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2005-UP-112 - Patterson v. Patterson

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

Kimberly Patterson,        Appellant,

v.

Yancey Patterson,        Respondent.


Appeal From Cherokee County
Georgia V. Anderson, Circuit Court Judge


Unpublished Opinion No. 2005-UP-112
Submitted February 1, 2005 – Filed February 14, 2005


AFFIRMED


William G. Rhoden, of Gaffney, for Appellant.

Yancey Patterson, pro se, of Blacksburg, for Respondent.

PER CURIAM:  This is an appeal of the family court’s decision in favor of Yancey Patterson (Father) on Kimberly Patterson’s (Mother) motion for reduction in child support.  We affirm.1

FACTS

Yancey Patterson, Father, and Kimberly Patterson, Mother, were formerly married.  In 2002, Father received custody of the couple’s three children.  Mother received standard visitation rights “contingent upon [Mother] providing [Father] with monthly verification that she has seen and met with her mental health doctor and/or counselor.”  The family court gave Father the right to suspend visitation if Mother did not comply with this order. 

Shortly thereafter, Mother was admitted to inpatient treatment at Charter Hospital for alcohol abuse.  Upon leaving Charter, Mother was arrested for her third driving while intoxicated (DUI) offense, though she was only convicted of a DUI 2nd.  She then admitted herself into Patrick B. Harris Hospital.  Following her inpatient treatment, Father suspended Mother’s visitation with the children.  Mother also successfully completed an outpatient treatment program at Cherokee County Alcohol Commission. 

In August 2003, Mother made a motion for reduction of child support and a contempt motion against Father for not allowing her to see the children.  Husband answered and counterclaimed for child support arrearages and to terminate or restrict Mother’s visitation rights.  At a temporary hearing, the trial court found Mother had significant alcohol abuse problems.  However, it also recognized that “it appears these problems have subsided and she is continuing counseling.” 

At the final hearing, following Mother’s presentation of her case, the family court found in favor of the Father without the Father presenting any evidence.  The trial court determined that Mother “is capable of obtaining employment and is not entitled to a reduction or termination of her child support.”  However, while the original support rate of $127.15 per week was to continue to accrue, Mother only had to pay $50 per week until the final disposition of her social security disability claim.  This appeal followed. 

STANDARD OF REVIEW

In appeals from the family court, this court has authority to find the facts in accordance with our own view of the preponderance of the evidence. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).  This broad scope of review, however, does not require us to disregard the findings of the trial court.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  We are mindful that the trial court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).

LAW/ANALYSIS


I. Involuntary Dismissal

Mother claims the trial court erred in granting a directed verdict2 sua sponte for Father at the conclusion of her case.  We disagree.

Mother never objected to the family court’s action on the record filed with this court.  “It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).  Accordingly, this issue is not preserved for our review.

II. Child Support

Mother claims the trial court erred in not reducing her child support obligation even though she was no longer employed.  We disagree. 

The trial court can modify prospective child support awards as circumstances warrant, but usually only upon a showing of changed circumstances, including the ability of a supporting parent to pay.  Calvert v. Calvert, 287 S.C. 130, 137, 336 S.E.2d 884, 888 (Ct. App. 1985).  Furthermore, “to warrant a modification in . . . child support, the change of circumstances must be either substantial or material.”  Id. at 138, 336 S.E.2d at 888.  The amount of child support awarded is within the sound discretion of the trial court whose decision will not be disturbed on appeal absent an abuse of discretion.  Millis v. Millis, 282 S.C. 610, 613, 320 S.E.2d 66, 67 (Ct. App. 1984). 

Mother testified that a doctor from Charter told her she could not work, though she provided no affidavit to that effect.  Susan Lineberger, Mother’s counselor, also testified that Mother’s “psychiatric limitations would make it almost impossible for anything except a sheltered workshop setting, you know, where they just work for an hour or two a day.”  However, Lineberger made a contrary statement to the unemployment office.  Mother discounted her own witness’s contrary statement to the unemployment office that Mother was “okay to return to work on 3-11-2003” by arguing that “Lineberger is not a doctor.  She’s a counselor.”  Mother also admitted to signing numerous documents at the unemployment office stating that she was able to work. 

Although Mother had no income sources other than her family, they contributed significant amounts towards her child support payments and housing expenses.  The trial court determined that they could continue to do so.  At the time of trial, Mother was also pursuing a social security disability claim, which the trial court recognized had already been denied twice. 

Based on this evidence, the trial court was “not satisfied [Mother was] disabled and [could not] work.”  The trial court was in a better position to evaluate the parties’ credibility and assign comparative weight to their testimony.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).  Therefore, we find the trial court acted within its discretion in deciding to retain the current child support obligation.  The order of the trial court contemplated Mother’s situation and provided a reasonable procedure to review and evaluate any changed circumstances in the processing of her disability claim.  In its order the court set up a review every ninety days of the status of Mother’s social security claim.  We will not disturb this decision. 

CONCLUSION

For the reasons stated herein, the trial court’s decision is hereby

Affirmed.

GOOLSBY, HUFF and STILWELL, JJ., concur.


1 We decide this case without oral argument pursuant to Rule 215, SCACR.

2 For a bench trial it would have been an involuntary nonsuit rather than a directed verdict.