Brown v. Brown

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

Desiree Gabriel Brown, Respondent,

v.

Wendell Brown, Appellant.

Appellate Case No. 2009-138747

Appeal From York County
Georgia V. Anderson, Family Court Judge

Unpublished Opinion No. 2014-UP-307
Heard October 7, 2013 – Filed July 30, 2014

AFFIRMED

Thomas F. McDow, IV, and Erin K. Urquhart, both of
the Law Office of Thomas F. McDow, of Rock Hill, for
Appellant.

David Christopher Shea, of the Law Offices of Shea and
Barron, of Columbia, for Respondent.

PER CURIAM: In this divorce action, Wendell Brown ("Father") appeals the
family court's decision to (1) award joint custody of the parties' three children to
Father and Desiree Gabriel Brown ("Mother") and (2) award attorney's fees to
Mother. We affirm.

1. We find the family court erred in ordering joint custody of the three children1
without first finding there were exceptional circumstances meriting the award. See
Patel v. Patel, 359 S.C. 515, 528, 599 S.E.2d 114, 121 (2004) ("Although the
legislature gives family court[s] the authority to order joint or divided custody
where the court finds it is in the best interests of the child, joint or divided custody
should only be awarded where there are exceptional circumstances." (internal
quotation marks and citation omitted)); Scott v. Scott, 354 S.C. 118, 125, 579
S.E.2d 620, 623-24 (2003) (noting joint custody is generally disfavored in South
Carolina and should only be awarded under exceptional circumstances). However,
due to the circumstances surrounding this appeal, we find it is in the remaining
child's2 best interests to maintain the current custody arrangement. See Divine v.
Robbins, 385 S.C. 23, 32, 683 S.E.2d 286, 291 (Ct. App. 2009) ("In all child
custody controversies, the controlling considerations are the child's welfare and
best interests."); Spreeuw v. Barker, 385 S.C. 45, 61-62, 682 S.E.2d 843, 851 (Ct.
App. 2009) (affirming the award of joint custody despite the family court's failure
to find exceptional circumstances when a substantial amount of time elapsed
between the issuance of the family court's final order and oral arguments,
effectively rendering the record "cold" as to the issue of custody). Accordingly,
we affirm the family court's order of joint custody.

2. We find the family court did not err in awarding Mother attorney's fees. See
Lewis v. Lewis, 400 S.C. 354, 372, 734 S.E.2d 322, 331 (Ct. App. 2012) ("The
decision to award attorney's fees is within the family court's sound discretion, and
although appellate review of such an award is de novo, the appellant still has the

1
In its order, the family court granted joint custody of the three children to the
parties with Father as primary custodian to the parties' oldest child and with
Mother as primary custodian to the parties' youngest children.
2
On the date of the issuance of the family court's final order, the children were
eighteen years old, fourteen years old, and twelve years old. Due to problems
obtaining the trial transcript, the appeal of this case was delayed nearly twenty
months. Between the issuance of the family court's final order and oral arguments
before this court, two of the three children have been emancipated, leaving only the
youngest daughter's custody arrangement to be considered on appeal.
burden of showing error in the family court's findings of fact."). The family court
considered the appropriate factors in deciding to award attorney's fees, including
Mother having prevailed on the issue of primary custody of the parties' youngest
children. See Bennett v. Rector, 389 S.C. 274, 284, 697 S.E.2d 715, 720-21 (Ct.
App. 2010) (noting the family court should consider each party's ability to pay
their fees, the beneficial results obtained by the attorney, the parties' financial
conditions, and the fees' effect on the parties' standard of living). Additionally,
during its discussion of attorney's fees in the final order, the family court
specifically found that Father was difficult during discovery of this divorce action.
See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010)
("This court has previously held when parties fail to cooperate and their behavior
prolongs proceedings, this is a basis for holding them responsible for attorney's
fees."). Although Father takes issue with this finding, he has failed to include any
relevant evidence for this court to review in determining whether the family court
improperly relied on this finding in its award of attorney's fees. Accordingly, we
affirm the family court's award of attorney's fees to Mother. See Schultze v.
Schultze, 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013) (noting "the appellant
bears the burden of providing a record on appeal sufficient for intelligent review
and from which an appellate court can determine whether the [family] court
erred").

AFFIRMED.

WILLIAMS and THOMAS, JJ., and CURETON, A.J. concur.