Mya N. Sumter v. Dezmond B. Sumter

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

Mya Nichelle Sumter, Appellant,

v.

Dezmond Bernard Sumter, Respondent.

Appellate Case No. 2023-000419

Appeal From Richland County
Monét S. Pincus, Family Court Judge

Unpublished Opinion No. 2025-UP-081
Heard February 12, 2025 – Filed March 7, 2025

AFFIRMED AS MODIFIED

Carrie Ann Warner, of Warner Law Firm, LLC, of
Columbia, for Appellant.

John O. McDougall, of McDougall, Self, Currence &
McLeod, LLP, of Columbia, for Respondent.

Kathryn F. Free, of Kathryn F. Free, Attorney at Law, of
Elgin, as Guardian ad Litem.

PER CURIAM: Mya Nichelle Sumter (Mother) appeals several orders of the
family court, including the Final Order Ending Action. On appeal, Mother argues
the court erred by (1) awarding Dezmond Bernard Sumter (Father) primary legal
and physical custody of their shared minor child (Child); (2) failing to consider
Child's best interests in ordering Mother could not relocate to Atlanta, Georgia
with Child; (3) making certain findings of fact against Mother that the record did
not support; (4) limiting Mother's cross-examination of Father; (5) deviating from
the Child Support Guidelines (the Guidelines); and (6) awarding attorney's fees to
Father. We affirm as modified. 1

1. Custody of Child

Mother argued the family court erred in awarding Father primary legal and
physical custody of Child. We affirm. "In making a custody determination, the
child's welfare and best interest are the paramount and controlling considerations
of the court." Lewis v. Lewis, 400 S.C. 354, 364, 734 S.E.2d 322, 327 (Ct. App.
2012) (citing Patel v. Patel, 359 S.C. 515, 526, 599 S.E.2d 114, 119 (2004)). The
family court must consider the best interest of the child, which may include but is
not limited to seventeen specific factors enumerated in section 63-15-240(B) of the
South Carolina Code (Supp. 2024). "Therefore, the appellant bears the burden of
convincing the appellate court that the family court committed error or that the
preponderance of the evidence is against the family court's findings." Klein v.
Barrett, 427 S.C. 74, 80, 828 S.E.2d 773, 776 (Ct. App. 2019). We find the family
court did not err in awarding primary custody to Father. In its order, the court
analyzed each factor enumerated in section 63-15-240(B). Under our own view of
the preponderance of the evidence, we find the record supported each of the family
court's findings and Mother has failed to meet her burden of showing the family
court committed error in its analysis.

2. Relocation to Atlanta

Mother argues the family court failed to consider Child's best interests in ordering
that Mother could not relocate with Child to Atlanta. We affirm. "In all child
custody cases, including relocation cases, the controlling considerations are the

1
"Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings." Stone v. Thompson, 428 S.C. 79, 91, 833
S.E.2d 266, 272 (2019). "While this broad scope of review allows the appellate
court to find facts in accordance with its own view of the preponderance of the
evidence, it does not require this court to disregard the findings of the family
court." Greene v. Greene, 439 S.C. 427, 439, 887 S.E.2d 157, 164 (Ct. App.
2023).
child's welfare and best interests." Latimer v. Farmer, 360 S.C. 375, 381, 602
S.E.2d 32, 35 (2004). "The effect of relocation on the child's best interest is highly
fact specific." Id. at 382, 602 S.E.2d at 35. "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." Walrath v. Pope, 384 S.C. 101, 106, 681 S.E.2d 602, 605 (Ct.
App. 2009) (noting factors considered by New York and Pennsylvania courts).
Here, the family court found Mother's move to Atlanta with Child would have a
negative impact on Father's relationship with Child; therefore, it was not in Child's
best interests. Ultimately, the court found Mother's proposed parenting plan was
too restrictive. It further found Mother did not provide any testimony regarding
relocation factors, including her motivation for the move. Under our own view of
the preponderance of the evidence, we find the court properly denied Mother's
request to relocate with Child. The record makes clear Mother's motivations are
her own and are not focused on the best interests of Child. If Mother were to
relocate with Child to Atlanta, everything in Child's life would change, and we
agree this is not in Child's best interests. Child's entire life has been established in
Columbia. We find the family court did not err in denying Mother's request to
relocate to Atlanta with Child.

