Ruff v. Nunez

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

Mary Margaret Ruff, f/k/a Mary Margaret Nunez,
Appellant,

v.

Samuel Nunez, Jr., Respondent.

Appellate Case No. 2011-190306

Appeal From Greenville County
Billy A. Tunstall, Jr., Family Court Judge

Unpublished Opinion No. 2013-UP-290
Submitted May 1, 2013 – Filed June 26, 2013

AFFIRMED IN PART AND MODIFIED IN PART

Dianne S. Riley, of Greenville, for Appellant.

Bruce Wyche Bannister, of Bannister & Wyatt, LLC, of
Greenville, for Respondent.

PER CURIAM: Mary Margret Ruff and Samuel Nunez Jr., formerly wife and
husband, shared joint custody of their child Gabriel, with Nunez having primary
placement. In 2009, Ruff sought sole custody, child support, and other relief,
arguing a substantial change in circumstances had occurred that affected Gabriel's
welfare. The family court's final order denied many of her claims, including her
request for sole custody. We affirm the family court's custody determination,
affirm in part the court's holiday visitation schedule and modify it as it relates to
Ruff's Christmas and spring break visitations, and affirm the court's other findings
and legal conclusions.

I. Facts and Procedural History

Ruff and Nunez married in 2000, and Gabriel was born a year later. In 2006, they
divorced and agreed to share joint custody of Gabriel, with Nunez receiving
primary placement. In April 2009, Ruff filed an ex parte motion for emergency
relief, alleging a substantial change in circumstances and seeking sole custody,
supervised visitation, child support, and other relief. Specifically, Ruff claimed a
substantial change of circumstances occurred when Nunez (1) went to New Jersey
for two months in the spring of 2009, (2) left Gabriel in her care during this time
without support and without medical insurance, (3) failed to inform her of his
whereabouts, and (4) later informed Ruff he wanted Gabriel to move to New
Jersey with him.

Following an emergency hearing, the court issued a temporary order, awarding the
parties (1) joint custody, with Ruff receiving primary placement during the school
year and Nunez having primary placement during the summer, (2) child support to
both parties for the period of time they had primary placement, and (3) visitation
for both parties when they did not have primary placement. The order also
enjoined Ruff from using alcohol in Gabriel's presence and ordered both parties to
give Gabriel his prescribed medications for attention deficit hyperactivity disorder
(ADHD) until he could be evaluated by a physician.

In February 2010, the family court found Ruff in contempt for consuming alcohol
in Gabriel's presence. Again in September 2010, the court found Ruff in contempt
for having alcohol in her home while Gabriel was present. As a result of these two
violations, the court granted Nunez temporary sole custody, and Gabriel moved to
New Jersey. A month after Gabriel relocated to New Jersey, the family court
issued a Rule to Show Cause order requiring Nunez to "immediately restart
[Gabriel's ADHD] medicine." However, the court subsequently dismissed the
action because Gabriel was taken off his medication pursuant to his physician's
recommendation.

The family court held a two-day trial in January 2011. In its final order, the court
found Ruff and Nunez should continue to enjoy joint custody, with primary
placement remaining with Nunez. Specially, the court found Ruff did not prove a
substantial change in circumstances affecting the best interests of the child because
Nunez's move to New Jersey was in Gabriel's best interests. The court explained
Nunez was in a better position to care for Gabriel in New Jersey than in South
Carolina, and his home and job were stable.

