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2007-UP-324 - Kelley v. Kelley

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


Michael Kelley, Appellant,

v.

Debra Kelley, Respondent.


Appeal From Aiken County
C. David Sawyer, Jr., Family Court Judge


Unpublished Opinion No. 2007-UP-324
Submitted June 1, 2007 – Filed June 15, 2007


AFFIRMED


Michael Kelley, of Aiken, pro se Appellant. 

John L. Creson, of Augusta, for Respondent.

Paige Weeks Johnson, of Aiken, Guardian Ad Litem. 

PER CURIAM:  Michael Kelley filed this divorce action against Debra Kelley.  The family court awarded custody of the parties’ two minor children to wife.  Husband appeals.  We affirm.[1]

FACTS

The parties were married when both were residents of California.  They had two sons, Sean (12) and Joshua (11).  The parties remained in California until husband’s business failed, and the parties declared bankruptcy.  The parties decided to move to Aiken, South Carolina, where husband intended to start a business with his father.  In June 2001, husband and the children left California for Aiken.  Wife remained behind to assist her family, intending to follow in a few weeks.  During several telephone calls prior to wife’s move, husband dissuaded her from joining them because the house he was renovating for the family was not complete.  Husband and children lived with husband’s parents during the renovation.  Wife testified that despite husband’s continued dissuasion, she traveled to Aiken in August.  While in Aiken, husband refused to move into an apartment while the house was being completed, stalled wife when she attempted to get a South Carolina driver’s license, was reluctant to add her to their automobile insurance, and limited her access to the parties’ vehicle.  Husband told the wife it was “too cramped” at his parents’ home, and wife returned to California to await completion of the house.  During the next few months, husband continually discouraged wife from returning.  Again, despite his attitude, she arrived in Aiken in early December, and the parties moved into the marital home. 

In February 2002, wife returned to California for gastric bypass surgery, which would have been prohibitively expensive in Aiken due to the parties’ insurance coverage.  Without her knowledge, husband filed an action for separate support and maintenance seeking, inter alia, custody of the children.  A week before wife was scheduled to return to Aiken, husband called and ordered her to live with his parents upon her return to Aiken.  Husband threatened to limit her visitation with the children to his parents’ home during the hours after school until he returned home from work.  Wife sought advice of counsel in California and learned of the pending action for divorce in South Carolina.  Wife filed for divorce in California.  The children remained in Aiken with husband. 

Numerous school witnesses testified wife remained very involved with the children, whereas husband was very controlling and had difficulties with anger management.  For instance, the school was piloting an “all students” breakfast program.  Husband did not want the children to participate and brought them to school late.  The school pursued the matter, as the children were missing instruction time in addition to breakfast.  Husband consented to adhering to the time, but refused to allow them to eat with the rest of the class.  Husband forbade the children from attending field trips, argued with a teacher about providing a particular type of composition book, required notice before the children could see the school nurse, omitted virtually all required personal information during registration, and sent the children to school without proper clothing.  When the children brought fundraising material home from school, the husband “wadded it up and sent it back” saying “he sent his children to school to learn and not to raise money for the school.”  Sean’s third-grade teacher explained:  “It seemed like everything was an issue with him.  That was negative and hard to fit and hard to do.  Just I had a really hard time with him.”  She described a class science project of planting seeds.  Sean was not permitted to water his seeds with school water, but had to bring water from home.  Husband also forbade the school from teaching his children that drugs and guns were bad.  Sean’s teacher felt that the communication with husband was so poor, she would not notify him of anything for fear Sean would be severely punished.  In a similar vein, wife’s mother testified that husband was quick to anger and spanked the children with “force [that] was extremely hard.”

Prior to the move to Aiken, wife was the primary caretaker.  While in California after the family move, wife communicated with the principal, teachers, and Sean by letters and e-mail.  When in Aiken, wife and her mother visited the school.  She notified Joshua’s teacher about his birthday and explained that, although she did not have access to a vehicle, she wanted to provide cupcakes for the class. 

The family court in Aiken held a temporary hearing in June 2002, as a result of which it awarded husband temporary custody and appointed a guardian ad litem.  Three additional hearings were held over the course of the summer of 2003, and the guardian ad litem submitted her report.  The guardian testified she interviewed over twenty individuals in preparing her report and testimony.  Her concerns about husband related to his temper, controlling behavior, some indications of depression, and the overall effects upon his ability to parent.  She was also concerned about husband’s alleged cruelty to animals, particularly in view of the fact the cruelty was committed in the presence of the children.  She concluded that it was in the best interest of Joshua and Sean to live with wife in California. 

Following the three hearings during the summer of 2003 and after the submission of the guardian’s report, the court issued a supplemental temporary order transferring custody of the children to wife and limiting husband’s visitation.  The final hearing was held in November 2003, after which the court took the matter under advisement due to the voluminous record.  In its final order, issued on May 25, 2004, the court granted the parties a divorce and awarded custody of the children to wife. 

