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2004-UP-028 - McDowell v. McDowell

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Gina Marlowe McDowell,        Appellant,

v.

Kevin L. McDowell,        Respondent.


Appeal From Horry County
James F. Fraley, Jr., Family Court Judge


Unpublished Opinion No. 2004-UP-028
Heard December 11, 2003 –Filed January 16, 2004


AFFIRMED AS MODIFIED


J. Michael Taylor, of Columbia, and Joseph O. Burroughs, Jr., of Conway, for Appellant.

Michael W. Self, of Sumter, and Robert L. Widener, of Columbia, for Respondent.

PER CURIAM:        This is a post-divorce relocation case in which Gina Marlowe McDowell (Mother) remarried and seeks to move to Raleigh, North Carolina with the parties’ two children.  The family court denied her relocation request and ordered that if Mother relocated to Raleigh, custody of the children would transfer to Kevin L. McDowell (Father).  We affirm as modified.

FACTS

The parties were married in 1989 and their two children were born in 1991 and 1993.  In 1998, a divorce decree was filed which incorporated and merged into it an agreement resolving child custody, visitation, and support.  The agreement designated Mother as the primary custodial parent for the two children.  Throughout the marriage and subsequent to the divorce, the parties have resided in Conway, South Carolina.

The agreement specified Father’s visitation schedule, which included:  1) alternating weekends from Friday at 6:00 p.m. until Monday morning; 2) one weeknight per week; 3) four weeks in the summer; 4) splitting Christmas holidays and spring break; 5) alternating Easter, Thanksgiving and Halloweens; and 6) providing Father’s Day and Father’s birthday visitation to Father.  The agreement also provided that the parties believed it is in the best interest of the children for both parents to be actively involved in their lives.   Finally, the agreement placed no restrictions on relocation. 

Mother’s new husband is a member of a band, which is based in Raleigh, North Carolina.  She brought this action seeking to modify the custody agreement to allow her to relocate to Raleigh due to her remarriage and because she believes it in the best interest of the children.  Father sought to maintain the current visitation arrangements and argued his visitation would be diminished, as would his ability to remain active in the children’s activities.  Father sought a change of custody and a restraining order prohibiting Mother from relocating with the children.

A temporary restraining order was issued prohibiting Mother from relocating.  Additionally, the order required psychological evaluations of the parties and children, and it appointed a Guardian ad Litem. 

The family court entered its final ruling enjoining Mother from relocating the children from the State of South Carolina.  The order further provided custody would change to Father if Mother moved to North Carolina.  The order also adjusted the amount of child support to be paid by Father.  Finally, the order required Mother to pay $5,000.00 towards Father’s attorney’s fees.  Mother’s motion for reconsideration was denied.

Mother filed an emergency motion to stay the decision.  The family court denied the stay.  Mother subsequently filed with this Court a petition for writ of supersedeas, which was also denied.  This appeal follows.

STANDARD OF REVIEW

“In appeals from all equity actions including those from the Family Court, the appellate court has authority to find facts in accordance with its own view of the preponderance of evidence.” Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).  This broad scope of review, however, does not require us to disregard the family court’s findings.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  Similarly, we are not obligated to ignore the fact the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony.  Smith v. Smith, 327 S.C. 448, 453, 486 S.E.2d 516, 519 (Ct. App. 1997).  “This is especially true in cases involving the welfare and best interests of children.”  Aiken County Dep’t of Soc. Servs. v. Wilcox, 304 S.C. 90, 93, 403 S.E.2d 142, 144 (Ct. App. 1991).  Moreover, our broad scope of review does not “relieve the appellant of the burden of convincing this Court that the family court committed error.”  Skinner v. King, 272 S.C. 520, 523, 252 S.E.2d 891, 892 (1979).

DISCUSSION

I.          Relocation

Mother maintains the family court erred in issuing the restraining order prohibiting her from relocating the children to Raleigh, North Carolina.  She contends the court imposed too harsh of a burden on her to prove it was in the best interest of the children to move, and the facts of the case demonstrate it was in their best interest. [1]   We disagree, and find the court correctly denied Mother’s request to relocate and conditioned her custody of the children on her remaining in Conway.

