THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Harold G.
Hines, Jr., Respondent,
v.
Kristen C.
Hines, Appellant.
Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court
Judge
Unpublished Opinion No. 2012-UP-112
Heard December 6, 2011 Filed February
22, 2012
AFFIRMED
Everett P. Godfrey, Jr., of Greenville,
for Appellant.
H. Michael Spivey, and Melissa D. Spivey, of
Mauldin, for Respondent.
Robert A. Clark, of Greenville, Guardian ad
Litem.
PER CURIAM: In this family law action, Kristen C.
Hines (Wife) appeals, arguing the family court erred in issuing a divorce
decree without setting forth the specific findings of fact and conclusions of
law that support the decision. Wife further contends the family court erred in
awarding custody of the parties' children to Harold G. Hines, Jr. (Husband) as
he has a history of violence and exposed the children to other women after he
and Wife separated. We affirm.
FACTS/PROCEDURAL HISTORY
Husband and Wife married in
December 2001. Two daughters (Children) were born of the marriage; T in 2004
and H in 2005. Around June 24, 2008, the parties separated following an
altercation; the two struggled over Wife's bag of pills[1] and Wife hit her head on a doorframe. Husband claimed he found Wife with a bag
in which she kept drugs and while the two struggled over the bag, Wife hit her
head on the doorframe. Husband eventually let Wife have the bag and she
snorted some crushed pills with a straw. Wife claimed the altercation occurred
because she told Husband she wanted a divorce; he grabbed her and dragged her
outside, hitting her head on the wall and pushing her into the door jamb, and
she snorted the drugs as part of a temper tantrum.
Husband contacted the
Greenville County Sheriff's Office. Sergeant Chris Taylor, one of the officers
who responded, counted Wife's pill bottle and discovered that 76 pills were
missing from a 120-pill bottle of Lortab that was refilled four days prior.
The prescription called for her to take four pills a day. Wife refused to go
with EMS to be evaluated. Wife told Sergeant Taylor that she had snorted the
pills. Wife also told Joshua Franseen with the Sheriff's Office she had
snorted the pills, Husband had not abused her, and she was not fearful for her
life. Franseen informed Husband how to obtain an order of protection. According
to the Sheriff's Office report, the judge the officers called denied a warrant
for criminal domestic violence. Husband took Children to his father's home for
the night. Wife moved to Tennessee to live with her parents following the
parties' separation.
On June 26, 2008, Husband
filed a complaint for divorce on the statutory grounds of habitual drunkenness
based on her use of prescription drugs and requested temporary and permanent
custody of Children. Wife filed an answer and counterclaim on June 30, 2008,
requesting a divorce based on physical cruelty and custody of Children.
On June 30, 2008, the family
court held an emergency hearing due to Husband's motion for emergency temporary
relief. At the conclusion of the hearing, the court placed the children in the
custody of the South Carolina Department of Social Services (DSS), finding
based on the testimony and evidence presented, Children were in imminent and
substantial risk of danger and must be removed from the physical custody and
care of both Husband and Wife. On July 1, 2008, DSS filed its pleadings. The
guardian ad litem (GAL) moved to have Children placed in Husband's parents'
custody, and the family court granted the order on July 24, 2008. The court
issued an order on August 15, 2008, dismissing DSS's complaint and returning
Children to Husband with alternating custody week to week by agreement of the
parties. In June 2009, Husband was given temporary primary placement of
Children beginning on August 19 for T to begin attending school in Greenville
County.
At the beginning of the final
hearing, Husband moved to amend his pleading to seek a divorce based on one
year's continuous separation and Wife consented. The parties also informed the
family court they had settled all of their financial and property issues.
At trial, Husband testified
that during the marriage, Wife stayed at home with Children and he worked
full-time as well as attended school full-time. He provided that when he would
return home, he would "straighten the girls up, you know, spend time with
them, get laundry started. Either fix something to eat or go out and get
something for us to eat, you know." He indicated that Wife cooked
occasionally, about once a week. He stated "it wasn't like every night
but she has cooked." Husband provided he did all of his and Children's
laundry, as well as the household linens and towels. He testified he would
change Children's clothing when he got home from work if they were dirty. He
also stated that when he was present, changing diapers was his responsibility.
