Walrath v. Pope

681 S.E.2d 602, 384 S.C. 101, 2009 S.C. App. LEXIS 253
CourtCourt of Appeals of South Carolina
DecidedJune 12, 2009
Docket4562
StatusPublished
Cited by9 cases

This text of 681 S.E.2d 602 (Walrath v. Pope) 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
Walrath v. Pope, 681 S.E.2d 602, 384 S.C. 101, 2009 S.C. App. LEXIS 253 (S.C. Ct. App. 2009).

Opinion

WILLIAMS, J.

Matthew Walrath (Father) appeals the family court’s order finding Stephanie Pope (Mother) should retain custody of the couple’s two minor children even if Mother moves out of state. We affirm.

FACTS/PROCEDURAL HISTORY

Father and Mother married in March 1998 in Texas. They had two children while married, a daughter born in 1999 and a son born in 2000. The couple later divorced in Texas in June 2002. Pursuant to the Texas Divorce Decree (the Decree), Father and Mother were granted joint custody of the children, with primary custody being awarded to Mother. Additionally, the Decree gave Mother the right to establish the primary residence of the two children. Mother was required to give Father sixty days notice if she intended to move with the children.

Mother moved with the children from Texas to Maryland for a job opportunity in June 2003. Father followed the family to Maryland in order to remain close to the children. Father eventually found employment as a facility supervisor. While in Maryland, Mother married her current husband (Stepfather) and had a child with him.

*104 In May 2004, Mother gave Father notice she would be moving with the children to Blythewood, South Carolina. Stepfather had an opportunity to practice law with a South Carolina firm, which would allow Mother to stay at home with the children. Father again followed Mother and the children, relocating to Fort Mill where he was able to get a job with his same company. While living in Fort Mill, Father began dating and eventually married his current wife (Stepmother).

After Stepfather began to experience some job difficulties, Mother began to search for a job. Mother searched in the Columbia and Charlotte areas but with no success. Eventually she expanded her search to other states and was able to secure a job working out of her home in South Carolina for a company in the Kansas City area. After her company told her she must relocate to Kansas City, Missouri in order to keep her job, Mother gave Father notice of her intended move. Father then brought this action, asking for a change of custody or, in the alternative, an order prohibiting Mother from moving the children to Kansas City. A hearing was held. The family court found no change of custody was in order, and Mother was allowed to move the children. This appeal followed.

STANDARD OF REVIEW

When reviewing a family court order, this Court may find facts based on its view of the preponderance of the evidence. Patel v. Patel, 359 S.C. 515, 522-23, 599 S.E.2d 114, 118 (2004). This broad scope of review, however, does not relieve the appealing party of the burden of showing the family court committed error. Latimer v. Farmer, 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004). Additionally, this Court is not required to disregard the family court’s findings, as it was in the position to see and hear the witnesses and was therefore in a better position to evaluate their credibility. Patel, 359 S.C. at 523, 599 S.E.2d at 118. “This degree of deference is especially true in cases involving the welfare and best interests of the [children].” Latimer, 360 S.C. at 380, 602 S.E.2d at 34.

*105 LAW/ANALYSIS

Father argues the family court erred in determining custody of the children should remain with Mother even if she moves to Kansas City. We disagree.

South Carolina courts have recognized the difficulty of the issue we have before us: balancing the custodial parent’s right to relocate with the minor children against the non-custodial parent’s “right to continue his or her relationship with the [children] as established before the custodial parent’s relocation.” Id. This issue is made even more difficult when both parents share a devoted and loving relationship with the children, as Mother and Father do in the current situation. In resolving this issue, however, our Supreme Court has stated we are no longer to be guided by the presumption against relocation, and should instead focus on the children’s best interests. Id. at 381, 602 S.E.2d at 34-35.

“In all child custody cases, including relocation cases, the controlling considerations are the [children’s] welfare and best interests.” Id. at 381, 602 S.E.2d at 35. When a change in custody is sought, the non-custodial parent must show a change in circumstances occurring subsequent to the entry of the divorce decree. Id. This change of circumstances must be such that it would substantially affect the interests and welfare of the children, not merely the parties, their wishes, or their convenience. Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971). Additionally, “it is incumbent upon the moving party to show that the welfare of the [children] requires the court to ignore and set aside the agreement of the parties incorporated in the decree.” Id.

Because the overriding concern in all child custody matters is the best interests of the children, when a change in custody is sought by the noncustodial parent, that parent must establish (1) there has been a substantial change in circumstances affecting the welfare of the children and (2) a change in custody is in the overall best interests of the children. Latimer, 360 S.C. at 381, 602 S.E.2d at 35.

A change in the custodial parent’s residence is not in itself a substantial change in circumstances affecting the wel *106 fare of the children that justifies a change in custody. Id. at 882, 602 S.E.2d at 35.

Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the [children] as would another. The effect of relocation on the [children’s] best interests] is highly fact specific. It should not be assumed that merely relocating and potentially burdening the non-custodial parent’s visitation rights always negatively affects the [children’s] best interests.

Id.

While South Carolina has not delineated criteria for evaluating whether the best interests of the children are served in relocation cases, our Supreme Court has acknowledged, without endorsing or specifically approving, factors other states consider when making this determination. Id. For example, our Supreme Court stated the New York Court of Appeals looks at (1) each parent’s reason for seeking or opposing the relocation; (2) the relationship between the children and each parent; (3) the impact of the relocation on the quality of the children’s future contact with the non-custodial parent; (4) the economic, emotional, and educational enhancements of the move; and (5) the feasibility of preserving the children’s relationship with the non-custodial parent through visitation arrangements. Id. at 382-83, 602 S.E.2d at 35-36 (citing Tropea v. Tropea,

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Cite This Page — Counsel Stack

Bluebook (online)
681 S.E.2d 602, 384 S.C. 101, 2009 S.C. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walrath-v-pope-scctapp-2009.