance requirement applies to cases in which a parent

seeks to alter joint custody). A change in circumstances justifying a change in

the custody of a child simply means that sufficient facts have been shown to

warrant the conclusion that the best interests of the child would be served by the

change. Stutz v. Funderburk, 272 S.C. 273,252 S.E.2d 32,34 (1979). This Court

has specifically held that remarriage alone is not sufficient to warrant

modification of a custody decree. Fisher v. Miller, 288 S.C. 576, 344 S.E.2d 149

(1986). See also Sealy v. Sealy, 295 S.C. 281, 368 S.E.2d 85 (Ct. App. 1988)





The Court of Appeals noted Mother's request to move with Ashton to

Arizona was based "solely on her wish to live with her husband in his

state of residence." 327 S.C. at 520, 489 S.E.2d at 670. (Emphasis supplied).

The Court of Appeals then held that, given Mother's close relationship with

Ashton, the trial judge erred in refusing her request. This was error. The effect

of the Court of Appeals' holding is, in essence, to hold that Mother's remarriage,

in and of itself, constitutes a sufficient change to modify the existing decree.

This is contrary to our holding in Fisher v. Miller, supra. Moreover, not only are

there no findings of changed circumstances sufficient to modify the custody

decree, there are no findings by the Court of Appeals that a move to Arizona

would be in Ashton's best interest. In sharp contrast is the order of the family

court which specifically finds the move would not be in Ashton's best interests





As Mother failed to demonstrate a change of circumstances warranting

a modification of the prior decree, the Court of Appeals erred in reversing the

family court's order. Accordingly, the Court of Appeals' opinion is



REVERSED.2

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur








2 In light of our holding that Mother failed to show changed circumstances

warranting modification of the custody decree, we need not address the

implications of our opinion in McAlister v. Patterson, 278 S.C. 481, 483, 299

S.E.2d 322, 323 (1981) (setting forth presumption against removal of a child

from the jurisdiction).

p.16