3. Findings of Fact Against Mother

Mother argues the family court abused its discretion in making certain findings of
fact against Mother that were unsupported by the record. We affirm. This court
has dealt with a similar challenge to adverse findings against a mother in a custody
case. In Altman v. Griffith, the mother "challenge[d] the findings favoring the
custody award to [the father], essentially complaining about the family court's
failure to give weight to [the mother's] take on the evidence." 372 S.C. 388, 395-
96, 642 S.E.2d 619, 623 (Ct. App. 2007). The facts in Altman are strikingly
similar to the issues here, and the mother in Altman assigned error to the adverse
findings against herself and the positive findings in favor of the father. First, as
Mother did here, the mother in Altman prevented the father from seeing the child
for several months for no justifiable reason. Id. at 402, 642 S.E.2d at 626. Further,
this court in Altman found support in the record that "the 'mother's and her family's
repeated unfounded accusations and unfounded charges against the father have
contributed greatly to their bad relationship and inability to communicate with each
other.'" Id. The court found the father had a stronger focus on the daily welfare
and care of the child than the mother and the father was "committed to supporting
the child's relationship with his mother." Id. Ultimately, this court found the
evidence in the record supported the view that the child's best interest was served
by an award of custody to the father. Id. at 403, 642 S.E.2d at 627. In making this
finding, the court declined to "recast the evidence so that the scales tip in favor of
[the mother]." Id. at 403, 642 S.E.2d at 627.

We are unpersuaded by Mother's arguments because the bulk of "supporting
evidence" she provides is her own testimony, which the family court found to be
not credible. See Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 652 (2011)
(finding the appellate court generally defers to the findings of the family court
regarding credibility because the family court is in a better position to observe the
witness and his or her demeanor). We agree with the family court's findings that
Mother lacked credibility and her claims against Father were unsubstantiated by
the evidence. Like this court's deference in Altman, our deference to the family
court's findings is especially warranted here, for the ultimate determination rests
primarily on the family court's assessment of witness demeanor and credibility.
Based on the foregoing and our own view of the preponderance of the evidence,
we find the court did not err in making adverse findings against Mother based on
evidence and testimony in the record.

4. Scope of Cross-Examination

Mother argues the family court erred in limiting Mother's cross-examination of
Father. Mother further argues Father's repeated reference to his deposition
testimony was an attempt to "interfere and stymie" his cross-examination, upon
which the family court based some of its findings, thus violating Mother's
constitutional right to due process.2 We affirm. Evidentiary and procedural
rulings of the family court are reviewed using an abuse of discretion standard.
Stoney v. Stoney, 422 S.C. 593, 595 n.2, 813 S.E.2d 486, 487 n.2 (2018); see, e.g.,
Broom v. Jennifer J., 403 S.C. 96, 115, 742 S.E.2d 382, 391 (2013) (stating on
appeal from the family court "the admission or exclusion of evidence is within the
trial judge's discretion"). We find the family court did not cut off or restrict
Mother's counsel from continuing her cross-examination; it simply reminded
counsel to adhere to a timeline. Cross-examination of Father continued for six
more pages after this announcement from the court. At the end of cross-

2
Mother argued for the first time in her brief that the court's limitation of her
cross-examination of Father was unconstitutional. 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 [court] to be preserved for appellate review.").
examination, Mother's counsel stated, "Your Honor, I have no further questions."
Overall, cross-examination of Father spanned almost an entire day of trial and
consisted of 147 pages in the record. We find the family court did not erroneously
limit Mother's cross-examination of Father.

5. Deviation from the Guidelines

Mother argued the family court erred in deviating from the Guidelines. We affirm.
"The Child Support Guidelines are available to be used for temporary and
permanent orders, actions for separate maintenance and support, divorce and child
support awards. Additionally, the Guidelines are to be used to assess the adequacy
of agreements for support and encourage settlement of this issue between parties."
S.C. Code Ann. Regs. 114-4710(A) (Supp. 2024). 3 The South Carolina Code of
Regulations recommends that deviation should be an exception, rather than the
rule. S.C. Code Ann. Regs. 114-4710(B) (Supp. 2024). However, "[w]hen the
court deviates, it must make written findings that clearly state the nature and extent
of the variation from the Guidelines. These Child Support Guidelines do not take
into account the economic impact of the following factors which can be possible
reasons for deviation." Id. Educational expenses for children are an enumerated
reason for possible deviation. Id.