He testified that he had completed a co-parenting class when Children were in
DSS custody because it was required.
Husband provided that he has
been able to take care of Children since he has had full-time custody. He
testified he gets T up in the morning and gets her ready for school. He calls
Ashley, his girlfriend, to come over and lets H sleep while he takes T to
school. He comes home from work, plays with Children, and takes them to the
library, bowling, roller skating, or to dinner with his father. On the
weekends, they go to the park to ride bicycles. In the evening, he helps T
with her homework, which they spread out over the week. On Wednesday and
Sunday nights, Children go to programs at church, and on Sunday morning they
attend church services. He testified Children seemed to enjoy living with him
in Greenville. He provided that they have lots of fun and "they do really
well." He said that although Wife claimed otherwise, H is "a well-behaved
little four year old."
Husband testified Wife told
him that her uncle sexually molested her as a child, and when she told her
parents about it, her mother called her a "slut," and her father, who
worked for DSS in Tennessee, did not do anything about it. He also stated she
told him about her grandfather touching her inappropriately. He testified that
as far as he knew, the uncle still lived in the same town as Wife's parents. He
also indicated that everyone who lives in Wife's parents' house who smokes does
so in the house. He admitted he smokes as well but does it on his back porch.
He further provided that during his marriage to Wife, Wife's brother beat her
up while she was at her parents' house over an argument about her using drugs.
He testified Wife filed charges but her parents' bought her a Jeep and the
charges were dropped. Husband believed Wife's brother would regularly throw
parties at their parents' house at which people would get drunk and pass out.
He also stated that when Children were taken into DSS custody, Wife gathered all
of her and Children's possessions and took them to Tennessee.
Husband testified that after
he separated from Wife, he dated a woman, Leanne, for a few months. He stated
Children had met her and her son at a park one time. About three weeks after
he stopped seeing Leanne, he began dating his current girlfriend, Ashley, who
he intends to marry. He indicated he introduced her to Children a few months
later and about a month after that he found out she was pregnant with his
child. He provided that Ashley does not spend the night in his home when
Children are present.
Husband did not believe he
had an anger management problem. He stated he had never abused Wife. He admitted he had left small bruises on Children's bottoms from spanking
them. He said he now spanks them with his hand but he and Wife
previously used a spatula. He stated that he took anger management classes as
a result of a recommendation from the GAL. He provided that he learned some things
in that class. He also testified about an incident that occurred
shortly before the hearing at which a process server came to his house at 6:30
in the morning. He stated that his dogs "were going absolutely
crazy, which they seldom do unless something is wrong." He
testified that he saw a small car that he did not recognize and a person
standing his front porch in "loose attire, didn't look
professional." He admitted that he opened his door and pointed a gun in
the process server's face because he felt threatened. He admitted that he
currently has three pistols in his home.
Wife also testified at the
hearing. She testified that she currently lived with her mother and father at
their home in Clarksville, Tennessee. She stated she moved to Tennessee
because her entire support system, her family and friends, is there. She said,
"It's where I grew up. I know how to get around in Clarksville."
She indicated she lived in her parents' basement, which had a private access
and was about 1,300 square feet. She believed the space was suitable for her
and Children. She provided the home she has made for Children is
very
large, very open, very fun. We have a lot of kid's toys and we've got little
areas set up for the children all over the house. My area specifically is
specifically set up for the children. It's safe, it's very open, so they have
plenty of play area. They have their toys. They have their own bedroom that's
done all in princesses and it's very -- it's a very good environment for them.
She testified the home was in
the country so her parents had a lot of room for the farm animals they owned.
She planned for H to stay with her mother during the day and T to be at school
when she went back to work. Wife believed Children would be better off
living with her because she had taken care of them since they were born. She
stated:
I have
been up all night with them. I have been with them when they were sick. I
have changed their dirty diapers, wiped their snotty noses. I have taught them
their ABC's. We were almost reading before this happened with [T]. We are so
well-bonded and I mean they're my girls. We're so close. And I just think it
would be a tragedy to take that away from either one of us.
