Jeffrey Fossett v. Melissa Fossett

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jeffrey Spencer Fossett, Appellant,

v.

Melissa Renee Fossett, Respondent.

Appellate Case No. 2020-000786

Appeal from Greenville County
Rochelle Y. Conits, Family Court Judge

Opinion No. 6000
Heard March 9, 2023 – Filed July 19, 2023

AFFIRMED

J. Falkner Wilkes, of Greenville, for Appellant.

Joseph M. Ramseur, Jr., and Danielle Metoyer Mitchell,
both of Mitchell Ramseur, LLC, of Greenville, for
Respondent.

GEATHERS, J.: In this custody dispute, Appellant Jeffrey Fossett (Father)
challenges an order denying a modification of his and Melissa Fossett's (Mother)
custody arrangement. Father maintains that the family court erred in failing to
consider some substantial changes in circumstances and argues that the attorney's
and guardian ad litem's (GAL) fee arrangements are inequitable. We affirm.

FACTS
Mother and Father are the divorced parents of two boys, who at the time of
the final divorce hearing were ages 10 and 15. 1 On November 7, 2016, a Final Order
of Separate Maintenance and Support (Final Order) was entered, granting primary
custody to Mother, child support from Father to Mother, and visitation rights to
Father.

On December 2, 2017, Father married his current wife, Holly Fossett
(Stepmother). At the time of the final hearing in the present action, Father and
Stepmother had one child together and Stepmother had two children from a previous
marriage.

Over time, Mother and Father engaged in numerous email exchanges, which
occasionally exhibited accusative tones. For example, on June 26, 2017, Father sent
an email to Mother accusing her of being unfaithful, manipulative, and "[a]n
unrepentant liar and deceiver." Mother was also accused of engaging in "sinful,
wicked choices" and "emotional/psychological abuse of the boys[.]" This, along
with many other email exchanges, was later shared with the boys by Father.

On May 29, 2018, Father filed this action requesting modification of the
custody order and related fee arrangements. On October 10, 2018, the family court
appointed Amie Carpenter as the GAL for the boys. After meeting with both boys
four separate times, she testified that the children preferred to live with Father but
expressed concern that this preference was likely influenced by Father's
manipulative behavior. She also stated that neither child harbored any ill-will
toward either of the parents and both exhibited high educational and extra-curricular
performance.

On March 30, 2020, the family court issued its Final Order denying Father's
requested change in custody and ordering Father to pay a portion of Mother's
attorney's fees and GAL fees. This appeal followed.

ISSUES ON APPEAL

I. Did the family court err in failing to weigh substantial changes in
circumstances in denying Father's request to modify the custody
arrangement?

1
To protect their privacy as minors at the time of trial, the younger child is referred
to as "BJF" and the older as "BAF." BAF was no longer a minor by the time this
case was heard on appeal.
II. Did the family court err in its attorney fee determination?

III. Did the family court err in its GAL fee determination?

LAW/ARGUMENT

"On appeal from the family court, the appellate court reviews factual and legal
issues de novo." Klein v. Barrett, 427 S.C. 74, 79, 828 S.E.2d 773, 776 (Ct. App.
2019); see also Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)
(reiterating "that the proper standard of review in family court matters is de novo,
rather than an abuse of discretion"). However, we are mindful that because the
family court was in a better position to evaluate evidence, custody decisions should
largely be left to its discretion. Shirley v. Shirley, 342 S.C. 324, 329, 536 S.E.2d
427, 429–30 (Ct. App. 2000). Indeed, "appellate court[s] should be reluctant to
substitute [their] own evaluation of the evidence on child custody for that of the
[family] court." Id. at 331, 536 S.E.2d at 430. "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,
427 S.C. at 80, 828 S.E.2d at 776.

I. Custodial Arrangement

"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). "Because the best interest of the
child is the overriding concern in all child custody matters, when a non-custodial
parent seeks a change in custody, the non-custodial parent must establish the
following: (1) [] a substantial change in circumstances affecting the welfare of the
child and (2) a change in custody is in the overall best interests of the child." Latimer
v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004).

