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
Douglas N. Yarborough, Respondent,
Anita J. Yarborough, Appellant.
Richard W. Chewning, III, Family Court Judge
Unpublished Opinion No. 2005-UP-601
Heard October 12, 2005 –Filed November 30, 2005
AFFIRMED as MODIFIED
Jon T. Clabaugh, Jr. and Kathryne A. Shelton, of
Columbia, for Appellant.
Cynthia B. Castengera of
Newland, N.C., and Michael Jeffcoat, of Columbia, for Respondent.
PER CURIAM: Anita J. Yarborough appeals the family court order: denying her custody of the minor children, limiting her visitation, calculating child support payments, dividing the debt and marital assets, refusing alimony and rejecting her demand for assistance with attorneys’ fees and guardian ad litem fees. We affirm as modified.
Anita and Douglas Yarborough were lawfully married on June 20, 1993 in
Originally, Anita had custody of their children, Adam and Katilin, and
An Ex Parte Order granting an Emergency or Expedited Hearing was filed on January 15, 2003.
The family court granted custody to the father, concluding this would be in the best interest of both children. The mother was granted telephone visitation, Christmas, summer and spring break visitation. Furthermore, she is allowed to see her children for reasonable periods of overnight visitation when she is in
STANDARD OF REVIEW
In family court appeals, this court may find facts in agreement with its own view of the preponderance of the evidence. Lanier v. Lanier, 364 S.C. 211, 612 S.E.2d 456 (Ct. App. 2005); Nasser-Moghaddassi v. Moghaddassi, 364 S.C.182, 612 S.E.2d 707 (Ct. App. 2005). Regardless of our broad scope of review however, we are not required to disregard the family court’s findings. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct. App. 1999); Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct. App. 1999). Nor do we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate the credibility and assign comparative weight to the witnesses’ testimony. Lacke v. Lacke, 362 S.C. 302, 608 S.E.2d 147 (Ct. App. 2005); Murdock v. Murdock, 338 S.C.322, 526 S.E.2d 241 (Ct. App. 1999); see also
Anita Yarborough argues that the family court erred in awarding custody to Douglas Yarborough. We disagree.
The most important and controlling factor in every custody dispute is the best interests of the children. Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct. App. 2000). Parapella v. Parapella, 340 S.C. 186, 189 531 S.E.2d 297, 299 (Ct. App. 2000). However many aspects must be considered to determine the best interests of a child and thus the outcome of a child custody case. Pirayesh v. Pirayesh, 359 S.C. 284, 596 S.E.2d 505 (Ct. App. 2004). “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.” Shirley, 342 S.C. at 330, 536 S.E.2d at 430. “Additionally, the court must assess each party’s character, fitness and attitude as they impact the child.”
Extensive testimony was presented regarding the parenting habits and practices of both parents. Jack Justice, a licensed social worker, and Sheila M. Robinson, the Guardian ad Litem, testified. Justice, a therapist at the
II. Limiting visitation
Anita Yarborough appeals the visitation parameters set forth by the trial court, specifically the time and type of visitation and transportation costs.
As always “when awarding visitation, the controlling consideration is the welfare and best interest[s] of the child[ren].” Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996). “A family court may impose upon a non-custodial parent such conditions and restrictions on visitation privileges as the court in its discretion, thinks proper.” Frye v. Frye, 323 S.C. 72, 448 S.E.2d 586 (Ct. App. 1994). “[D]etermining and limiting visitation rights is in the broad discretion of the trial judge, and in the absence of a clear abuse of such, the order granting, denying or limiting visitation rights will not be disturbed.” Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704 (1970). Furthermore this court must recognize that “[v]isitation arrangements are not allowed that involve excessive shuttling of the children between parents.” Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969). Thus, when the best interests of the children are compromised by the family court’s visitation schedule, we have the ability to use de novo review. Arnal, 363 S.C. at 291, 609 S.E.2d at 833 (Ct. App. 2005).
Anita chose to live in Humble,
III. Calculating child support
Anita argues that the family court erred in imputing her child support obligation. We disagree.
S.C. Code Ann. § 20-7-90 (1976) provides in part:
(A) Any able-bodied person capable of earning a livelihood who shall, without just cause or excuse, abandon or fail to provide reasonable support to his or her spouse or to his or her minor unmarried legitimate or illegitimate child dependent on him or her shall be deemed guilty of a misdemeanor . . . .
The factors to be considered in establishing child support obligations include: both parents’ income, ability to pay, education, expenses, and assets, as well as the facts and circumstances surrounding each case. Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706 (1989). “The award should be an amount that the parent can pay and still meet his or her own needs.” Smith v. Delaney, 286 S.C. 583, 334 S.E.2d 821 (Ct. App. 1985).
