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2012-UP-151 - Brandenburg v. Pysher


In The Court of Appeals

Patricia Michelle Brandenburg, Respondent,


Victor Edward Pysher, Jr., Appellant.

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

Unpublished Opinion No.  2012-UP-151
Heard February 14, 2012 – Filed March 7, 2012


Rebecca R. West, of Lexington, for Appellant.

Katherine Carruth Goode, of Winnsboro, and Kenneth M. Matthews, of Columbia, for Respondent.

PER CURIAM:  Victor Pysher, Jr., (Father) appeals from the family court's order granting Patricia Brandenburg's (Mother's) request for modification of the parties' child support agreement, arguing the trial court erred in: (1) finding Mother met the increased burden of proof necessary to modify the parties' child support agreement, and (2) determining the parties' agreement would have the effect of leaving the minor child without support after the eldest child's emancipation.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to the modification of the agreement:  Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) (holding that on appeal from the family court, this court reviews factual and legal issues de novo); Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011) (noting that although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony); id. at 385, 709 S.E.2d at 651 (stating appellant bears the burden of convincing this court the family court erred in its findings); Miles v. Miles, 393 S.C. 111, 120, 711 S.E.2d 880, 885 (2011) (clarifying that while the burden to prove entitlement to a modification of spousal or child support is a substantial one, the same burden applies whether the family court order in question emanated from an order following a contested hearing or a hearing to approve an agreement); Ables v. Gladden, 378 S.C. 558, 566, 664 S.E.2d 442, 446 (2008) (determining that a child support obligation is continuous, thus, the doctrine of laches does not apply to bar enforcement of a child support order); Sharps v. Sharps, 342 S.C. 71, 76-77, 535 S.E.2d 913, 916 (2000) (noting that generally courts have held changes in circumstances within the contemplation of the parties at the time the decree was entered do not provide a basis for modifying either an alimony allowance or a child support award; however, "there are some future changes [i.e., termination of child support based on the emancipation of a child] which may be in contemplation of the parties at the time of the decree but, due to other considerations, cannot be addressed at that time in the divorce decree"); Henderson v. Henderson, 298 S.C. 190, 196, 379 S.E.2d 125, 129 (1989) (holding the family court is "empowered to modify child support upon a proper showing of a change in either the child's needs or the supporting parent's financial ability"); Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983) ("[F]amily courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies."); Major v. Major, 277 S.C. 318, 321, 286 S.E.2d 666, 668 (1982) (rejecting the father's argument that the mother waived her claim to retroactive relief by failing to request assistance and holding a parent may not waive a child's right to support by agreement or otherwise); Blackwell v. Fulgum, 375 S.C. 337, 343-44, 652 S.E.2d 427, 430 (Ct. App. 2007) (holding when one of multiple children reaches majority, the family court does not extend the parent's support obligation on behalf of the emancipated child, but simply continues the existing support agreement for the benefit of the other minor children until such time as the court, upon request of the supporting parent, can calculate a proper reduction in the support obligation based on a showing of changed circumstances); Smith-Cooper v. Cooper, 344 S.C. 289, 295, 543 S.E.2d 271, 274 (Ct. App. 2001) (determining that where an agreement is clear on its face and unambiguous, "the court's only function is to interpret its lawful meaning and the intent of the parties as found within the agreement"); Harlan v. Harlan, 300 S.C. 537, 543, 389 S.E.2d 165, 169 (Ct. App. 1990) (modifying the order of the court to provide the father may petition for a modification of child support upon the emancipation of the oldest child, and the family court may decide whether a change in circumstances has been demonstrated under the facts as they then exist); Corley v. Rowe, 280 S.C. 338, 342, 312 S.E.2d 720, 723 (Ct. App. 1984) (ruling the question of child support is largely within the discretion of the family court, and the decision will not be disturbed on appeal absent an abuse of discretion); 7A C.J.S. Attorney & Client § 197 (2004) ("[O]ne who undertakes presentation of one's own case has no greater right than other litigants but must expect and receive the same treatment and consideration as if represented by an attorney and must be prepared to accept the consequences of one's own incompetence, mistakes, and errors.").

2. As to child support:  Rule 208(b)(1)(D), SCACR (requiring citation to authority in the argument section of an appellant's brief); Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review."); First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (noting when a party fails to cite authority or when the argument is simply a conclusory statement, the party is deemed to have abandoned the issue on appeal); Chastain v. Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) (holding when an issue is raised to, but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e), SCRCP, motion).


FEW, C.J., and HUFF and SHORT, JJ., concur.