Wife admitted that three
people who live in her parents' house smoke, including herself. She also
provided that her family has parties at their home on holidays but no one
passes out from drinking. She testified that people do smoke at their parties
either in her father's shop area or outside. She indicated she had not lived
with her brother since they were children. She also testified about a fight
she and her brother had while she and Husband were married. She was visiting
Tennessee, and she and her brother got into an argument over a business deal
that her brother and Husband made. She said she pushed him and he pushed her
back. She admitted that he choked her and she bit his finger and stabbed him
with her keys. She provided that her brother's home is thirty miles away from
her parents' house but he is currently in Afghanistan serving in the military.
She testified her parents had bought her a car after she dropped the charges
against her brother but it was an "inspiration gift" so she could go
back to school because Husband did not provide her with adequate
transportation. She dropped the charges against her brother because she did
not want to prosecute him for something in which they were equally involved.
When asked about an uncle
molesting her, she stated, "Technically he's not my uncle, he's a cousin
that I -- he's so much older than me I called him uncle but he's my third
cousin." She indicated that she was eleven years old when the abuse
occurred. She stated that the abuse happened in her parents' home, where she currently
lives. She said the incident occurred when her extended family had gathered at
the home due to an ice storm. She provided that he lives twenty miles away
from where she currently lives and he is not allowed anywhere she will be. She
stated although no court order required him to stay away, Tennessee has no
statute of limitations for statutory rape and he knew that if he comes near
her, she will press charges. She testified that she would never allow Children
to be around him.
Wife also explained her
mother called her a slut when she was seventeen or eighteen years old because
she was acting promiscuously. She then informed her mother she was
being promiscuous because of the molestation, which her mother did not know
about. She stated that once she told her mother she was molested, her mother
apologized and said she would talk to her father to decide what they should
do. She stated that her cousin was not arrested because her parents felt it
would be more traumatic for her to sit through a court case and testify than it
would be to let him know he would be prosecuted if he ever came around her or a
young girl again. She also indicated that her grandfather, who she said
inappropriately touched her when she was two, was dead. She indicated she did
not tell her parents about that abuse until around the same time she told them
about the other abuse and he was diagnosed with Alzheimer's shortly thereafter.
Additionally, Wife testified
about her prescription drug problem. She stated she injured her back in
July 2001. She testified she was diagnosed with fibromyalgia and had a disk in
her back removed and it continued to degenerate. She indicated she was
prescribed medication typically reserved for cancer patients. She
became addicted to pain medication and forged a prescription to get more of
it. She testified she pled guilty to forging four prescriptions. She
attended several different clinics to treat her addiction. She stated she eventually
completed a program with honors. Wife also testified she had been
diagnosed with bipolar disorder and post-traumatic stress disorder and was
receiving treatment for both. She stated her treatment for bipolar
disorder was to take a medicine called Abilify to keep her on an even keel. She also sees a therapist once or twice a month for counseling and a
psychiatrist once every four weeks. She stated she was diagnosed as
being bipolar after she sought counseling due to the incident between her and
Husband.
Additionally, Wife testified
about the incident that occurred on the night of June 24, 2008. She
stated that she had just returned from Tennessee and decided that she wanted a
divorce. She informed Husband she wanted a divorce and locked him out
of the room. She then let him into the room because he was beating on
the door and she was afraid he was going to wake Children. She testified
Husband said she must be high if she wanted to divorce him and he grabbed her
bag containing Lortab[2] and Topamax[3]. She provided he pulled her around the corner as she was trying to get the
bag back, causing her to hit her ribs and breast on the wall. She
stated that he dragged her down the hallway, which skinned the tops of her feet
and knees. He then handed her bag back to her and said "'You'll never
divorce me. You'll never get the kids. I will use your drug addict, yourself,
your past against you and you'll never get the kids.'" Wife then
told Husband, "'I'll show you drug addict and you can't do anything about
it.'" Wife then "got the paraphernalia and [she] crushed the pills
up and snorted them in front of him." Wife stated that after she
finished, Husband pulled her back through the house, this time pulling her face
into the door frame, knocking a tooth loose and fracturing her jaw. She
testified Husband called police and when they arrived, she told them she did
not feel threatened because "'He's done now. He's over it now.'" Wife indicated she told the officers she did not have a drug problem
because she "was throwing a temper tantrum basically." She
stated she did not want to go to the hospital because she did not want to leave
Children but the officers had Husband take Children.