The court, however, noted that even if Ruff proved a substantial change in
circumstances, it "would not be justified in changing the custody arrangements"
due to Ruff's current circumstances. The court reasoned "nothing ha[d] changed
from the final order as it relates to [Ruff]" because she continued to change jobs on
a regular basis, lacked stable housing, and depended on her current boyfriend to
pay bills. The court went on to find her conduct to be "self-serving and for the
purpose of gaining an advantage in the [custody] action." As to issues relating to
Gabriel's ADHD medication, the court found Ruff (1) used Gabriel's ADHD
medication issues "as an offensive weapon" against Nunez to discredit him and
"sway the [GAL] to support her [custody] action," (2) had not cooperated in having
prescriptions filled or paid medical bills in a timely fashion, and (3) had frustrated
Nunez's attempts to seek advice from medical professionals regarding Gabriel's
ADHD medication. In response to Ruff's contention that she does not have an
alcohol problem, the court found Ruff offered "no witnesses who would
acknowledge [her] problem with alcohol; instead, [she] chose to offer testimony of
witnesses who minimized her selfish and irresponsible behaviors." Regarding
issues relating to visitation, the court found Ruff uncooperative in scheduling
visitation with Nunez, which "increased the cost of this litigation, . . . contributed
to the anxiety and stress [of Gabriel], and has not been in the best interest of the
child." Finally, the court noted Ruff is unemployed and drinks on a regular basis
and has refused to provide medical and dental treatment for Gabriel. Accordingly,
the court denied Ruff's request for sole custody.

As to Gabriel's medical care, the court ordered Nunez to make all medical
decisions related to Gabriel, finding Nunez had "exhibited sincere concern" and
gone to "extraordinary lengths" to assure Gabriel received appropriate medical
care. Additionally, the court ordered the parties to equally divide all uncovered
medical expenses relating to Gabriel. Regarding outstanding medical bills, the
court ordered Nunez to pay Ruff $48 for medical expenses she had previously paid
but had not been reimbursed for.

As to visitation, the family court set forth a minimum visitation schedule but
explained the "parties may at any time deviate from [the schedule] . . . as they may
agree." The schedule provided Ruff with visitation once a month—coinciding with
Gabriel's school holiday schedule—and visitation over the summer. As to
visitation-related costs, the court ordered Ruff to pay the transportation costs of her
visitation and to fly Gabriel into and out of Newark Liberty International Airport.
Likewise, the court ordered Nunez to pay the transportation costs for his two
weeks' visitation over the summer and to fly Gabriel into and out of Charlotte
Douglas Airport.

The family court also set forth a holiday visitation schedule, which provided Nunez
visitation for Easter each year, Thanksgiving break during odd-numbered years,
and Christmas vacation during even-numbered years. Ruff received visitation for
Thanksgiving break during even-numbered years and Christmas vacation during
odd-numbered years, with visitation beginning on December 26 and thus not
including Christmas Eve or Christmas Day. Ruff also received visitation for
Gabriel's spring break each year, but the court ruled that if Gabriel's spring break
fell on the same week as Easter, Ruff's visitation would be cut short by three days
so that Gabriel could be with Nunez for Easter.

In regard to issues raised concerning the parties' ability to contact Gabriel when he
was in the other party's custody, the court set a phone schedule. The court ordered
the party with primary placement to provide a minimum of one call per week from
Gabriel to the party without physical placement. The court provided, however, that
the parties must make reasonable arrangements to allow Gabriel to talk on a more
frequent basis than once a week.

As to the alcohol-related restrictions on Ruff, the court noted Ruff had an ongoing
problem refraining from the use of alcohol in front of Gabriel. Therefore, the court
found the alcohol restrictions should continue. Specifically, the order provided
Ruff could not possess alcohol in her home or consume alcohol when Gabriel was
in her presence and care.

Regarding child support, the family court ordered Ruff to pay $475 per month in
child support and retroactive child support for a total of six months that Nunez had
physical custody of Gabriel. Although Ruff testified she currently had no income
because she was unemployed, she also testified she was expecting to receive
unemployment benefits after the trial ended on January 6, 2011 and was currently
looking for employment. Based on this testimony, the court found Ruff's
"unemployment benefits shall begin or [she] will have employment by the end of
January, 2011." Moreover, the court imputed income to Ruff consistent with the
income she received prior to losing her job. The court justified the imputation of
income because Ruff (1) "is able[-]bodied and capable of earning a living equal to
her income prior to the beginning of th[e] action," and (2) was employed during the
pendency of the action, except for a short period of time before and during the trial.

