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2004-UP-475 - Lockard v. Lockard

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Linda Lockard, Respondent,

v.

Spencer Lockard, Appellant.


Appeal From Dorchester County
William J. Wylie, Jr., Family Court Judge


Opinion No. 2004-UP-475
Heard September 14, 2004 – Filed September 16, 2004


AFFIRMED


Robert N. Rosen, of Charleston, for Appellant.

John Loy, of Summerville, for Respondent.


PER CURIAM:  In this domestic relations matter, Spencer Lockard (Husband) contends the family court erred in (1) failing to award joint custody of the two children; (2) granting inadequate visitation to Husband; and (3) awarding attorney’s fees to Linda Lockard (Wife).  We affirm.

FACTS

Husband’s marriage to Wife lasted about thirteen years, during which time the couple produced two sons: Spencer Lee Lockard, II, born April 15, 1990, and Bradford Parks Lockard, born July 6, 1993.  Throughout the children’s younger years, Wife stayed at home and acted as their primary caretaker while Husband worked.  As the children grew, Husband’s lifelong anger problems and belief in strict discipline began to undermine the parties’ marriage.  Though the couple sought to repair their broken relationship through marriage counseling, the effort ultimately proved fruitless.

As a consequence of the ongoing problems, Wife filed for divorce on April 11, 2001, seeking custody of the parties’ two minor children.  Husband filed an answer and counterclaim requesting sole custody of the children, or in the alternative, joint custody.  Prior to a final hearing on the merits, the family court entered a temporary order awarding Husband and Wife joint physical custody of the children, with custody alternating every two weeks in the marital home.

During the final hearing before the family court, testimony was presented as to several occasions when Husband lost control of his anger, acting aggressively toward Wife and others.  Although Husband admitted he had problems with his temper, he elicited testimony from other witnesses to show the temporary joint custody arrangement had been a boon to the children’s maturation and well-being.  By final order and decree of divorce entered September 13, 2002, the family court awarded Wife custody of the children and granted Husband “standard visitation” with restrictions.  The court also awarded Wife $10,000 in attorney’s fees.  This appeal follows.

LAW/ANALYSIS

I.  Custody

Husband contends the family court erred “by failing to award the Husband and Wife 50/50 joint physical custody” of the children.  We disagree.

On appeal from the family court, this court has jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 244-45 (Ct. App. 1999).  This tribunal, however, is not required to disregard the family court’s findings.  Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct. App. 1999).  Likewise, 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.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).  “Because this court is not afforded the opportunity for direct observation of the witnesses, we must accord great deference to the trial court’s findings where matters of credibility are involved.”  Pountain v. Pountain, 332 S.C. 130, 135, 503 S.E.2d 757, 760-61 (Ct. App. 1998).  “This is especially true in cases involving the welfare and best interests of children.”  Id. at 135, 503 S.E.2d at 761.

In child custody controversies, the welfare and best interests of the children are the primary, paramount, and controlling considerations of the court.  Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978).  The family court must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child.  Pountain, 332 S.C. at 136, 503 S.E.2d at 760.  Moreover, in reaching a determination as to custody, the family court should consider how the custody decision will impact all areas of the child’s life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects.  Kisling v. Allison, 343 S.C. 674, 678-79, 541 S.E.2d 273, 275 (Ct. App. 2001).  Indeed, in making custody decisions, “the totality of circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.”  Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975).

In view of the totality of the circumstances that must be considered, we remain mindful that joint custody should only be ordered under exceptional circumstances.  See Scott v. Scott, 354 S.C. 118, 125, 579 S.E.2d 620, 623 (2003) (stating that “‘divided custody is usually harmful to and not conducive to the best interest and welfare of the children’”).  Given our courts’ well-considered reluctance toward awarding joint custody, we find the family court did not err in declining to award joint custody in the case at bar.  Indeed, the family court’s decision finds ample support in the record.  Husband’s frequent outbursts of anger and repeated efforts to minimize Wife’s relationship with the children provide ample reasons for declining to award such a heavily disfavored form of custody.

II.  Visitation

In the alternative, Husband asserts the family court erred in awarding Husband less than “standard” visitation.  We disagree.

When awarding visitation, the controlling consideration is the welfare and best interest of the child.  Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996).  As with child custody, the issue of child visitation falls within the discretion of the trial judge, and his findings will not be disturbed on appeal absent an abuse of discretion.  Id.  The original Final Order and Decree of Divorce issued by the family court awarded Husband two weeks of summer visitation.  However, the Final Order and Decree of Divorce was supplemented and amended in an order dated November 12, 2002, providing:

Visitation shall be amended to include:

a.  Two (2) additional weeks of summer visitation, for a total of four (4) weeks summer visitation for the Father.
b.    Weekday visitation during the off week for the Father.
c.    Visitation on each child’s birthday.
d.    Telephone visitation for either parent, without interference.

The record reveals nothing indicating the family court strayed beyond its discretionary authority in awarding Husband four weeks of summer visitation.

III.  Attorney’s Fees

Husband maintains that, if he is successful on the joint custody issue, he should not have to pay Wife $10,000 in attorney’s fees.  We affirmed the family court’s determination regarding custody.  Thus, Husband did not prevail on the custody issue.  Alternatively, Husband asserts that the family court abused its discretion in awarding Wife $10,000 in attorney’s fees.

An award of attorney’s fees will not be overturned absent an abuse of discretion.  Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).  Before awarding attorney’s fees, the family court should consider: (1) each party’s ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; and (4) the effect of the attorney’s fee on each party’s standard of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992); Heins v. Heins, 344 S.C. 146, 160, 543 S.E.2d 224, 231 (Ct. App. 2001).  In determining the amount of attorney’s fees to award, the court should consider: (1) the nature, extent, and difficulty of the services rendered; (2) the time necessarily devoted to the case; (3) counsel’s professional standing; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the customary legal fees for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991); Shirley v. Shirley, 342 S.C. 324, 341, 536 S.E.2d 427, 436 (Ct. App. 2000).

Having reviewed the award of attorney’s fees in light of the applicable factors, we find no abuse of discretion in the award.

CONCLUSION

Accordingly, the order of the family court is

AFFIRMED.

GOOLSBY, ANDERSON, and WILLIAMS, JJ., concur.