The judge used the South Carolina Child Support Guidelines to calculate the amount of child support Anita owed each month. According to Guidelines, Section III (A) (5):
If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent.
Prior to moving to
IV. Division of debt and marital assets
Anita Yarborough contends that the family court erred in the division of the marital property and debts. We disagree.
“The doctrine of equitable distribution is based on a recognition that marriage is, among other things, an economic partnership.” Mallett v. Mallett, 323 S.C. 141, 150, 473 S.E.2d 804, 810 (Ct. App. 1996). “Upon dissolution of the marriage, marital property should be divided and distributed in a manner which fairly reflects each spouse’s contribution to its acquisition, regardless of who holds legal title.” Morris v. Morris, 335 S.C. 525, 531, 517 S.E.2d 720, 723 (Ct. App. 1999). In making an equitable distribution of marital property, the family court must, among other things: (1) identify the marital property, both real and personal, to be divided between the parties; (2) determine the fair market value of the identified property; (3) apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and (4) provide for an equitable division of the marital estate, including the manner in which the distribution is to take place. Noll v. Noll, 297 S.C. 190, 375 S.E.2d 338 (Ct. App. 1988).
The only marital property owned by the parties is real property located at
Anita asserts that the family court erred by not awarding her alimony. We disagree.
No issue may be raised for the first time on appeal, instead it must have been raised at trial in order to preserve the issue for appeal. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997). Even if the issue were preserved, “[t]he decision to grant or deny alimony is within the sound discretion of the family court judge, whose decision will not be disturbed on appeal absent an abuse of that discretion.” Hatfield v. Hatfield, 327 S.C. 360, 364, 489 S.E.2d 212, 215 (Ct. App. 1997) (citing Williamson v. Williamson, 311 S.C. 47, 426 S.E.2d 758 (1993)).
The S.C. Code Ann. § 20-3-130(C)(Supp. 2003) states:
The family court must consider and give weight in such proportion as it finds appropriate to the following factors in determining an award of alimony: (1) duration of the marriage and ages of the parties at the time of the marriage and divorce; (2)physical and emotional condition of the parties; (3) educational background and need for additional education of the parties; (4) employment history and earning potential of the parties; (5) standard of living established during the marriage; (6) current and reasonably anticipated income of the parties; (7) current and reasonably anticipated expenses and needs of the parties; (8) marital and non-marital properties of the parties; (9) custody of the children; (10) marital misconduct or fault that affects the economic circumstances of the parties or contributes to the break-up of the marriage; (11) tax consequences of the reward; (12) prior support obligations of the parties; and (13) other factors the court considers relevant.
Anita and Douglas were married for approximately ten years, living together for about eight and a half years. Both were around thirty-one years of age at the time of the divorce. The physical and emotional state of each party was not discussed at trial, although it was evident that both were physically healthy and neither one wanted to reconcile the marriage. Anita testified that she graduated from college in 1993, although she never specified what college she attended or what degree she received. Anita and Douglas have employment history, and each have the potential to find and continue employment based on their job history. The standard of living as established during the marriage has remained unchanged for both parties. After the birth of their children, Anita did not work.
VI. Attorneys’ fees and guardian ad litem fees
Anita appeals the failure of the family court to award her attorneys’ fees. Additionally, she attacks the division of the Guardian ad Litem fees.
The award of attorney’s fees is at the sound discretion of the family court. Stevenson v. Stevenson, 295 S.C. 412, 368 S.E.2d 901 (1988). In deciding whether to award attorneys’ fees, the family court should consider: (1) the parties’ ability to pay their own fees; (2) the beneficial results obtained by counsel; (3) the respective financial conditions of the parties; and (4) the effect of the fee on each party’s standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992); Shirley, 342 S.C. 324, 536 S.E.2d 427. Our Supreme Court has identified the following factors for determining a reasonable attorney’s fee: (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; and (6) customary legal fees for similar services. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991).
Although she is unemployed, Anita has marketable job skills.
An award of GAL fees lies within the sound discretion of the family court judge and will not be disturbed on appeal absent an abuse of that discretion. Shirley, 342 S.C. 324, 341, 536 S.E.2d 427, 436. In the present case, the GAL completed an independent, balanced, and impartial investigation, as is required by the court. The GAL reduced her rate to $110.00 per hour. She conducted home visits in
Accordingly, the family court’s ruling is
AFFIRMED as MODIFIED.
ANDERSON, HUFF and WILLIAMS, JJ., concur