"A change in circumstances justifying a change in the custody of a child
simply means that sufficient facts have been shown to warrant the conclusion that
the best interests of the child[] will be served by the change." Id. (quoting Stutz v.
Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979)). "In order for a court to
grant a change of custody based on changed circumstances, the party seeking the
change must meet the burden of showing changed circumstances occurring
subsequent to the entry of the order in question." Hollar v. Hollar, 342 S.C. 463,
473, 536 S.E.2d 883, 888 (Ct. App. 2000). As the parent seeking a modification of
the custodial arrangement, Father bears the burden of proving that a substantial
change in circumstances occurred after the latest custody order and that a change in
custody is in the best interest of the children.

Father argues that (1) the children's custodial preferences and (2) Father's
post-marital family environment should have been considered changes in
circumstances sufficient to grant a change in custody. We disagree.

A. Custodial Preference of the Children

"While the child's reasonable preference is a factor in considering the best
interest of the child, it is not controlling." Payne v. Payne, 382 S.C. 62, 69, 674
S.E.2d 515, 518 (Ct. App. 2009). "The significance to be attached to the wishes of
children in a custody dispute depends upon the age of the children and the attendant
circumstances." Brown v. Brown, 362 S.C. 85, 93, 606 S.E.2d 785, 789 (Ct. App.
2004); see also Moorhead v. Scott, 259 S.C. 580, 585, 193 S.E.2d 510, 513 (1972)
(comparing the significance of the custodial preference of a six-year-old to that of a
sixteen-year-old). However, this significance is counterbalanced by a variety of
factors, including a parent's manipulative behavior toward his child. See S.C. Code
Ann. § 63-15-240(B) (Supp. 2022) (providing an inexhaustive list of considerations
for courts when determining the best interest of the child, including "the preferences
of each child" and "the manipulation by or coercive behavior of the parents in an
effort to involve the child in the parents' dispute"). Thus, we must first assess the
boys' respective maturity levels to adequately evaluate their susceptibility to Father's
purported manipulative behavior.

Our appellate courts have assigned varying degrees of weight to the custodial
preferences of minors depending on their age. In Guinan v. Guinan, our supreme
court accorded great weight to the preferences of a sixteen-year-old child. 254 S.C.
554, 557, 176 S.E.2d 173, 174 (1970). However, this determination may have been
due to the absence of countervailing factors. See id. at 557–58, 176 S.E.2d at 174.
("The [family] court made no finding of fact tending to offset this important factor
in awarding custody, and the record before us is bare of any evidence tending to do
so."). In contrast, this court in Tillman v. Oakes found "the preference of a ten-year-
old on the important issue of a change in custody to be of little value, if any." 398
S.C. 245, 252, 728 S.E.2d 45, 49 (Ct. App. 2012). We note that this court in Brown
v. Brown suggested that a ten-year-old's wishes may be given some weight but stated
that it "does not rise to the level of 'great weight' that should be given the desires of
a sixteen-year-old." 362 S.C. at 95, 606 S.E.2d at 790.
Here, the GAL testified at the family court hearing about the details of a
conversation she had with the boys in which they made several statements
expressing their desire to primarily reside with their father. According to her, the
boys felt that they shared a bond with Father and that spending more time with him
meant they could also spend quality time with their half sister and stepsisters.
Further, she indicated that the boys may have harbored a lingering resentment of
Mother following her divorce with Father. As a ten-year-old at the time of trial,
BJF's preference should not be accorded considerable weight due to his age and
maturity. 2 What little significance we may assign to his preference is diminished by
Father's manipulative behavior used to involve the children in his ongoing dispute
with Mother.

Father argues that the "record fails to show that the children were intentionally
manipulated on the issue of custody or placement." We disagree.

We first emphasize that manipulation in the child custody context need not be
an intentional effort to alter a child's custodial preference as is suggested by Father.
Rather, under section 63-15-240(B)(7), manipulation can transpire in a variety of
ways as long as it is manifested "in an effort to involve the child in the parents'
dispute."