Wife testified Husband had
hurt her before that night but had not been "quite that violent" in
previous incidents; one time he had thrown her off the bed and thrown the
mattress on top of her because one of Children would not stop crying. She
indicated that another time, he had raped her the night before she had to go to
the hospital to have a procedure performed due to a miscarriage. She did not
believe Husband abused Children because he did not mean to bruise them but
"sometimes he was overly excessive with his discipline. [He] spanked the
girls with a rubber hose so that it didn't leave marks and he spanked them with
a spoon." She further stated he spanked H eleven times with a
spoon when she was fifteen months old.
T's teacher testified at the
hearing as well. She stated that T is on time, has perfect attendance, and is
well-dressed. She also indicated Husband had met with her and is a concerned
father. She provided T is a good student, is in the high group for reading,
and comes prepared.
The court-appointed counselor
also testified. She provided that she had met with Children five times. She believed Husband is an excellent father, provides a stable home, is
very consistent, and provides structure. She testified Husband is very
appropriate with Children, loves them, and keeps them in line. She
noted that Children have good manners, are compliant, show affection towards
Husband, and obey him well. She recognized that Husband "makes
mistakes like a lot of people do, but" she thought he had learned from his
mistakes.
She further testified Wife
was a good mother and loved Children as much as Husband did. She
indicated that Children are bonded to both Husband and Wife. However, she
noted Children have a lot of anxiety and "residual behaviors" when
they return from visitation with Wife. She stated Children have problems
getting back into their routine when returning from visitation because
Tennessee is in a different time zone and they stay up later when there. She
said that Children report they want to live with Wife because she does not put
them in time out. She also provided Children told her Wife told them to
tell anyone who asked that they wanted to live in Tennessee. The counselor
noted that Wife had informed her she had behavioral problems with mostly H but
also T and T reported that H misbehaves when in Tennessee. The
counselor indicated she did not have any concerns with Husband taking care of
Children. However, she did have concerns about Wife because she does
not have a house or a job. She further stated, "I worry about her
ability to care for the children as far as parent them and set limits and
boundaries and structure based upon her own report." She explained
that Wife had taken H to a counseling center in Tennessee and had reported to
the center that H has tantrums, cries, pouts, and has headaches. Wife also
told the counselor T would be in "'super brat mode'" and H would act
infantile. The counselor stated Husband and Children had not reported
any similar incidents while they were in Greenville.
The counselor believed
both parents needed to continue to learn to work together but she believed the
best placement for Children was with Husband. She also believed T was
doing well in school and was well-spoken. She thought Husband's
girlfriend, Ashley, was a good influence on Children. She testified
Ashley had not told her that she spent the night at Husband's house when
Children were present, but she believed she did and had advised Husband against
it because it violated a court order. The counselor further provided
Wife had been the primary caregiver during the marriage, with Husband providing
"an enormous amount of support," particularly in terms of paying the
bills while Wife stayed at home with Children.
The GAL's report was
introduced and stated in part:
It was
interesting to note that none of [Wife's] fifteen complaints about [Husband]
[as to why he should not have primary custody] included the horrible criminal
domestic violence alleged to have happened the night of June 24, 2008. The
evidence does not tend to support that [Husband] has been a physically abusive
husband to [Wife] nor that [Husband] has abused the children by using excessive
corporal punishment. I have found evidence supporting [Husband] may have
controlling behaviors and anger issues. Husband pulled a gun on the process
server recently.