We find the court was warranted in its deviation, and it properly made written
findings as to why it deviated. In its supplemental temporary order that allowed
for Child's enrollment and regular attendance at Heathwood Hall Episcopal School,
the court addressed the parties' emphasis on education and highlighted Mother's
resistance in allowing Child to participate at school. In the supplemental order, the
court reiterated that the original temporary order was made when Child was only
approximately twelve months old. At the time of the supplemental order, Child
was a toddler and "clearly of the age where she benefits from such [educational]
opportunities." The court found that if the parties had not separated, it "is very
likely" Child would have been involved in regular social activities and early
education at private school. In its final order, the court likewise made written
findings as to why credited Father $877.64 per month as a daycare expense
towards Heathwood tuition. The court found the program Child was enrolled in at
Heathwood was "a special program . . . and the expenses are equivalent to work-
related child-care expenses."

3
The combined gross monthly income allowing for deviation per the Guidelines is
$40,000.
6. Attorney's Fees

Mother argues the family court's award of attorney's fees to Father in the amount of
$259,896.04 constitutes an abuse of discretion. We affirm as modified.

"[A]ttorney's fees may be assessed against a party in an action brought in the
family court." Patel, 359 S.C. at 533, 599 S.E.2d at 123. "In determining whether
an attorney's fee should be awarded, the following factors should be considered:
(1) the party's ability to pay his/her own attorney's fee; (2) [the] beneficial results
obtained by the attorney; (3) the parties' respective financial conditions; [and] (4)
[the] effect of the attorney's fee on each party's standard of living." E.D.M. v.
T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). The reasonableness of
attorney's fees should be determined by the following factors: "(1) the nature,
extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5) beneficial
results obtained; (6) customary legal fees for similar services." Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). "[T]his [c]ourt reviews
a family court's award of attorney's fees de novo." Stone, 428 S.C. at 92, 833
S.E.2d at 272.

In its order, the family court addressed each of the factors enumerated in E.D.M.
and Glasscock. Reviewing the record based on our view of the preponderance of
the evidence, we find a modification of the attorney's fees award is warranted.
Although we are mindful of the family court's discretion in awarding attorney's
fees, we conclude a more equitable division is to require Mother to pay a portion—
as opposed to the entirety—of Father's attorney's fees. We acknowledge Father
achieved greater beneficial results than Mother; however, Father is also in a better
financial position than Mother and is able to pay a portion of his fees, as he has
done throughout litigation. However, we also note the considerable amount of
time Mother spent investigating Father's financial matters, believing he was hiding
assets and additional financial information. She also spent considerable effort
attempting to impeach Father's credibility although there was no property, assets,
or debts for the court to divide. Based on our view of the preponderance of the
evidence, we find Mother's lack of cooperation and delay throughout the case
caused Father's attorney to expend additional funds to litigate Mother's meritless,
unfounded claims. See Thornton v. Thornton, 428 S.C. 460, 477, 836 S.E.2d 351,
360 (Ct. App. 2019) (stating that "[w]hen a party's uncooperative conduct in
discovery and litigation increases the amount of the other party's fees and costs, the
[family] court can use this as an additional basis" in its decision of whether to
award attorney's fees. (quoting Bojilov v. Bojilov, 425 S.C. 161, 185, 819 S.E.2d
791, 804 (Ct. App. 2018))). We modify the fee award based on Mother's delays
throughout litigation. Mother is responsible for her own attorney's fees. She is
also responsible for one-third of Father's fees in the amount of $86,632.01. Father
is responsible for the remainder of his fees in the amount of $173,264.03.

Based on the foregoing, the final order on appeal is

AFFIRMED AS MODIFIED.

THOMAS, KONDUROS, and HEWITT, JJ., concur.