In the present case, evidence suggests Father engaged in manipulative
behavior. The most apparent example is the disclosure of email conversations
between Mother and himself, to the children. 3 Father argues that "the [GAL]
testified that [Father] had not manipulated them as to their preference as to where
they wanted to live." This is incorrect. At the family court hearing, the GAL

2
We recognize that, as a fifteen-year-old at the time of trial, BAF's custodial
preference may have been entitled to more weight. However, because he turned
eighteen during the pendency of this appeal, custody issues pertaining to him are
moot. See Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001) ("A case
becomes moot when judgment, if rendered, will have no practical legal effect upon
[the] existing controversy." (alteration in original) (quoting Mathis v. S.C. State
Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973)); see also Carpenter
v. S.C. Dep't of Soc. Servs., 278 S.C. 167, 167-68, 293 S.E.2d 432, 432 (1982)
(finding a removal proceeding moot when a child turned eighteen during the
pendency of an appeal).
3
Father contends this evidence of manipulation is "petty", but we believe it falls
squarely within the type of manipulation identified under section 63-15-240.
expressly testified that, in her view, revealing the prior communications to the
children was evidence of Father's manipulation.

Additionally, Father demonstrated manipulative behavior when he routinely
sent envelopes marked with Mother's maiden name with the children when they
returned home to Mother. Father was aware that Mother chose to maintain her
marital surname in an effort to remain connected to the children yet declined to
address her accordingly.

Finally, Father alleged that Mother used disparaging comments about him in
front of the children. We believe these comments are unsubstantiated by the record
on appeal. Testimony provided by the GAL indicated that she found no evidence
that either parent verbally voiced negative remarks about the other. Given Father's
manipulative behavior toward the children, we find BJF's custodial preference
insufficient to serve as a substantial change in circumstances.

B. Father's Post-Marital Family Environment

Father argues that his post-marital family environment should have been
weighed in the family court's analysis.

Initially, Father places great emphasis on the family dynamic created upon his
remarriage to Stepmother. While the record reflects that Father has fostered a
healthy home environment for the boys, the GAL determined that the children are
equivalently served in Mother's care. Also, absent additional supporting factors,
remarriage is insufficient to modify a custody decree. See Pitt v. Olds, 333 S.C. 478,
481, 511 S.E.2d 60, 61 (1999) ("[Our supreme c]ourt has specifically held that
remarriage alone is not sufficient to warrant modification of a custody decree."); see
also Latimer, 360 S.C. at 382, 602 S.E.2d at 35 (same).

Father also expresses concern with Mother's decision to use a homeopathic
chiropractor to treat BAF's severe eczema. From a very young age, BAF has
experienced skin dryness and irritation that Mother remedied with over-the-counter
lotions and creams. After the condition worsened, Mother consulted a "homeopathic
chiropractor," who prescribed Vitamin E oil and prednisone cream. After a period
of months of limited improvement, Stepmother consulted an online dermatologist
who prescribed treatments, and as a result, BAF's rash began to disappear.

We do not believe that Mother's actions reflect a dereliction of her
responsibility to understand and meet the medical needs of her children. See S.C.
Code Ann. § 63-15-240(B)(2) (Supp. 2022) ("[T]he court must consider the best
interest of the child, which may include . . . the capacity and the disposition of the
parents to understand and meet the needs of the child[.]"). Thus, we believe the
family court did not err in assigning it little weight.

Considering the totality of the evidence in the record, we believe Father has
failed to show a substantial change in circumstances affecting the welfare of the
children.

II. Attorney's Fees

Father argues that the family court erred in its attorney fee determination. We
disagree.

"The [family] court, from time to time[,] after considering the financial
resources and marital fault of both parties, may order one party to pay a reasonable
amount to the other for attorney fees[.]" S.C. Code Ann. § 20-3-130(H) (2014). To
assess attorney fee determinations, our courts employ a tiered inquiry in which a set
of factors are applied to determine whether an award of attorney fees was
appropriate; then another set of factors are applied to determine the reasonableness
of the amount awarded. See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230,
241 (Ct. App. 2010) (listing the sets of factors). An appellate court reviews "a family
court's award of attorney's fees de novo." Stone v. Thompson, 428 S.C. 79, 92, 833
S.E.2d 266, 272 (2019).

We must first consider the following factors to determine the propriety of an
award of attorney's fees focusing on each party's: (1) ability to pay their own fees;
(2) beneficial results obtained; (3) respective financial conditions; and (4) standard
of living as affected by these fees. See E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415
S.E.2d 812, 816 (1992) (E.D.M. factors).

