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2004-UP-079 - Morgan c. Morgan

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Anna Mae Morgan        Appellant,

v.

David Wayne Morgan, Defendant        Respondent,

And,

Martha Ann Bartlett, Third Party Defendant        Respondent.


Appeal From Spartanburg County
Timothy M. Cain, Family Court Judge


Unpublished Opinion No. 2004-UP-079
Submitted December 8, 2003 – Filed February 12, 2004


AFFIRMED IN PART AND DISMISSED IN PART


Anna Mae Morgan, Pro Se, for Appellant.

David Wayne Morgan and Martha Ann Bartlett, both Pro Se, for Respondents.


PER CURIAM:  Anna Mae Morgan (“Mother”) appeals from a family court order, arguing the family court erred by:  1) finding her in contempt of a divorce decree; and 2) ordering her to pay tutoring expenses.  Additionally, Mother asks this Court to modify her visitation award.  We affirm in part and dismiss in part.

FACTUAL/PROCEDURAL BACKGROUND

Mother and Father have two children, Ashley and David. [1]   Following Mother and Father’s divorce, Father’s mother, Martha Ann Bartlett (“Grandmother”), received custody of David, with Mother having weekend, as well as summer and holiday visitation. 

The divorce decree, in pertinent part, contained the following provisions:  1) Mother was required to make copies of family pictures and deliver them to Father; 2) Mother was required to return several personal videotapes to Father; 3) Mother, Father, and Grandmother were enjoined from harassing one another; 4) Mother could speak with David over the telephone; however, Mother was prohibited from initiating telephone contact with David; 5) Mother was required to provide Grandmother with a calendar of Mother’s work schedule six months in advance; and 6) Mother was encouraged not to reside with paramours overnight during her visitations with David. 

Following the decree, Grandmother and Father each filed rules to show cause, alleging Mother violated the divorce decree. Specifically, Grandmother alleged Mother was in contempt for: 1) initiating telephone calls with David; 2) failing to provide a calendar of her work schedule six months in advance; and 3) continuing to reside with her paramour during visitations with David. Grandmother requested Mother’s visitation be restricted and requested Mother pay an additional twenty-five dollars per week for David’s tutoring. Father’s complaint alleged Mother was in contempt for failing to make copies of the family pictures and return his personal videotapes.

The family court’s order found Mother in contempt for failing to:  1) make copies of the family pictures; 2); return Father’s personal videotapes; and 3) provide Grandmother with a calendar of her work schedule six months in advance.  Furthermore, while holding Mother was not in contempt of the divorce decree for exposing David to her paramour, the family court modified the divorce decree, altering Mother’s visitation schedule and restricting David’s visitation with Mother to daytime hours.  Additionally, the order required Mother to pay one-half of all David’s tutoring bills.  Mother appeals.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its view of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).  This broad scope of review does not, however, require this court to disregard the findings of the family court.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). 

LAW/ANALYSIS

I.       Contempt

Mother argues the family court erred by holding her in contempt for failing to:  1) make copies of family pictures and provide them to Father; 2) return Father’s personal videotapes; and 3) provide Grandmother with her work schedule six months in advance.  We deem these issues abandoned.

“[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.”  Glasscock, Inc. v. U.S. Fidelity and Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001). 

Mother’s brief contains little discussion as to the issues on appeal and no citation to authority.  Thus, we deem these issues as abandoned.  See Glasscock, Inc., 348 S.C. at 83, 557 S.E.2d at 691. [2]  

II.               Visitation

Mother argues this Court should modify the family court’s visitation award because, subsequent to the family court’s order, she married the paramour.  This issue is not properly before us.

Initially, we note, Mother has not argued the family court abused its discretion by altering her visitation award.  Thus, the only issue presented is whether this Court should find Mother’s circumstances have changed such that her visitation award should be modified.

