The November 20, 2024 Supreme Court opinion in Grungo-Smith v. Grungo, reversed the Court of Appeals ruling in Grungo-Smith v. Grungo, 438 S.C. 508, 884 S.E.2d 219 (Ct. App. 2023), and reinstated the family court’s order granting primary custody to Father.
Grungo-Smith stems from an action filed by Mother in 2019, seeking to modify the parties’ 2012 5/2/2/5 custody agreement, which became unworkable as Mother frequently relocated. At trial both parties sought primary custody. The family court, after asking the guardian to make custody recommendations, awarded custody to Father and Mother appealed. The Court of Appeals held the family court gave too much weight to the guardian’s testimony and erred in seeking the guardian’s custody opinion absent “extraordinary circumstances.” It reversed the family court but did not grant Mother primary custody. Instead, it held neither party had proven a substantial change of circumstances (a view my blog on the case found unconvincing) and reinstated the original custody order. Father sought, and was granted, certiorari.
The Supreme Court reversed the Court of Appeals and reinstated the family court’s award of primary custody to Father. It first held the Court of Appeals erred in its holdings regarding the propriety of the family court seeking the guardian’s custody recommendation and the weight to give the guardian’s testimony. It held “[t]here is no basis upon which to read an ‘extraordinary circumstances’ requirement into [S.C. Code] section 63-3-830(A)(6),” which prohibits a guardian from making a recommendation on custody “unless requested by the court for reasons specifically set forth on the record.”
The Supreme Court noted:
[T]he family court justified that request on the record, explaining that the guardian’s recommendation “would be helpful because of the disparity in the testimony, and [n]either side present[ed] any middle ground to the Court [since both parents requested primary custody].” The family court likewise explained it could accept or reject the guardian’s recommendation, and it would merely use the recommendation as one more piece of evidence to consider in making its custody determination.
The procedures followed by the family court and the guardian precisely tracked the express dictates of section 63-3-830(A)(6). No “extraordinary circumstances” were required. The court of appeals erred in inserting such a requirement into the statute.
The Supreme Court then, weighing the evidence de novo, held that the family court’s award of custody to Father was justified. Its opinion gives significant weight to the guardian’s testimony, noting “neither party has alleged the guardian’s report or testimony is inaccurate or biased in any way, and the express dictates of the statute were followed here, we find it proper to consider the guardian’s evidence in conjunction with the remaining evidence.”
The opinion, while explicitly stating both parents care deeply for the children and the decision was not intended to criticize either parent, details the facts supporting the award of custody to Father:
Mother has not demonstrated any error in the family court’s factual findings, most importantly, those involving credibility determinations. …
Mother’s second husband committed (and was convicted of) a heinous crime against one of the children, and Mother’s third husband verbally abused both children with apparent impunity. Moreover, Mother and Smith’s [Mother’s third husband] verbal altercations caused considerable tension with and distress to the children while at Mother’s house. Equally concerning, Mother and Smith apparently belittled Father to the children, calling him offensive and inappropriate names. In contrast to the discordant atmosphere at Mother’s house, the children were, by all accounts, objectively and noticeably more comfortable at Father’s house.
It is equally significant Father demonstrated considerable maturity and stability during the tenure of the joint custody arrangement. While Mother and the court of appeals faulted Father for failing to exercise his full right to custody under the joint custody arrangement, it is clear his reason for doing so was because he was putting the children’s interests before his own. Father’s decision under the circumstances to let the children sleep at Mother’s house on school nights rather than strictly enforcing the joint custody agreement reflects favorably upon him.
The factual issues regarding Mother’s second and third husband are not noted in the Court of Appeals opinion, an opinion that I believed gave insufficient weight to undisputed factual findings supporting the change of custody to Father. With knowledge of these new factual findings, it becomes an even less close case. These children clearly were unhappy in Mother’s custody—one of them even commented on my initial blog to express his displeasure with the Court of Appeals opinion.
This Supreme Court opinion provides useful guidance on when and how the family court seeks custody recommendations from the guardian and makes it more likely family court judges will do so.