The GAL noted that Wife lives
with her parents who she claims failed to protect her from sexual abuse from
her grandfather and a cousin as a child. Wife had stated that her
mother blamed her for the abuse. The GAL further provided that Wife
suffers from both bi-polar and post-traumatic stress disorder. The GAL
also noted that Wife and her mother both smoke in the house.
The family court also dealt
with Wife's two contempt issues against Husband; Wife asserted he violated the
court's orders by having (1) guns in the house and (2) his girlfriend overnight
in the presence of Children. The family court found Husband to be in contempt
and as a sanction denied him attorney's fees. At the conclusion of the
hearing, the family court announced its decision on the issues, including
custody. The family court stated, "I take into consideration the
Guardian's full report and [am] satisfied from all the evidence, including the
Guardian's report . . . that the best interest of the children would be served
by their being in the custody of their father." When addressing
visitation, the family court stated it did not think it was healthy to have
children exposed to the smoking that went on at Wife's home in Tennessee and
acknowledged the history of child abuse that had occurred there but found
Children did not need any special restrictions while on visitation with Wife. The
family court further stated:
I do
think that both of these parents love these girls and would try to do what's
best for them and I'm satisfied that the mother will not subject these children
to a situation that would involve sexual abuse. I do think that both of the
parents probably expose them to smoke. It's clearly not in their best
interest.
Following the hearing, the
family court issued an order awarding custody to Husband. The order stated,
"Though neither party came into this Court with 'clean hands,' the Court
finds that custody of [Children] is granted to [Husband]." This appeal
followed.
STANDARD OF REVIEW
The appellate
court reviews decisions of the family court de novo. Lewis v. Lewis,
392 S.C. 381, 390, 709 S.E.2d 650, 654-55 (2011). The appellate court
generally defers to the factual findings of the family court regarding
credibility because the family court is in a better position to observe the
witness and his or her demeanor. Id. at 390-92, 709 S.E.2d at 654-55.
The party contesting the family court's decision bears the burden of
demonstrating the family court's factual findings are not supported by the
preponderance of the evidence. Id. at 392, 709 S.E.2d at 655.
LAW/ANALYSIS
Wife argues the
family court erred in issuing a divorce decree without setting forth the
specific findings of fact and conclusions of law that support the decision.
She contends the central issue at trial was custody of Children and the divorce
decree does not set forth any specific findings of fact or conclusions of law
to support the family court's decision to award Husband custody. We agree.
Rule 26(a),
SCRFC, provides that "[a]n order or judgment pursuant to an adjudication
in a domestic relations case shall set forth the specific findings of fact and
conclusions of law to support the court's decision." See also Griffith
v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534-35 (Ct. App. 1998)
(holding the family court must make specific findings of fact on the record for
each of the required factors to be considered in making its decisions).
"However, when an order from the family court is issued in violation of
Rule 26(a), SCRFC, the appellate court 'may remand the matter to the trial
court or, where the record is sufficient, make its own findings of fact in
accordance with the preponderance of the evidence.'" Griffith, 332
S.C. at 646-47, 506 S.E.2d at 535 (quoting Holcombe v. Hardee, 304 S.C.
522, 524, 405 S.E.2d 821, 822 (1991)); see also Bull v. Smith,
299 S.C. 123, 126, 382 S.E.2d 905, 906-07 (1989) (holding an appellate court
may independently review the record to make findings of fact when the family
court's order fails to make such findings in compliance with Rule 26(a)); Bowers
v. Bowers, 349 S.C. 85, 98-99, 561 S.E.2d 610, 617 (Ct. App.
2002) ("[N]ot every violation of Rule 26(a) requires reversal[] . . . . Here, the record on appeal
is sufficient for this Court to make necessary findings of fact relating to the
award of attorney's fees.").
After reviewing the entire
order, we agree with Wife that the family court's order is lacking in regards
to custody. Nonetheless, the remedy for a lack of findings is either to remand
or to make our own findings of fact if the record is sufficient. The record is
sufficient here for us to make our own findings of fact on custody.