“[I]n the absence of a change of circumstances affecting the welfare of the 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, 143, 245 S.E.2d 612, 616 (1978) (quoting Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971)). “In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question.”  Hollar v. Hollar, 342 S.C. 463, 473, 536 S.E.2d 883, 888 (Ct. App. 2000).  “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 will be served by the change.”  Skinner, 272 S.C. at 523, 252 S.E.2d at 892-93.  “[T]he change of circumstance relied on for a change of custody must be such as would substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience.”  Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971).  Remarriage alone is not sufficient to warrant modification of a custody decree.  Pitt v. Olds, 333 S.C. 478, 481, 511 S.E.2d 60, 61 (1999).

“‘The welfare of the child and what is in his/her best interest is the primary, paramount and controlling consideration of the court in all child custody controversies.’”  Davis v. Davis, 356 S.C. 132, 135, 588 S.E.2d 102, 103-04 (2003) (quoting Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978)).  “Custody decisions are matters left largely to the discretion of the trial court.”  Henggeler v. Hanson, 333 S.C. 598, 602, 510 S.E.2d 722, 725 (Ct. App. 1998).  “[T]he appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court.”  Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

In terms of the procedural requirements necessary for a party’s request for relocation, our Supreme Court has held that there is a presumption in child custody cases against removing children from the state.  McAlister v. Patterson, 278 S.C. 481, 483, 299 S.E.2d 322, 323 (1982).  The courts of this state have consistently recognized the decision in McAlisterSee, e.g., Rice v. Rice, 335 S.C. 449, 453, 517 S.E.2d 220, 222 (Ct. App. 1999); Henggeler v. Hanson, 333 S.C. 598, 604, 510 S.E.2d 722, 726 (Ct. App. 1998); VanName v. VanName, 308 S.C. 516, 519, 419 S.E.2d 373, 374 (Ct. App. 1992); Eckstein v. Eckstein, 306 S.C. 167, 169, 410 S.E.2d 578, 580 (Ct. App. 1991); Sealy v. Sealy, 295 S.C. 281, 284, 368 S.E.2d 85, 87 (Ct. App. 1988); Marshall v. Marshall, 282 S.C. 534, 541, 320 S.E.2d 44, 48-49 (Ct. App. 1984).  A party may rebut this presumption by showing that the move will benefit the child.  Rice v. Rice, 335 S.C. 449, 454, 517 S.E.2d 220, 222 (Ct. App. 1999).  Therefore, “the question of whether relocation will be allowed requires a determination of whether the relocation is in the best interest of the children, the primary consideration in all child custody cases.”  Id. 

This Court has discussed the relevant factors a court may consider in making a decision regarding whether to allow relocation.  Rice v. Rice, 335 S.C. 449, 457-58, 517 S.E.2d 220, 224-25 (Ct. App. 1999).  In Rice, the parties married and had three children.  Throughout the marriage, the parties primarily resided in Conway, South Carolina.  After several separations, the parties separated a final time after approximately five and a half years of marriage.  During the separation, but before either party requested temporary relief, Mother and the children moved to Maine in an area that was twenty miles from Mother’s two brothers and her sister.  At the conclusion of the divorce proceedings, the family court granted custody of the children to Mother.  The court, however, determined that Mother’s move to Maine would jeopardize the children’s relationship with Father and that the children’s best interest would be served by requiring Mother to return from Maine.  The court ordered Mother to return to South Carolina or any other location within 250 miles of Conway as long as Father resided there. 

On appeal, this Court considered whether the family court properly required Mother to return to South Carolina or to within 250 miles of Conway.  In deciding this issue, we recognized that in this state there exists a presumption in child custody cases against removing children from the state.  Id. at 453, 517 S.E.2d at 222.  We also noted that this presumption might be rebutted by a showing that the move will benefit the child. Id. at 454, 517 S.E.2d at 222.  Because South Carolina case law provided limited guidance “as to how a court should determine whether an out-of-state move is in the best interest of the children,” this Court considered cases from other jurisdictions.  Id. at 456, 517 S.E.2d at 224-25.  After gleaning certain guiding principles from these cases, we applied the established factors to the facts of the Rice appeal.