With regard to the GAL's fee, the family court ordered Ruff to pay the entire fee
because Ruff's "behavior resulted in a substantial balance due to the [GAL]." The
court explained that "the length of time this matter was pending [wa]s a direct
result of [Ruff]'s actions," and her child custody action was ultimately
unsuccessful.

II. Issue on Appeal

Ruff asserts on appeal the family court erred in making findings and conclusions
that were against the preponderance of the evidence—or in not making any
findings or conclusions as to "crucial" facts—when the court:

(1) Denied Ruff's request for sole custody;
(2) Continued to enjoin Ruff from consuming or possessing alcohol in Gabriel's
presence;
(3) Ordered holiday visitation;
(4) Ordered Ruff to pay transportation costs for her visitation;
(5) Ordered Ruff to obtain unemployment benefits or employment by the end of
January 2011;
(6) Imputed income to Ruff at the previous level she was paid before she
became unemployed;
(7) Ordered Ruff to pay retroactive child support;
(8) Ordered Ruff to pay half of Gabriel's uncovered medical expenses;
(9) Ordered Nunez to reimburse Ruff $48 for Gabriel's outstanding medical
bills;
(10) Set a telephone contact schedule;
(11) Granted Nunez the exclusive right to make all medical decisions related to
Gabriel; and
(12) Ordered Ruff to pay the GAL's fee in full.

We address each issue separately.

III. Standard of Review

On appeal from the family court, our standard of review is de novo. Argabright v.
Argabright, 398 S.C. 176, 179, 727 S.E.2d 748, 750 (2012). Therefore, we may
find facts in accordance with our view of the preponderance of the evidence. Id.
However, we are not required to disregard the family court's findings and "should
give great deference to [them] where matters of credibility are involved." Pirayesh
v. Pirayesh, 359 S.C. 284, 292, 596 S.E.2d 505, 510 (Ct. App. 2004). This is
especially important when cases involve the welfare and best interests of the child.
Latimer v. Farmer, 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004).

IV. Issues Raised By Ruff

1. Custody

"In a custody dispute, the paramount and controlling factor is the welfare and best
interests of the child." Patel v. Patel, 359 S.C. 515, 526, 599 S.E.2d 114, 119
(2004) (quoting Matthews v. Matthews, 273 S.C. 130, 132, 254 S.E.2d 801, 802
(1979)). When determining whether a change in custody is warranted, the analysis
centers on whether the transfer of custody is in the child's best interests. Latimer,
360 S.C. at 381, 602 S.E.2d at 35. When a non-custodial parent seeks a change in
custody, that parent must establish: "(1) there has been a substantial change in
circumstances affecting the welfare of the child and (2) a change in custody is in
the best interests of the child." Id. A change in circumstances justifying a change
in custody means "sufficient facts have been shown to warrant the conclusion that
the best interests of the child[] would be served by the change." Spreeuw v.
Barker, 385 S.C. 45, 59, 682 S.E.2d 843, 850 (Ct. App. 2009).

"A change in the custodial parent's residence is not in itself a substantial change in
circumstances affecting the welfare of the child[] that justifies a change in
custody." Walrath v. Pope, 384 S.C. 101, 105-06, 681 S.E.2d 602, 605 (Ct. App.
2009); see also Latimer, 360 S.C. at 382, 602 S.E.2d at 35 ("We decline to hold
relocation in itself is a substantial change in circumstances affecting the welfare of
a child."). Relocation is only one factor to consider, and "[i]t should not be
assumed that merely relocating and potentially burdening the non-custodial
parent's visitation rights always negatively affects the child's best interests."
Latimer, 360 S.C. at 382, 602 S.E.2d at 35. In determining whether a child's best
interests are served by relocation, our supreme court has considered the following
factors: (1) the potential advantages of the relocation; (2) the likelihood the move
will improve the quality of life for the custodial parent and child; (3) the integrity
of the motives of both parents in seeking the move or seeking to prevent it; and (4)
the availability of a realistic substitute visitation arrangement that will foster an
ongoing relationship between the non-custodial parent and child. Latimer, 360
S.C. at 384-85, 602 S.E.2d at 36-37.
We find Nunez should continue to enjoy primary placement of Gabriel, despite his
relocation to New Jersey. Ruff asserts a substantial change in circumstances
affecting Gabriel's welfare occurred when Nunez (1) went to New Jersey for two
months in the spring of 2009, (2) left Gabriel in her care during that time without
support, (3) failed to inform her where he was or when he would return to South
Carolina, and (4) later informed her he wanted Gabriel to move to New Jersey with
him. However, Nunez contradicted many of these allegations at trial. He testified
that while in New Jersey, he contacted Ruff on a daily basis and gave her
information regarding his whereabouts. He also testified he did not abandon
Gabriel without support because he continued to pay for daycare and medical
insurance for Gabriel.1 The court explicitly found Nunez's testimony "regarding
his family support to be credible."