Wife contends the
family court erred in awarding custody of Children to Husband. We disagree.
In a child custody case, the welfare of the child and what is in the child's "'best
interest is the primary, paramount, and controlling consideration of the court.'" Davis v. Davis, 356 S.C. 132, 135, 588 S.E.2d 102, 103-04 (2003) (quoting Cook v. Cobb,
271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978)).
The family court considers several factors in determining the best
interest of the child, including: who has been the primary caretaker; the
conduct, attributes, and fitness of the parents; the opinions of third parties
(including GAL, expert witnesses, and the children); and the age, health, and
sex of the children.
Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d 386, 388 (2001). "In making custody
decisions the totality of the circumstances peculiar to each case constitutes
the only scale upon which the ultimate decision can be weighed." Parris
v. Parris, 319 S.C. 308, 310, 460 S.E.2d 571, 572 (1995).
"In South
Carolina, in custody matters, the father and mother are in parity as to
entitlement to the custody of a child." Kisling v. Allison, 343
S.C. 674, 678, 541 S.E.2d 273, 275 (Ct. App. 2001); see also S.C. Code
Ann. § 63-15-10 (2010) ("The 'Tender Years Doctrine' in which there is a
preference for awarding a mother custody of a child of tender years is
abolished."). "'The relative fitness of parents is an important
issue in custody litigation. . . . Fitness decisions normally turn on either of
two considerations; whether either parent has been the primary caretaker, or
whether either parent has engaged in conduct which would affect the welfare of
the child.'" Brown v. Brown, 362 S.C. 85, 91, 606 S.E.2d 785,
788 (Ct. App. 2004) (alteration by court) (quoting Roy T. Stuckey, Marital
Litigation in South Carolina 433 (3rd ed. 2001)). "'Although there is
no rule of law requiring custody be awarded to the primary caretaker, there is
an assumption that custody will be awarded to the primary caretaker.'" Id. (quoting Patel v. Patel, 359 S.C. 515, 527, 599 S.E.2d 114, 120 (2004)).
In Divine v.
Robbins, 385 S.C. 23, 33, 683 S.E.2d 286, 291 (Ct. App. 2009), the
mother claimed the pivotal issue in determining custody was who to blame for
the outbursts and altercations between the parties. However, the family
court's order considered the mother's behavior and the tumultuous nature of the
parties' relationship as one of many factors in its decision, as is statutorily
required in resolving custody issues. Id. (citing S.C. Code Ann. § 63-15-40
(Supp. 2008) (formerly S.C. Code Ann. § 20-7-1530) (stating that in making a
decision regarding child custody, the family court must, in addition to other
factors, give weight to evidence of domestic violence)). Further, although a
parent's morality is a proper factor for consideration, it is only relevant if
it either directly or indirectly affects the welfare of the child. Davenport
v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975). "Custody
of a child is not granted [to] a party as a reward or withheld [from a party] as
a punishment." Id.
In support of her argument
that the family court erred in awarding Husband custody, Wife points both to
Husband's anger issues and that he introduced Children to women with whom he
was involved. Wife failed to show that Husband's relationships after their
separation have impacted Children negatively. Children's counselor believed
that Ashley was a positive influence on Children. Although Husband does seem
to have some anger issues, they do not seem to be directed at Children. In
comparing the situation at his home to that at Wife's, his is the more
desirable situation. Both Children have lived in Greenville their entire lives
and one is currently enrolled in school there. Children have been living with Husband
since the temporary order and are doing well there. Wife indicates she has no
intention of returning to Greenville but instead plans to remain in Tennessee.
The testimony presented indicates Children have many more behavioral problems when
in Tennessee with Wife. Based on our review of the record, we find the family
court properly awarded Husband custody of Children. Accordingly, the family
court's decision is
AFFIRMED.
FEW, C.J., and THOMAS and KONDUROS, JJ., concur.
[1] Wife had previously battled a prescription drug
habit.
[2] Lortab is used to relieve moderate to severe pain.
[3] Topamax is used to treat seizures in people with
epilepsy. It is also used to prevent migraines.