The May 2, 2018 Court of Appeals opinion of Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (Ct. App. 2018), is one of the rare published opinions approving true joint physical custody. Further the opinion approves a post-trial reformation of an equitable distribution agreement based upon what the court described as a “clerical error.”
The Clark divorce litigation essentially commenced when the parties were involved in a domestic dispute that resulted in Wife’s arrest. At a temporary hearing shortly thereafter the court awarded the parties alternating week custody of their young daughter.
When trial commenced 14 months later, the parties had been unable to communicate to resolve personal property issues because Wife was still operating under a “no contact” order stemming from her criminal domestic violence charges. The court gave the parties time to reach a settlement on that issue, which resulted in a court-approved agreement to provide each party the property designated on a joint list, and with the court to determine who had to pay how much to equalize the value of the personal property. That list indicated that Husband would keep a twelve-foot trailer. However the list the parties provided the trial judge listed the trailer twice. When the trial judge determined how much needed to be paid to equalize personal property distribution he thus counted the trailer twice, including the values in Husband’s column in his supplemental order.
The parties proceeded to try the issue of custody with Husband seeking to continue the 50/50 custody arrangement and Wife seeking primary custody. At trial, the guardian ad litem, the child’s psychotherapist, and the child’s teachers all testified that the child was doing well and happy in the shared custody arrangement. Both the guardian and the psychotherapist noted difficulties the parties had making joint decisions for the child. Mother acknowledged Husband was a good father, but contended that she had been the child’s primary caretaker. Their was some evidence that Husband encouraged the child’s relationship with Wife but that Wife discouraged the child’s relationship with Husband.
The family court’s final order continued the 50/50 custody arrangement while giving Wife final decision making authority. Husband filed a post-trial motion based on the court’s double counting of the trailer and the family court granted that motion, amending the supplemental order to include the trailer only once. Wife then appealed the joint custody order and the court’s granting Husband’s motion to amend the equitable distribution order.
The Court of Appeals affirmed the 50/50 custody order, explaining that this was one of the rare cases in which shared physical custody was justified. From the language of its opinion it is arguable that the Court of Appeals considered these facts almost required joint physical custody:
While joint custody is generally disfavored, this arrangement worked well for Child for the fourteen months before the final hearing. This custody arrangement has now continued from the time of the hearing (May 2015) until present, which is an additional twenty-nine months, amounting to a total of forty-three months or about three and a half years—close to half of Child’s life. The teachers, parents, GAL, and therapist all testified about how well Child was doing. Many witnesses commented on how happy and well-adjusted she was at the time of the final hearing. We find the passage of time and the good reports on Child’s welfare and mental adjustment to the situation comprise exceptional circumstances warranting joint custody. While disfavored, no evidence has been presented to allow the family court or this court to rule differently.
(emphasis added).
The Court of Appeals further approved the family court’s decision to amend the equitable distribution order. While acknowledging that “the family court does not have the authority to modify court ordered property divisions,” the court classified the double listing of the trailer as a clerical error. It noted that Wife did not contend that Husband owned more than one trailer. As Rule 60(a), SCRCP, permits trial courts to correct clerical errors at any time, the Court of Appeals determined that the family court’s revision of its equitable distribution award was proper. In approving this revision, the Court of Appeals noted the rushed nature of the property division negotiations:
The order included the trailer in two different places, thus accounting for it twice. Changing the order to only include the trailer once was not a change in the scope of judgment but was merely a correction of a clerical error. Accordingly, the family court was allowed to correct this. The fact that the parties reached the settlement on the division of marital property after being sent out in the hall for an hour to negotiate at the beginning of the final hearing likely contributed to the parties submitting forms that had been hastily prepared or had not been double checked. Therefore, the family court did not err in correcting the order to only account for the twelve-foot trailer one time instead of two.
I often have concerns about reaching rushed agreements in the midst of trial and leaving out important items. Clark would appear to offer a remedy for such mistakes if they can be classified as “clerical errors.”
