THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Terri Lynn Porter,
Appellant,
v.
Robert Scott Porter,
Respondent.
Appeal From Oconee County
Rolly W. Jacobs, Family Court Judge
Unpublished Opinion No. 2003-UP-030
Submitted December 10, 2002 Filed
January 8, 2003
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Cheree Gillespie, of Clemson; for Appellant
Julian L. Stoudemire, of Seneca; for Respondent.
PER CURIAM: In this domestic case, Terri
Lynn Porter (the mother) appeals several aspects of the family courts order.
The issues on appeal include numerous findings of fact by the family court,
the award of divorce to both the mother and Robert Scott Porter (the father)
on the ground of one years continuous separation, the award of joint custody
of the parties minor child with primary placement awarded to the father, the
family courts failure to order the father to pay retroactive child support
to the mother, and the family courts failure to order that the fathers name
be removed from the birth certificate of another child of the mother. We affirm
in part, reverse in part, and remand. [1]
FACTS
The parties married in August 1997, but lived together
for approximately four years prior to the marriage. The mother has three
minor daughters, Sara, born in 1991, Haley, born in August 1994, and Faith,
born in January 1997. Of the three minor children, only Faith is the
fathers biological child. Haley is not the fathers biological child;
however, she was born during the time the mother and father were cohabitating
before they married, and the father is designated as her father on her birth
certificate.
The parties separated in July 1998, and the mother
commenced this action against the father in September 1998. After the mother
filed suit, the parties reconciled briefly and separated for the final time
in November 1998. In her complaint, the mother sought a divorce on the
statutory grounds of physical cruelty or, in the alternative, habitual drunkenness
or drug abuse. The mother also sought child custody and support for
Haley and Faith, alleging the father has acknowledged two children have been
born of their union.
The father answered, admitting to so much of the
mothers complaint as alleged two children were born to the parties union.
He otherwise denied the mother was entitled to the relief sought in her
complaint. The father also counterclaimed against the mother, seeking
a divorce on the ground of adultery and an order awarding him joint custody
of the two children.
In a pretrial order dated August 2, 1999, the family
court required the father to inform the mothers attorney in writing by August
16, 1999, if he desired a paternity test for Haley. There is no indication
in the record that the father ever sought such testing. Thereafter, by temporary
order dated February 24, 2000, the family court awarded the mother continued
custody of Faith and ordered the father to pay her child support in the amount
of $108.00 per week commencing on January 1, 2000. The family court
also restrained the father from harassing the mother, appointed a guardian ad
litem to represent Faith, and declined to order visitation for the father pending
the outcome of an investigation by the Department of Social Services of allegations
of child abuse.
In April 2000, the mother petitioned the family
court for a rule to show cause why the father should not be held in contempt
for failure to remit court-ordered child support payments. The family
court issued the rule to show cause and scheduled a hearing on the matter for
July 12, 2000. The hearing was thereafter rescheduled and subsumed into
the final hearing on the merits of the underlying divorce action.
The family court held the final hearing on July
20, 2000. At the onset of the hearing, the mother sought and received
leave to amend her complaint to request a divorce on the ground of one years
continuous separation. The mother also unsuccessfully sought to amend
her pleadings to include a request for divorce on the ground of adultery.
The family court found, however, that the mother could present evidence
of the fathers post-separation adultery to establish any effect it might have
had on the break-up of the marriage.
By order dated September 29, 2000, the family court
did the following: awarded both parties a divorce on the ground of one years
continuous separation, awarded the parties joint custody of Faith with primary
placement with the father and visitation for the mother, ordered the mother
to pay child support to the father in the amount of $437.00 per month, declined
to award either party attorney fees, declined to hold the father in contempt
for failing to make child support payments as mandated in the prior order, and
ordered that the amount of any arrearage the father had accumulated would be
applied as a credit to the mother against her child support obligation until
such arrearage was exhausted.