This Court found most important that the quality of life for the children would be greatly increased by allowing Mother to relocate to Maine.  Id. at 459, 517 S.E.2d at 225.  In Maine, Mother would be able to obtain training, find better long-term employment, receive childcare from the state, and qualify for subsidies allowing the family to move into a four-bedroom apartment.  Additionally, the children would be moving closer to family, who could help care for the children while Mother was receiving her training.  Id.  The Court found Mother’s motives were purely to benefit her children and not to frustrate the visitation of Father.  Id. at 460, 517 S.E.2d at 226.  Finally, this Court found that the benefits to the children and Mother must be balanced with the detrimental effect the move would have on Father’s visitation.  Id. at 461, 517 S.E.2d at 226.  This Court stated:  “While the Father’s relationship with the children is extremely important, it is but one of the factors that goes into the sometimes nebulous best-interest determination.”  Id. at 462, 517 S.E.2d at 227.  We concluded the best interest of the children would be served by allowing relocation.

In the instant case, we find the family court properly applied the Rice factors in reaching its decision that the best interest of the children would not be served by allowing the relocation.  While Mother’s income would increase slightly, there would not be a significant difference.  Additionally, Mother attempts to articulate quality of life improvements that would result from a move, including better cultural opportunities, better schools, and better healthcare.  The record provides little evidence of any significant upgrade from the family’s current situation in Horry County if the relocation to Raleigh is allowed.  The only major change would be the benefit of being able to live with Mother’s new husband closer to his job.  Moreover, the record reflects the children are both performing well in their studies and on standardized tests in their respective Horry County schools.

Next, we agree with the court’s conclusion that neither Mother’s nor Father’s actions were motivated by an improper purpose.  Based on our review of the record, we find no evidence that Mother’s request to relocate was intended to frustrate Father’s visitation rights.  Instead, it stemmed from her desire to live with her new husband near his job.  Furthermore, we believe Father provided legitimate reasons for his opposition to the move that were based on his good-faith desire to maintain a relationship with his children. 

Any move would come at an expense to the visitation and relationship Father enjoys with his children.  While some of his weekday visitation is reduced by his need to work late, he has actively participated in the children’s lives.  He has attended lunches at school and after-school activities.  His ability to participate on a regular basis would be greatly reduced.  This detrimental aspect of the relocation was the focus of the determination by the Guardian ad Litem that relocation was not in the children’s best interest.  Father’s participation in many areas of the children’s lives is too meaningful to allow the move simply on the basis of Mother’s remarriage.  Furthermore, a move would also limit the children’s contact with the extended family members who reside in the Conway area.  Significantly, there is no such support system in terms of extended family in North Carolina. 

In her argument on this issue, Mother focuses upon Father’s sexual history and activities.   She expresses concern that he has admitted in the past to being a sex addict.  However, Dr. Saylor, the court-appointed psychologist, noted there was nothing to prevent Father from being a qualified parent.  Additionally, Mother believed he was a good Father and offered additional time in the summer to compensate him for the time lost during the school year.  As the Guardian concluded, it is hard to believe Mother would offer additional time for the children to spend with Father if his behavior was seen as a detriment to their development.

Additionally, in assessing the best interest of the children, we have specifically considered the opinions of the Guardian and Dr. Saylor with regard to relocation.  The Guardian recommended that the children not be allowed to relocate.  He felt it to be in the children’s best interest to remain in Horry County under the current custodial and visitation arrangement.  Dr. Saylor seemed to suggest that the children could benefit from the move and the move would be “compatible with their needs and best interest.”  However, when questioned further, Dr. Saylor did not give a conclusive opinion as to whether it would in fact be in the children’s best interest.  He believed that such a determination could not be done “just from a psychological evaluation.”  Instead, he agreed with the assessment that there was “no indication that relocation would be contrary to the children’s best interest.”  He also acknowledged that there would be no long-term negative impact on the children if they moved with Mother.