For a court to modify an existing custody or visitation award, there must be a showing of changed circumstances occurring subsequent to the entry of the decree.  Heckle v. Heckle, 266 S.C. 355, 358, 223 S.E.2d 590, 591 (1976).  However, a motion to modify a custody or visitation award based on a change in circumstances cannot be made, at the first instance, to this Court.  See S.C. Code Ann. § 14-8-200(a) (Supp. 2002) (stating the Court of Appeals’ jurisdiction is limited to appellate jurisdiction).  Rather, the motion must be made in the family court.  See S.C. Code Ann. § 20-7-400(A)(1)(e) (1985) (stating the family court has original jurisdiction over claims of child custody); S.C. Code Ann. § 20-7-420(30) (Supp. 2002) (“The family court shall have exclusive jurisdiction:  [t]o hear and determine any questions of support, custody, separation, or any other matter over which the court has jurisdiction, without the intervention of a jury . . . .”).

In Grandmother’s rule to show cause, Grandmother argued Mother was in contempt of the divorce decree for residing overnight with the paramour during her visitations with David.  The family court ruled the divorce decree only recommended Mother not reside with paramours during her visitations with David.  Thus, the family court did not hold Mother in contempt.  However, the family court ruled the best interests of David would be served by altering Mother’s visitation award and restricting Mother’s visitation with David to daylight hours. 

Subsequently, Mother married the paramour.  However, no evidence exists within the record indicating Mother either planned to marry the paramour prior to the modification or discussed the possibility with the family court.  

Mother claims her marriage to the paramour is a change of circumstances warranting a visitation modification.  However, her claim is not properly before this Court.  See S.C. Code Ann. § 14-8-200(1) (stating the Court of Appeals’ jurisdiction is limited to appellate jurisdiction).  Rather, this claim must first be brought before the family court.  Thus, Mother’s remedy, if any, is to petition the family court for modification of its order.  Accordingly, this portion of the appeal is dismissed for lack of subject matter jurisdiction.

III.    Tutoring

Mother argues the family court erred by ordering her to pay one-half of David’s tutoring bills because she is capable of tutoring David, and thus, third party tutors are unneeded.  We disagree.

In all determinations involving children, the best interests of the children are the paramount concern.  See e.g.  Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978) (“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.”);  Ex Parte Stull, 276 S.C. 512, 513, 280 S.E.2d 209, 210 (1981) (holding in deciding whether to allow a change in a child’s surname, the family court should grant the request only if the change promotes the child’s best interests and welfare);  South Carolina Dep’t of Soc. Servs. v. Vanderhorst, 287 S.C. 554, 561, 340 S.E.2d 149, 153 (1986) (holding in proceedings to terminate parental rights, the paramount concern is the best interests of the child).

In Grandmother’s rule to show cause, she asserts David needs tutoring.  To support her position, Grandmother testified David was having difficulty in school, and his school requested he receive at least two hours of tutoring a week. Grandmother further testified David’s school provided her with a list of qualified tutors, and the hourly rate for the tutors is twenty-five dollars.

Initially, we note, Mother does not dispute David needs tutoring.  Furthermore, Mother does not argue that she should not be required to contribute to David’s tutoring because she is without financial means.  Rather, Mother only asserts she is capable of tutoring David, and thus, third party tutors are unneeded.

Although the record indicates Mother has the equivalent of a high school diploma and has completed some college work at Spartanburg Technical College, no evidence exists within the record indicating Mother is a qualified tutor or that she has experience tutoring children.  Thus, given the testimony of Grandmother, we agree with the family court that David’s best interests are served by having him tutored by qualified individuals as recommended by his school.    Consequently, the family court did not err.

CONCLUSION

For the foregoing reasons, we AFFIRM the family court’s order, and DISMISS Mother’s motion to modify her visitation award. 

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concurring.


[1] Ashley reached the age of majority prior to Mother and Father’s divorce.  Thus, Ashley was not a subject of the custody award.

[2] Mother’s entire brief fails to cite authority for her arguments.  Thus, generally we would deem all of her issues as abandoned on appeal.  However, given this Court’s duty to zealously guard the rights of minors, we will address the merits of the Mother’s arguments to the extent they involve the best interests of David. See Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000) (stating “procedural rules are subservient to the court’s duty to zealously guard the rights of minors”); Ex parte Roper, 254 S.C. 558, 563, 176 S.E.2d 175, 177 (1970) (holding “where the rights and best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties”).