Court of Appeals rejects father’s numerous challenges to custody and support modification decision

Posted Wednesday, August 26th, 2020 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Child Support, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The August 26, 2020 Court of Appeals case of Whitesell v. Whitesell, 431 S.C. 575, 848 S.E.2d 588 (Ct.App. 2020), finds the Appellant making numerous legal arguments, a few of them quite novel. They don’t succeed.

Whitesell stems from a custody and support modification action. At the time of the parties’ divorce they were both students. They agreed to Mother having primary physical custody and to deviate downward from the child support guidelines as both parties were attending school. It anticipated child support being modified when the parties resumed normal employment.

Five years later Mother filed for a child support increase and Father counterclaimed to modify custody. Four months prior to trial the court ordered the parties to undergo psychological evaluations, which were not completed at the time of trial. At trial a different judge increased Father’s support obligation, denied his request to modify custody, and ordered him to pay a bit less than half of Mother’s attorney’s fees. Father appealed.

Father argued that before making findings of fact the family court should have determined witness credibility and made specific credibility findings. Father alleged Mother’s overall lack of credibility rendered the family court’s factual findings inaccurate. That’s certainly a novel argument and one the Court of Appeals rejected. The family court noted both parties at fault for the breakdown in the co-parenting relationship. However it noted Father’s extreme surveillance of Mother as one cause of this breakdown. Father is a private investigator and his surveillance included hiding under her house, placing a GPS tracker on her and her boyfriend’s vehicles, placing cameras around Mother’s vacation home, and secretly recording her phone calls with him and the children. Father got into a physical altercation with Mother’s boyfriend, resulting in assault and battery charges. The Court of Appeals held this behavior also explained the co-parenting breakdown. The Court of Appeals noted the family court’s sixteen page order contained sufficient factual findings that it was not having to “grope in the dark” to understand the family court’s reasoning. Accordingly it found no requirement to make the specific credibility determinations Father demanded.

Father also argued a culmination of errors “combined to prejudice him and deprive him of a fair trial.” The Court of Appeals rejected these allegations while noting “the family court’s decision was driven by a view of the record with which we agree.” The first of these errors was proceeding with trial before the psychological evaluations were completed. The family court addressed this directly, stating the court would hold the record open if it determined the evaluations were necessary for its final decision. After the trial and after considering all the evidence, the family court found Mother and Father were both capable parents, there was no evidence of any mental health disorder, and it did not need the psychological evaluations to rule on custody. The court found the parties would benefit from working with a co-parenting counselor, ordered the psychological evaluations to proceed, and instructed the report from the evaluations be delivered to the co-parenting counselor. Based on these decisions by the trial judge, the Court of Appeals held the trial court did not overrule the prior order requiring these evaluations.

Father argued the deteriorating co-parenting relationship was a change of circumstance that should have resulted in a modification of custody. However, given the finding that Father was somewhat responsible for this breakdown, the Court of Appeals held this change did not warrant modifying custody.

Father argued that the parties’ deviation from the previous parenting plan was a change of circumstance. The Court of Appeals agreed with the family court that Father did not establish a deviation from the parenting plan that would constitute a substantial change of circumstances. Father took issue with some of the family court’s factual findings regarding his income and assets. The Court of Appeals found those findings supported by the record.

Father argued that Mother’s abusive text messages were evidence of a mental health disorder. The Court of Appeals noted there was no evidence that Mother had such as disorder and explained these communications as an explicable, if not ideal, reaction to Father’s behavior. It rejected Father’s allegation that Mother failed to consult with him. It held the family court was justified in not awarding Father custody despite one of the children’s preference to live with him, as the award of custody would not be in the children’s best interests.

Father argued the family court gave insufficient weight to Mother’s allegedly poor supervision of the children. The one instance of such poor supervision Father proved was allowing the children to drive a golf cart unattended. The Court of Appeals noted Father’s continued surveillance of Mother and held this lone incident was insufficient to prove poor supervision.

Father argued he should have been allowed to recross the CPA as Mother brought up new issues on redirect. The Court of Appeals held the family court did not abuse its discretion in denying this request.

Father argued that Mother alienated the children from him by refusing to allow them to attend family events. The Court of Appeals held Mother was generally feedable with extra visitation for family events and tried to accommodate Father and his extensive family. That she did not always do so was not evidence of alienation. Father made issue of a time when both parties tried to pick the children up from summer camp. The Court of Appeals found both parties at fault in this kerfuffle.

Father argued child support was set too high because Mother’s day care expense was not adjusted to account for any qualified child care tax credits. The Court of Appeals held this issue unpreserved. Father argued he should not have to pay child support through the clerk of court. Given conflict between the parties on the timeliness of his payments, the Court of Appeals disagreed.

Father objected to Mother testifying about his surveillance because she had not sought specific relief regarding it. The Court of Appeals agreed with the family court that this testimony was relevant on the issue of the co-parenting relationship breakdown.

Finally Father disputed the award of $20,000 in attorney’s fees to Mother, arguing she had not pled for attorney’s fees and that the family court did not properly weight the attorney fee factors. The Court of Appeals’ opinion quotes portions of Mother’s complaint that sought fees, so Father argument on that issue isn’t clear. The Court of Appeals held the family court properly weighed factors such as successful results and ability to pay $20,000 of Mother’s $44,000 in fees.

I admire my colleague Thomas McDow for his willingness to make novel legal arguments. Although he was not Father’s only appellate attorney, he was making novel legal arguments before those attorneys were born so I assume these “stretchers” are his. But generally novel arguments legal fail–especially when brought in piecemeal fashion–and they didn’t succeed here.