STANDARD OF REVIEW

On appeal from the family court This broad scope of review, however, does not relieve the appellant of the burden of convincing us that the family court committed error.  Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).  Nor are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimonies.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981). 

LAW/ANALYSIS

Husband argues the family court violated his rights to due process by failing to issue the final order within thirty days.  We disagree.

Rule 26(c), SCRFC

The South Carolina Rules of Family Court provide:  “Except under exceptional circumstances, an order in a domestic relations case shall be issued as soon as possible after the hearing, but not later than 30 days thereafter.”  Rule 26(c), SCRFC.  The family court did not issue an order until more than six months after the conclusion of the hearing in this case.  We can understand husband’s angst because of the delay in the final order.  However, this case was more difficult than the ordinary case, requiring four days of testimony.  The court informed the parties at the conclusion of the final day of hearings that due to the volume of evidence and the necessity of the court reviewing it carefully it was unlikely that a final order would comply with the mandate of Rule 26(c).  Additionally, the final order itself consists of fourteen pages, and was obviously carefully crafted, particularly as it relates to husband’s visitation privileges.  The delay in filing and serving the final order resulted in little or no prejudice to husband.  See Matter of Price, 277 S.C. 169, 170, 284 S.E.2d 356, 356 (1981) (finding denial of motion to dismiss for failure to comply with Rules of Family Court prescribing maximum forty day period between filing of petition against minor and adjudicatory hearing not reversible where no material prejudice).

Custody

Husband also argues the family court erred in granting custody of the children to wife.[2]  We disagree.

In reviewing a family court order awarding custody, “[w]e are ‘guided by several principles.’”  Davis v. Davis, 356 S.C. 132, 135, 588 S.E.2d 102, 103 (2003).  “First, an appellate court may find facts in accordance with its own view of the preponderance of the evidence.Id. Second, the appellate court need not disregard the family court’s findings or ignore the fact the family court judge observed the witnesses and was in a better position to judge their credibility.  “This degree of deference is ‘especially true in cases involving the welfare and best interests of children.’”  Id. (quoting Dixon v. Dixon, 336 S.C. 260, 262-63, 519 S.E.2d 357, 358-59 (Ct. App. 1999)).  “Third, ‘[t]he 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.’”  Id. at 135, 588 S.E.2d at 103-104 (quoting Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978)).

The family court temporarily awarded custody to wife after the first three days of testimony on May 28, 2003, July 28, 2003, and August 5, 2003.  The court expressed concern that school was about to begin, and the children needed stability for the upcoming year.  At that time, most of the parties’ witnesses had testified, including a counselor, numerous teachers and school officials, and husband.  The guardian had submitted a detailed report and actively participated in the hearings.  The only remaining witnesses were the guardian and wife.  The guardian’s initial report favored custody with wife.  The school officials and guardian indicated husband suffered from anger and control issues, and the court temporarily suspended husband’s visitation.  The guardian testified the final day, stating the children seemed to be faring well in California, and her opinion had not changed.

The court stated it had “never heard teachers and school officials who were as emphatic as witnesses.”  The court considered the many confrontations between husband and school personnel in which husband expressed dissatisfaction with school policy involving the children.  The court also noted that even after two years, the children had few friends in Aiken.  Finally, the court considered the guardian’s experience, qualifications, and conclusions.  The court ordered custody to remain with wife in California, and required husband to complete anger management and parenting skills classes prior to receiving unsupervised visitation.  After review of the record, we find no error.  The court’s paramount concern in determining custody issues is to protect the best interest of the children.  The preponderance of the evidence demonstrates that it is in the children’s best interest to be with wife.

Guardian ad litem Fees

Husband finally argues the guardian failed to be impartial and submitted exorbitant fees.  We find no reversible error.

The guardian’s report listed over twenty individuals she had interviewed and her supplemental report included follow-up with the children’s California counselor.  One of the primary functions of a guardian, in a case of this type, is to make recommendations to the court as to custody and other issues.  Just because a guardian comes down on the side of one party or the other does not, in and of itself, indicate a lack of impartiality.  As an indication of the guardian’s impartiality, she recommended a consultant to perform testing who thereafter disagreed with her by indicating he thought custody should remain with husband.  The guardian concluded both parents loved the children and were able to meet their basic physical needs.  We find no evidence the guardian failed to exercise independent, impartial judgment.

We likewise find support in the record justifying the guardian’s fees.  An award of guardian fees is within the discretion of the family court.  Shirley v. Shirley, 342 S.C. 324, 341, 536 S.E.2d 427, 436 (Ct. App. 2000).  The court ordered each party to pay one-half of the guardian’s total fees of $7,071.36.  We find the guardian expended a substantial amount of time in interviewing witnesses and preparing for and participating in the hearings.  The fees are reasonable considering the complexities of the case.  Accordingly, we find no error.

AFFIRMED.

STILWELL, SHORT, and WILLIAMS, JJ., concur.


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

[2] We consolidate several of husband’s issues on appeal.