LAW/ANALYSIS
1. On appeal, the mother asserts error in nineteen
separate findings of fact by the family court. We decline to address separately
the propriety of each of the contested findings; nevertheless, we note virtually
all the mothers challenges involve findings of credibility, veracity, and character
of witnesses at trial, most particularly the mother herself. The family court
found the mother was less than forthcoming in a number of ways, including her
use of illicit drugs, her misleading statements to the guardian ad litem regarding
her cohabitation with a paramour during the pendency of the litigation, and
her role in encouraging or remaining silent as to her two older daughters unfounded
allegations of sexual abuse against the father and other adult males. In addition,
the family court found the mother denied the father visitation with Haley in
an effort to punish him and made exaggerated claims of domestic violence against
him in order to gain advantage over him for purposes of these proceedings.
The appellate courts of this State recognize the
superior position family court judges possess to gauge the credibility of the
witnesses and assign weight to their testimony.
[2] We discern no sound reason to depart from this standard in the present
case. Accordingly, giving due deference to the family court, we decline to
disturb the portion of the order containing factual findings relating to witness
credibility.
We agree with the mother, however, that the family
court erred in determining the fathers income for purposes of calculating the
parties respective child support obligations. The family court found the father
is employed at the same place that he had been for some time and now earns
approximately $1,280 per month gross as an electrician. The father,
however, testified he had been working at a new job for less than two weeks
at the time of trial. According to his own testimony, the father earns
$11 per hour and is guaranteed at least 40 hours pay per week. This
yields a monthly salary of $1,906. We therefore reverse the award of child
support and remand the issue to the family court. On remand, the family court
is directed to recalculate the parties child support obligations using figures
reflective of their current incomes.
The mother also correctly notes the family court
erroneously found the parties separated in July 1998, rather than November 1998.
The family court also erroneously stated the father, rather than the mother,
sought leave at trial to go forward with the divorce on the ground of adultery.
Although erroneous, neither of these findings is of any real consequence here.
The parties had been separated for more than one year at the time of the July
2000 final hearing, and neither party suffered any prejudice because of the
finding. Accordingly, we decline to disturb the order in this regard. [3]
The remaining factual findings are either supported
by the record or so inconsequentially imprecise as to have no effect whatever
on this courts disposition of the issues raised on appeal. By way of example,
the mother asserts the family court erred in finding that her pleadings initially
alleged the children were the product of the union of Plaintiff and Defendant,
and the answer admitted the same. The mother would have this court
hold this finding was erroneous despite the fact she expressly alleged in her
complaint that the Defendant has acknowledged two children have been born of
the union. Neither the family courts failure to repeat her allegation
verbatim nor the negative inference drawn by the family court regarding the
mothers reasons for making the allegation renders the finding erroneous.
2. The mother next argues the family court erred
in awarding both parties a divorce on the ground of one years continuous separation.
Specifically, she contends that only she, and not the father, moved to amend
her pleadings to include a request for divorce on this ground. Even assuming
error as to the family courts finding in this regard, the mother suffered no
prejudice at all. The marriage is no less dissolved than it would have been
had the family court granted a divorce to her alone on the same ground.
[4]
3. The mother further asserts the family court
erred in failing to order the father to pay child support retroactive to the
date of her complaint and in failing to issue an order allowing for the removal
of his name from Haleys birth certificate. These issues are not preserved
for our review. The family court did not rule on either of these issues in
its final order, and the record does not show any post-trial motion by the mother
for a ruling on either issue after the order.
[5]
4. The mother asserts the family court erred in
failing to hold the father in contempt of court for failure to pay child support
as required by the temporary order. We find no reversible error.
Contempt results from the willful disobedience
of a court order. [6] The record before the court
must clearly and specifically exhibit the contemptuous conduct to sustain
a finding of contempt. [7] A
finding of contempt rests within the trial courts sound discretion and will
be disturbed on appeal only if it is without evidentiary support or is an abuse
of discretion. [8]
The father admitted he failed to make timely child
support payments and accumulated an arrearage. It is undisputed, however,
that the order requiring the father to make child support payments beginning
on January 21, 2000, was not filed until February 25, 2000. Furthermore,
the father explained that his efforts to satisfy the arrearage and simultaneously
keep up with his ongoing obligation were frustrated by a failed construction
contract.