We recognize that “a determination of the best interest of the children is an inherently case-specific and fact-specific inquiry.”  Rice, 335 S.C. at 458, 517 S.E.2d at 225; see Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975) (In child custody cases, “the totality of circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.”).  As the family court found, the facts of this case weigh strongly in favor of maintaining the current custody and visitation arrangements with both parents residing in Horry County.  Mother’s interest in relocating is primarily based upon her remarriage, and the relocation does not have the effect of greatly improving the children’s quality of life.  Under the facts of this case, we find the best interest of the children is served by living in close proximity to Father.  See Pitt v. Olds, 333 S.C. 478, 481-82, 511 S.E.2d 60, 62 (1999) (holding remarriage alone was insufficient to modify existing decree under which Mother, as custodial parent, was required to remain in South Carolina); McAlister, 278 S.C. at 483-84, 299 S.E.2d at 323 (affirming family court’s denial of Mother’s request to move where child’s best interest and welfare would best be served by remaining in South Carolina near Father, friends, and other relatives). 

Accordingly, we find Mother has not rebutted the long-established presumption against removing the children from South Carolina.  Although Mother disagrees with this presumption, we have no authority to overrule or modify the decision in McAlisterSee Bain v. Self Mem’l Hosp., 281 S.C. 138, 141, 314 S.E.2d 603, 605 (Ct. App. 1984), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). (“Where the law has been recently addressed by our Supreme Court and is unmistakably clear, this court has no authority to change it.”); Shea v. State Dep’t of Mental Retardation, 279 S.C. 604, 608, 310 S.E.2d 819, 821 (Ct. App. 1983) (“The maintenance of a harmonious body of decisional law is essential to the efficient administration of justice.  Therefore, if the judicial system is to operate efficiently, this court must be bound by decisions of the Supreme Court.”).  Therefore, the family court’s order regarding relocation and custody is affirmed. 

II.        Child Support Calculation

Mother asserts the family court erred in considering $49.00 in payment for the children’s health insurance when calculating the child support owed by Father.  Father agrees that he does not separately pay for the children’s insurance because it is included in his union payments for his own insurance. 

In considering the insurance, the court concluded Father owed $681.00 in support. As such, we find the court incorrectly calculated the amount of child support owed to Mother.  The correct amount should be $700.26 per month in child support.  The family court’s order is modified to the extent that child support is set at $700.26 per month, with the same provisions for payment as articulated in the trial court’s order.

III.       Attorney’s Fees

Mother contends the family court erred in requiring her to pay $5,000.00 of Father’s attorney’s fees.  She maintains that this was a close case and that she also received beneficial results in the modified child support.  We find the court properly assessed a portion of Father’s fees to Mother.

In Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991), our Supreme Court established the factors for the family court to consider in awarding attorney’s fees.  The family court is to consider:  “(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; (6) customary legal fees for similar services.”  Id. at 161, 403 S.E.2d at 315. 

In the instant case, the court expressly considered the Glasscock factors.  While child support was an issue, there is little doubt that the issue of Mother’s attempt to relocate was the predominant reason for litigation.  The court found that Father obtained beneficial results in the main issue tried before the court.  Additionally, the court found the hourly rate and the time spent on the case by Father’s counsel was reasonable and consistent with rates charged in the area for similar services.  As it is clear the court considered the relevant factors, and those factors favor Father, we affirm the award of $5,000.00 attorney’s fees.

CONCLUSION

We find the family court properly found the relocation was not in the best interest of the children.  As such, the court properly denied Mother’s request to relocate and conditioned her custody of the children on her remaining in Conway.  We conclude the court’s award of attorney’s fees was proper.  We modify the court’s award of child support to correct for the error in calculation.  Accordingly, the decision of the family court is

AFFIRMED AS MODIFIED.

GOOLSBY and ANDERSON, JJ., and CURETON, A.J., concur.


[1]    In her brief, Mother raises three separate arguments regarding the relocation issue.  In the interest of clarity, we have consolidated these arguments under one heading.