Also, pursuant to the factors considered in Latimer, the relocation to New Jersey is
in Gabriel's best interests. Although the court did not delineate its consideration of
the Latimer factors in its order, by our own view of the preponderance of the
evidence, we believe Gabriel's relocation to New Jersey is in his best interests.2
First, as to the integrity of the parties' motives in seeking to move or challenge the

1
The exhibit submitted by Nunez only showed he made payments to Gabriel's
daycare through April 2007, which is not relevant to whether Nunez made
payments when he went to New Jersey during the spring of 2009. We believe this
exhibit neither proves, nor disproves, that he did not make payments to the
daycare. There is evidence, however, that Nunez did allow Gabriel's medical
insurance to lapse during this two-month time period, but Nunez has since
maintained insurance for Gabriel. All this evidence was before the family court
when it made its determination, and we believe the court appropriately weighed the
evidence in making its custody decision.
2
The Latimer court did not endorse or specifically approve one set of factors;
rather, the court set forth the various factors used by New York and Pennsylvania
state courts. 360 S.C. at 382-83, 602 S.E.2d at 35-36; see also Walrath, 384 S.C.
at 106, 681 S.E.2d at 605 (explaining our supreme court "has acknowledged,
without endorsing or specifically approving," factors that other states consider
when making a relocation custody determination). Ruff asserts the court erred in
not enumerating the factors required to be considered in making a custody
determination, but because our supreme court has not specifically approved a set of
factors, we find this argument unpersuasive.
move, we believe both parties' motives are legitimate. Nunez testified he moved to
New Jersey to attend college and ultimately become a teacher because he was laid
off3 from his job in South Carolina. Thus, his motive is based on an intent to
improve his education and financial situation, which positively affects Gabriel's
best interests. As to Ruff's motives, we believe she opposed the move because she
was surprised by Nunez's decision to relocate, and she desired regular and
meaningful contact with Gabriel. Ruff testified she and Nunez agreed they "would
be together . . . where it wouldn't make it impossible for [them] to . . . see [Gabriel]
all the time regularly." Ruff stated Nunez told her in the middle of March 2009
that he was not planning to move to New Jersey, but at the end of March, he
informed her he intended to move to New Jersey and take Gabriel with him.
Additionally, the GAL testified she did not believe Ruff was trying to get back at
Nunez in any way by filing the action. Based on these facts, we believe both
parties' motives are legitimate, so this factor does not affect either party negatively
in the overall custody determination.

Second, the advantages to Gabriel of Nunez's relocation appear to weigh in
Nunez's favor. The family court found Nunez's relocation resulted in him being in
a better position to care for Gabriel. Nunez stated his work schedule at his
previous job was sixty hours per week, but now his work and school schedule
allow him to be home when Gabriel gets home from school. Moreover, whenever
he has a scheduling conflict, Nunez's relatives are available to watch him. It also
appears Nunez has substantial family ties in New Jersey because approximately
twenty-four of his relatives live within five miles of his home. While Ruff
contends the court ignored the fact that Gabriel also has close family members
residing in South Carolina, the existence of this fact does not mean the move was
not in Gabriel's best interest, and the court appropriately exercised its discretion in
weighing the evidence presented on this issue. Additionally, Ruff testified Gabriel
attends church with Nunez and was baptized at this church. Overall, we find this
factor weighs in Nunez's favor because (1) Nunez is employed and pursuing an
education that will increase his earning potential; (2) Nunez and Gabriel have a
strong support system and stable family environment in New Jersey; and (3) Nunez