Under these facts and circumstances, we discern
no abuse of discretion in the family courts determination the fathers failure
to make timely support payments was not willful in nature and, therefore, did
not warrant a finding of contempt.
4. Finally, the mother asserts the family court
erred in failing to award her sole custody of Faith. We disagree.
Custody is based on a determination of the character,
fitness, attitude, and inclinations on the part of each parent. [9] Moreover, the totality of the circumstances peculiar to each
case constitutes the only scale upon which the ultimate decision can be weighed. [10]
Notwithstanding the guardian ad litems
statement that both the parties were loving parents, we agree with the
family court that neither party in this case is a paragon of moral virtue.
Initially, both parties denied using any illicit
drugs during the pendency of this litigation. The father, however, eventually
admitted to using marijuana. The mother, on the other hand, continued to deny
any drug use, even after she tested positive for use of amphetamines. In
addition, despite having leveled numerous accusations of physical abuse against
the father, including four separate incidents wherein she caused the father
to be criminally charged with domestic violence, the mother later admitted that
the father struck her on only one occasion.
Moreover, at the time of the final hearing, both
parents were involved in what the guardian termed nonconventional relationships.
Specifically, both the mother and father were living with paramours, and
both stated their intent to continue their respective living arrangements.
Despite their shortcomings, both parties
were found to have good parental qualities. According to the guardian ad litem,
the parents are some of the most tuned-in to these children and their likes
and dislikes of any Ive ever seen. Both parties also maintain steady
employment and, despite the live-in status of their respective paramours, enjoy
apparently stable and suitable households.
In our view, the propriety of the family
courts ultimate determination of the most suitable custody arrangement for
Faith turned on the mothers attitude towards the father and the unlikelihood
that she would foster a healthy relationship between the father and Faith if
she were granted sole or primary custody of the child. Throughout the course
of this litigation and even on appeal, the mother continued to adamantly express
her concerns that the father had in the past or will in the future sexually
abuse Faith or one of her other daughters. Although Haley accused the father
of inappropriate touching, the allegations were deemed unfounded after an investigation
by the Department of Social Services. Moreover, the guardian ad litem noted
in her report that Haley attached no particular meaning to the incident and
was not afraid of her father.
Inasmuch as the mother is apparently unwilling
or unable foster a loving, healthy relationship between Faith and the father,
we hold the family court correctly determined that Faiths best interests presently
dictate a joint custodial arrangement with primary placement vested in the father.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
GOOLSBY, HUFF, and SHULER, JJ., concur.
[1] Because oral argument would not aid the court in resolving the
issues on appeal, we decide this case without oral argument pursuant to Rule
215, SCACR.
[2] See Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d
358, 367 (1999) (stating that, notwithstanding the standard of review in equity
cases, [t]he appellate court is not . . . required to ignore the fact that
the family court, who saw and heard the witnesses, was in a better position
to evaluate their credibility and assign comparative weight to their testimony).
[3] See Recco Tape &
Label Co. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838, 840 (1994) (stating
the appellant must show both the error of the ruling and resulting prejudice
in order for a decision to be reversed).
[4] Cf. Tinsley v. Tinsley, 326 S.C. 374, 380, 483 S.E.2d
198, 202 (Ct. App. 1997) (Additionally, because the parties received a divorce
on another ground, Wife was not prejudiced by the family courts decision
not to grant her a divorce on the ground of physical cruelty.).
[5] See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d
731, 733 (1998) (It is axiomatic that an issue cannot be raised for the first
time on appeal, but must have been raised to and ruled upon by the trial judge
to be preserved for appellate review.).
[6] Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125,
129 (1989).
[10] Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228,
230 (1975).