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2009-UP-003 - Perry v. Perry

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

Laura C. Perry, Appellant,

v.

Coby G. Perry, Respondent.


Appeal From Edgefield County
Kellum W. Allen, Family Court Judge


Unpublished Opinion No. 2009-UP-003
Heard December 2, 2008 – Filed January 5, 2009


AFFIRMED


Christian G. Spradley, of Saluda, and Katherine Carruth Link, of West Columbia, for Appellant.

Robert L. Widener, of Columbia, for Respondent.

Melissa L. Franklin, of Aiken, for Guardian Ad Litem.

PER CURIAM:  In this appeal from the denial of a request to transfer child custody, appellant, Laura C. Perry (Mother), asserts the family court erred in: (1) denying her request for sole custody of the children; (2) denying her request to designate her as the primary custodial parent; (3) denying her request to lift the residency restriction; (4) failing to address the issue of child support and failing to award child support; and (5) making factual findings contrary to the weight of the evidence.   We affirm.

1.  As to Mother's request to transfer custody, the evidence reveals the children are doing well academically and otherwise despite the parties' alleged inability to communicate and cooperate under the current joint custody arrangement.  Accordingly, we find Mother has failed to meet her burden of establishing a change in circumstances sufficient to warrant a transfer of custody.  See Pinckney v. Hudson, 294 S.C. 332, 333, 364 S.E.2d 462, 462 (1988) ("The standard for determining whether custody should be changed is whether there is a substantial change in circumstances affecting the welfare of the child."); Pitt v. Olds, 333 S.C. 478, 481, 511 S.E.2d 60, 61 (1999) ("A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child will be served by the change."); Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d 325 (1971) ("[T]he change of circumstance relied on for a change of custody must be such as would substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience."); Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) ("[T]he appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court.").

2.  As to whether the family court erred in denying Mother's request for primary placement of the children, we find no error.  Although the issue of primary placement was reserved in the divorce decree, the issue was only raised to the court in Mother's counterclaim and was not otherwise originally reserved in the joint custody agreement or its addendum.  Thus, a showing of a sufficient change in circumstances is warranted for a determination on this issue.  Accordingly, as we find Mother failed to meet her burden of establishing a change in circumstances affecting the welfare and best interests of the children, we find no error in the trial court's denial of primary placement at this time.  See Glanton v. Glanton, 314 S.C. 58, 60-63, 443 S.E.2d 810, 811-13 (Ct. App. 1994) (finding mother's outlook and approach to child's education since the last court order have adversely affected the child so as to warrant a change in primary placement).

3.  As to the residency restriction, the family court applied the correct best interest analysis in determining that relocation was not in the best interests of the children.  While we note that lifting the residency restriction may enhance Mother's life, we further find support for the family court's determination that lifting the residency restriction would not otherwise enhance the children's lives so as to be in their best interests.  Accordingly, we find Mother failed to meet her burden of establishing that relocation is in the best interests of the children.  See Latimer v. Farmer, 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004) ("In all custody cases, including relocation cases, the controlling considerations are the child's welfare and best interests.").

4.  With regard to child support, the family court, in reaffirming the joint custody agreement, denied Mother's request for support.  While an award of child support is subject to modification upon a showing of changed circumstances and is not determinative upon a change of custody, Mother failed to establish a sufficient change in circumstances to warrant a modification of the existing agreement.  See Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006) (finding husband's lack of concrete figures constitutes insufficient proof of a change in the children's needs or circumstances to modify the existing child support order).  Furthermore, we note the settlement agreement provides that Father alone bears the additional costs of various medical and educational expenses associated with the children.  Thus, based upon the absence of evidence of a sufficient change of circumstances, the family court's denial of child support was not in error.

5.  As to Mother's assertion that the family court's findings of fact were contrary to the weight of the evidence, this issue is without merit as the family court's findings are amply supported by the evidence in the record.  Although Mother and Father presented different accounts of various occurrences, we are mindful of the deference given to the family court regarding witness testimony and credibility. See Latimer, 360 S.C. at 380, 602 S.E.2d at 34 (noting the degree of deference given to the family court regarding witness credibility is especially critical in cases involving the welfare and best interests of the child).  Accordingly, we find no reversible error.

AFFIRMED.

WILLIAMS, PIEPER, and GEATHERS, JJ..