Frantzis v. Frantzis

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

David J. Frantzis,       
Appellant,

v.

Kristen B. Frantzis,       
Respondent.

Appeal From Berkeley County

Wayne M. Creech, Family Court Judge

Unpublished Opinion No. 2004-UP-051

Submitted October 15, 2003 – Filed January
22, 2004

AFFIRMED

David J. Frantzis, of Charleston, for Appellant.

Kristen B. Frantzis, of Goose Creek, for Respondent.

D. Allen Badger, of Charleston, for Guardian Ad Litem

PER CURIAM:   David Frantzis appeals the family court’s decision to
not modify the custody order concerning the Frantzis child. We affirm.

FACTS

Kristen (“the mother”) and David (“the father”) Frantzis
divorced in August of 2000. In the divorce order, the family court (“the court”)
granted sole custody of the Frantzis child to the mother. The court granted
visitation rights to the father and ordered him to pay child support. The court
also ordered the father to “stay away” from the mother and to not harass her.

In May of 2001, the father petitioned the court
to modify the custody arrangement. The father alleged that the mother had used
illegal drugs in front of the child and had exposed the child to “multiple males”
who were “not family members.” The mother responded in a letter, saying that
she had never in her life used cocaine, but admitted to living with her “fiancé.”
In July of 2001, the court appointed a GAL. The court also ordered the mother
to stop living with her fiancé, as he was still married to another woman. In
September of 2002, the court held a hearing about the husband’s request. The
parties represented themselves at the hearing.

The judge heard testimony from the father, the
mother, the mother’s fiancé, and the GAL. He found that (1) the mother and her
fiancé had an “illegal and immoral” relationship; (2) their continued living
arrangement violated a previous court order. However, the judge maintained custody
with the mother, warning her that she would be held in contempt of court and
lose custody of her child if she continued living with her fiancé. The husband
appeals.

ISSUES         

(1) Did the family court err in not finding that
the father was the more fit custodial parent?

(2) Did the family court err in not enforcing its
prior order that required the wife to not expose the child to the “adulterous”
relationship?

ANALYSIS        

“When reviewing the factual determinations of the
family court, an appellate court may take its own view of the preponderance
of the evidence.” Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620,
623 (2003) (citing Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154,
157 (1996)). But “the appellate court ‘should be reluctant to substitute its
own evaluation of the evidence on child custody for that of the [family] court.’”
Id. And “where there is disputed evidence, the appellate court may adhere
to the findings of the family court.” Id.

Here, the judge heard the testimonies of all parties.
The judge then decided that, the mother’s living arrangement notwithstanding,
the situation did not warrant changing the original custody order. The GAL’s
report had reached the same conclusion. The father failed to provide persuasive
evidence that the father would provide a better environment for the child. There
is no reason to disturb that finding.

The father also argues that the trial court erred
in not holding the mother in contempt after finding that the mother had violated
a prior order by continuing to live with her fiancé. This matter was not raised
before the family court judge and therefore we cannot review it. See
Washington v. Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992)
(“Husband neither raised these issues to the court at trial nor through a Rule
59(e) motion to amend the judgment [so] the issues are not properly before this
Court for review.”);(Cash v. Cash, 320 S.C. 388, 392, 465 S.E.2d 371,
373 (Ct. 1995) (holding that when a family court’s order does not specifically
address an issue and no Rule (59)(e) motion to alter or amend the court’s order
is made, then the issue is not preserved for appellate review).  

AFFIRMED.

HUFF, STILWELL and BEATTY, JJ., concur.