Noojin v. Noojin

789 S.E.2d 769, 417 S.C. 300, 2016 S.C. App. LEXIS 79
CourtCourt of Appeals of South Carolina
DecidedJuly 6, 2016
DocketAppellate Case No. 2014-001573; Opinion No. 5423
StatusPublished
Cited by8 cases

This text of 789 S.E.2d 769 (Noojin v. Noojin) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Noojin v. Noojin, 789 S.E.2d 769, 417 S.C. 300, 2016 S.C. App. LEXIS 79 (S.C. Ct. App. 2016).

Opinion

GEATHERS, J.:

Ashley Noojin, Ph.D. (Mother) appeals the family court’s order finding her in contempt and requiring her to pay Frank Noojin’s, M.D. (Father) attorney’s fees and costs. She argues the family court erred in (1) finding she willfully violated a court order; (2) excluding an exhibit; (3) limiting cross-examination of an expert witness; and (4) ordering her to pay Father’s attorney’s fees and costs and failing to award her attorney’s fees and costs. We affirm.

[303]*303FACTUAL/PROCEDURAL HISTORY

Father and Mother married in 1993 and divorced on April 8, 2011. Father is a surgeon, and Mother is a licensed clinical psychologist. Two children (Son and Daughter, collectively Children)1 were born of the marriage.

Prior to the final divorce hearing, the couple reached a child custody agreement wherein they shared joint custody, with Mother as the primary custodial parent and Father having frequent “nights of contact and visitation with the children.” The agreement outlined a “phase-in” visitation schedule from December 18, 2010, until February 19, 2011, with the regular schedule to begin on March 1, 2011. The regular schedule allotted visitation every other weekend and one evening dinner on the alternate weeks. The agreement provided Children could extend (1) the weekends to include Thursday or Sunday night when Friday or Monday was a holiday and (2) the weeknight dinner to an overnight visit. The agreement outlined specific visitation schedules for holidays, birthdays, summer vacations, and spring break.

Additionally, the agreement provided:

The visitation provided to Father in this Agreement shall take into consideration each child’s wishes and desires in this regard, however, the children’s wishes shall not be controlling unless otherwise specifically provided in this Agreement-The parties agree to engage in family counseling with a therapist mutually agreeable to the parties. They shall attend family counseling once or twice per month and Father will use his weekday time with the children for this counseling, if necessary.

(emphasis added). In addition to the visitation schedule, the agreement provided:

Each party shall exert every reasonable effort to maintain free access and unhampered contact between the children and each of the parties and to foster a feeling of affections between the children and the other party. Neither party shall do anything which may estrange the children from the [304]*304other party or injure the children’s opinion as to his/her mother or father or which may hamper the free and natural development of the children’s love and respect for the other party.

(emphases added). The parties also agreed to (1) refrain from making disparaging remarks about the other parent in the presence of Children and discourage third parties from doing so; (2) consult each other regarding Children’s education, illness, health, welfare, and “other matters of similar importance affecting” Children; and (3) refrain from having physical or verbal confrontations or allowing another to do so in the presence of Children. On December 15, 2010, the family court approved the agreement and incorporated it into the final decree of divorce (the divorce order).

In February 2013, Father filed a complaint for contempt and the parties proceeded to a three-day contempt hearing.2 At the hearing, Father testified that after the standard visitation began on March 1, 2011, he did not receive regular visits. He outlined the limited visitation he received from 2011 to 2013. Specifically, in 2011,3 according to Father, he received one of the twenty dinners; one full weekend and four partial weekends of the twenty weekends; none of the five days allotted for spring break; one of the two days allotted for Father’s Day; none of the five days allotted for Thanksgiving; and two of the ten days allotted for Christmas. In 2012, Father received one of the twenty-three dinners; two weekends of the twenty-five weekends; none of the three days for spring break; five hours of the two days allotted for Father’s Day; and two days of the eight days allotted for Christmas. The contempt hearing began on April 30, 2013, and from January to April 2013, Father received one of the eight dinners, none of the eight weekends, and none of the three days allotted for spring break.4

[305]*305Following the hearing, the family court found Mother in contempt for failure to comply with the divorce order and ordered her to pay Father $41,375.84 in attorney’s fees and costs. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in finding Mother in contempt?

2. Did the family court err in excluding a letter Father wrote to Children on December 13, 2010?

3. Did the family court err in limiting cross-examination of a witness?

4. Did the family court err in awarding attorney’s fees and costs?

STANDARD OF REVIEW

“In appeals from the family court, [appellate courts] review[ ] factual and legal issues de novo.” Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). “[WJhile retaining the authority to make our own findings of fact, we recognize the superior position of the family court judge in making credibility determinations.” Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). “Stated differently, de novo review neither relieves an appellant of demonstrating error nor requires us to ignore the findings of the family court.” Id. at 388-89, 709 S.E.2d at 654 (emphasis removed). Further, a finding of contempt rests within the sound discretion of the family court. DiMarco v. DiMarco, 393 S.C. 604, 607, 713 S.E.2d 631, 633 (2011). “Such a finding should not be disturbed on appeal unless it is unsupported by the evidence or the judge has abused his discretion.” Id.

LAW/ANALYSIS

I. Willful Contempt

Mother raises several grounds as to how the family court erred in its finding of contempt. We have reduced those arguments to their analytical essence.

[306]*306At the outset, we note that because the family court was in a better position to assess the credibility and demeanor of the witnesses, we defer to the family court as to any alleged error regarding the specific factual findings. After observing these parties over the course of a three-day hearing, the family court was in a better position to evaluate their credibility and assign comparative weight to their testimony. See S.C. Dep’t of Soc. Servs. v. Mary C., 396 S.C. 15, 26, 720 S.E.2d 503, 509 (Ct. App. 2011) (holding it is proper to defer to the family court even if conflicting evidence is presented on appeal as long as ample evidence in the record supports the family court’s findings and conclusions); Pinckney v. Warren, 344 S.C. 382, 387-88, 544 S.E.2d 620, 623 (2001) (holding the appellant carries the burden of demonstrating error in the family court’s findings of fact); Lewis, 392 S.C.

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Bluebook (online)
789 S.E.2d 769, 417 S.C. 300, 2016 S.C. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noojin-v-noojin-scctapp-2016.