Once the family court has determined that an award is proper, it must consider
the following factors to determine the reasonableness of the amount: "(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; [and] (6) customary legal fees for similar services." Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) (Glasscock factors).

A. Uncooperativeness
Father first argues that the award of attorney's fees was inequitable because
the family court failed to substantiate its finding that he was uncooperative or
hindered the litigation. The uncooperative or litigious nature of a party is an
additional consideration that our courts have raised to complement the E.D.M. and
Glasscock factors. See Bodkin, 388 S.C. at 223, 694 S.E.2d at 241. ("[W]hen parties
fail to cooperate and their behavior prolongs proceedings, this is a basis for holding
them responsible for attorney's fees.").

In the present case, the family court never made a finding that Father was
uncooperative or conducted himself in a manner that impeded litigation. Thus, the
family court did not err in failing to substantiate a finding that it never made.

B. Financial Considerations

Second, Father argues that the family court failed to make a proper
determination of the parties' respective gross incomes when deciding who would
bear the brunt of Mother's attorney's fees. Specifically, Father suggests that the
family court failed to consider the child support and alimony Mother received when
calculating her gross income.

Financial considerations relate to the following E.D.M. factors: the parties'
respective financial conditions, the parties' ability to pay for their attorney's fees, and
the effect of the fee on the parties' standard of living. In respect to these factors, the
family court found that Father was in a superior financial position, Mother was
largely unable to pay her attorney's fees, and the impact of the attorney's fees would
be financially devastating to Mother's standard of living. In making these
determinations, the court considered each party's gross monthly income, debt, and
the alimony and child support paid from Father to Mother. 4 The court also noted
that the alimony payments would expire on November 7, 2024. We find the family
court properly weighed the parties' financial considerations in allocating the
attorney's fees. Therefore, the family court did not err in awarding Father to pay
Mother's attorney's fees. 5

4
The family court found that Father earns $13,900.00 in gross monthly income,
whereas Mother earns $2,314.00. Mother also receives $2,500.00 per month in
taxable alimony and $850.00 per month in child support. The court also considered
Mother's and Father's respective debt obligations.
5
The family court also considered the second E.D.M. factor, beneficial results
obtained. The court found that Mother was wholly successful in defending this
III. GAL Fees

In respect to the GAL fees, Father contends that (1) the fees exceeded the
statutory cap and (2) the family court misallocated the fee amounts between the
parties.

A. Statutory Cap

As an initial matter, we believe Father's argument that the GAL fees exceeded
the statutory cap is not preserved for appeal because it was never raised to and ruled
upon at the family court. 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 [family court] to be
preserved for appellate review.").

B. Fee Allocation

"An award of attorney's fees will be reversed where the substantive results
achieved by counsel are reversed on appeal." Camburn v. Smith, 355 S.C. 574, 581,
586 S.E.2d 565, 568 (2003). "Similarly, where guardian ad litem fees are incurred
in an action that is found meritless on appeal, the party instigating the action should
pay." Id.

In determining the proper allocation of the GAL fees, our courts have
considered the parties' respective financial positions, the extent of the parties'
communications with the GAL, and whether the action was brought in good faith.
See Klein, 427 S.C. at 89, 828 S.E.2d at 781 (finding the wife should bear the
majority of GAL fees when considering the parties' incomes and the wife's extensive
correspondence with the GAL); see also Shirley, 342 S.C. at 341, 536 S.E.2d at 436
(considering a party's legitimate reasons for bringing an action when allocating the
GAL fees).

Here, we find that Father has failed to demonstrate a substantial change in
circumstances sufficient to warrant a modification of the custody decree. Therefore,
as the instigating party, he must pay the GAL fees. See Camburn, 355 S.C. at 581,

action and but for Father bringing this action, Mother would not have incurred any
fees and costs.
586 S.E.2d 568 ("[W]here guardian ad litem fees are incurred in an action that is
found meritless on appeal, the party instigating the action should pay.").

CONCLUSION

Accordingly, the family court's order is

AFFIRMED.

WILLIAMS, C.J., and VERDIN, J., concur.