Martin v. Halverson

• Court: Court of Appeals of South Carolina
• Decided: March 10, 2008
• Docket: 2008-UP-152
• Status: Unpublished

Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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Donald Martin, Appellant,

v.

Audrey Halverson, Respondent.

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Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge

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Unpublished Opinion No. 2008-UP-152
Submitted March 3, 2008 – Filed March 10, 2008

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AFFIRMED

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John D. Elliott, of Columbia; for Appellant.

William E. Bird, of Columbia; for Respondent.

PER CURIAM:  Donald Martin appeals certain provisions of a family court order concerning his visitation with his daughter.  We affirm.[1]

FACTS AND PROCEDURAL HISTORY

Reilly Ann Martin was born to Donald Martin and Audrey Halverson on July 5, 2000, while Halverson was separated from her husband.  Although Halverson and her husband later reconciled, Martin visited with Reilly regularly after her birth.

In April or May of 2002, Halverson informed Martin she, her husband, and Reilly were moving to Newport News , Virginia.  Because of this development, Martin brought suit in July 2002 to establish his paternity and ensure continued access to the child.

At a pendente lite hearing in the Lexington County Family Court on July 19, 2002, the parties informed the court they had reached an agreement under which they would have joint custody of Reilly with Halverson having primary custodial care and Martin being allowed to visit with her in Virginia at his own expense and with proper notice.  They also settled the issue of child support.  Because, however, they were unable to agree on other visitation terms, the family court set visitation on a temporary basis, granting Martin two one-week periods in the Fall of 2002, and provided a guardian ad litem would be appointed for Reilly if Martin and Halverson could not reach a mutually acceptable agreement concerning visitation between Martin and Reilly.

After the temporary hearing, the parties reached an agreement under which Martin would see Reilly for a week at a time when his work schedule allowed.  The arrangement continued until August 2004, when Reilly, while visiting relatives in Michigan with Martin, fractured her arm at a fast food restaurant playground.  After this occurrence, Halverson restricted Martin’s visitation with Reilly, prompting him to bring another lawsuit, this time to establish visitation rights with Reilly in accordance with her age and school activities and taking into account the distance between the parties. 

Although the parties eventually agreed on visitation terms for Thanksgiving, Christmas, and spring vacation, they could not agree on terms for weekends and summer vacation.  In addition, they disagreed on transportation arrangements.

After taking testimony, the family court issued an order on February 3, 2006, requiring among other things that, for any three-day weekend visit in South Carolina, Halverson would take Reilly to Columbia and Martin would return her to Newport News at the end of the visit.  In addition, Martin was granted three weeks of visitation in the summer with Reilly.

Martin moved to alter or amend the order, asking the family court to reconsider transportation arrangements and requesting additional time to visit with Reilly in the summer.  After a hearing on June 12, 2006, the family court, by order dated August 10, 2006, declined to change the transportation arrangements, but granted Martin an additional week of visitation in the summer.  This appeal followed.

STANDARD OF REVIEW

The determination of visitation is within the broad discretion of the family court, and, unless that discretion is abused, a visitation order will not be disturbed on appeal.  Cudd v. Arline, 277 S.C. 236, 239, 285 S.E.2d 881, 883 (1981).  The family court may in its discretion impose on a noncustodial parent such conditions and restrictions on visitation as it finds proper.  Frye v. Frye, 323 S.C. 72, 76, 448 S.E.2d 586, 588 (Ct. App. 1994).  “The privilege of visitation must yield to the good of the child and may be denied or limited where the best interests of the child will be served thereby.”  Porter v. Porter, 246 S.C. 332, 340, 143 S.E.2d 619, 624 (1965).

LAW/ANALYSIS

1.  Martin first contends the family court should have required both parents to meet halfway for most of the visits.  We disagree. 

In support of his position, Martin cites Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114 (Ct. App. 2004), in which this Court ordered the father of three children to pay transportation expenses for visits between him and the parties’ two younger children, characterizing his his move to California with their oldest child as “unilateral.”  Id. at 532, 599 S.E.2d at 123.  Martin also argues the family court overlooked the facts that he is the only parent who is employed and he therefore does not have a flexible schedule. 

Although these arguments support Martin’s desire to meet Halverson halfway to exchange Reilly for visits, they do not warrant reversal of the family court order.  First, Patel, the case on which Martin relies, involved the issue of travel expenses incurred in the exercise of out-of-state visitation, not the issue of inconvenience to the noncustodial parent.  Moreover, there is nothing in the record to suggest that Halverson moved to Virginia to impair Martin’s relationship with Reilly.  In addition, under the terms set by the family court, both Martin and Halverson have to travel one time from their respective home states and back to transport Reilly for visitation during three-day weekends.  Finally, the arrangement Martin desires reduces neither the burden nor the distance for either party.  Under these circumstances, we find the family court acted within its discretion in refusing to require the parties to meet halfway when exchanging Reilly for visits with Martin.

2.  Martin also contends the family court granted him insufficient time with Reilly in the summer.  He points out that Reilly is now in school and has thirteen weeks of summer vacation.  Citing Arnal v. Arnal, 363 S.C. 268, 609 S.E.2d 821 (Ct. App. 2005), aff’d as modified on other grounds, 371 S.C. 10, 636 S.E. 864 (2006), he emphasizes that he would be better able to learn more about Reilly and her needs if given more time with the child to do so.  We, however, find no abuse of discretion in the family court’s decision to limit Martin to four weeks of visitation in the summer with Reilly.  See Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996) (stating the issue of visitation is within the discretion of the family court). 

Based on the evidence in the record, we find the family court fashioned a summer visitation schedule that was in Reilly’s best interest.  See id. (“When awarding visitation, the controlling consideration is the welfare and best interest of the child.”).  As Halverson noted, during extended periods of visitation with Reilly, Martin would have to work, which would require him to put Reilly in some type of childcare environment.  Halverson further testified that, the one time she attempted to enroll Reilly in daycare, Reilly became confrontational.  Moreover, Halverson indicated she is amenable to increasing the summer visitation when Reilly is older.  We therefore hold that, considering Martin’s work schedule, Reilly’s age, and other pertinent factors, the summer visitation granted by the family court is reasonable and in Reilly’s best interest.[2]

AFFIRMED.

ANDERSON, SHORT, and THOMAS, JJ., concur.

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[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  Halverson requested reinstatement of the family court’s original order, under which Martin received only three weeks of visitation in the summer; however, she did not file an appellant’s brief on this issue.  We therefore hold the request is not properly before this Court and decline to address it.  See Rules 208(a)(1) and (b)(1)(B), SCACR (setting forth deadlines requirements for the appellant’s initial brief, including a statement of each of the issues presented for review); id. Rule 21l (stating the deadlines and requirements for final briefs); id. Rule 231 (“Whenever it appears that an appellant or a petitioner has failed to comply with the requirements of these Rules, the clerk shall issue an order of dismissal, which shall have the same force and effect as an order of the appellate court.”).