3
Although Nunez testified he was "laid off," there is evidence in the record
showing he was terminated for cause. Ruff argues his dishonesty with the court on
this issue is one of many "proven facts" affecting the resolution of the custody
issue because it is "directly relevant to [Nunez]'s lack of responsibility and
credibility." We disagree and believe many of the facts she alleges as "proven"
and "crucial" were in fact disputed and minimal in the overall determination.
has assumed the responsibility for Gabriel's moral upbringing by taking him to
church each week.

Third, we find Nunez's relocation will substantially improve his and Gabriel's
quality of life. First, for the reasons stated above, we believe this factor favors
Nunez. Second, Ruff's use and possession of alcohol around Gabriel—in violation
of the family court's order—weighs in Nunez's favor. Finally, Gabriel has a
difficult time adjusting to change because he suffers from ADHD and oppositional
defiance disorder (ODD). Because Gabriel is seeing a new therapist for his ODD
in New Jersey, attending church and school there, and participating in
extracurricular activities, we think it is in his best interests to remain in New
Jersey, where he has lived since September 2010.

Finally, as to the availability of a realistic substitute visitation arrangement, the
family court's order encourages both parties to work together to ensure each parent
receives reasonable visitation. The family court set forth a minimum visitation
schedule, which gives Ruff physical placement during Gabriel's summer break, and
one weekend per month visitation coinciding with Gabriel's holiday schedule at
school. Additionally, the family court set a monthly and holiday visitation
schedule and ordered the parent with physical placement to provide at least one
call per week to the parent without physical placement. The court noted that
because "electronic communication . . . has been a challenge for [the parents]," the
parties were encouraged to "use other forms of communications to allow the party
who does not have physical placement . . . to enjoy a close and loving relationship
with [Gabriel] while they are apart." Although Ruff contends Nunez's relocation to
New Jersey makes their agreement regarding visitation unworkable, it appears Ruff
has the opportunity to maintain a close relationship with Gabriel through visitation,
telephone contact, and other forms of communication. Therefore, we find this
factor favors Nunez.

Based on the above analysis, we find Gabriel's relocation to New Jersey is in his
best interests. Ruff argues, however, that the court ignored testimony and evidence
that was favorable to her and decisive on the issue of custody. First, she claims the
court failed to consider the GAL's testimony and report as it relates to custody.
"The role of the guardian ad litem in making custody recommendations is to aid,
not direct, the court. Ultimately, the custody decision lies with the trial judge."
Shirley v. Shirley, 342 S.C. 324, 339, 536 S.E.2d 427, 435 (Ct. App. 2000).
Although the GAL's report contradicted some of Nunez's testimony, it ultimately
found both parents equally suitable to care for Gabriel, which is not inconsistent
with the court's decision to allow Gabriel to remain in Nunez's custody. Also, we
disagree that the court "ignored" the GAL's testimony because the order stated the
ruling was based on "the testimony of the parties and their witnesses, and . . . the
evidence submitted at trial." We believe the court gave proper weight and
consideration to the recommendation when determining the custody issue.

Second, Ruff claims the court ignored evidence that allegedly showed Nunez
exhibited financial and moral irresponsibility, violated two court orders regarding
Gabriel's medication, and falsely represented certain facts to the court. Once again,
we disagree that the court ignored evidence that was before it when it made its
determination. Also, because we lack the opportunity to directly observe the
witnesses, we "should give great deference to the family court's findings where
matters of credibility are involved." Pirayesh, 359 S.C. at 292, 596 S.E.2d at 510.
Considering Ruff's own misconduct that is highlighted in the court's order—her
two violations of the temporary order's restrictions regarding alcohol, her loss of
custody due to these violations, the finding that her conduct throughout litigation
was "self-serving and for the purpose of gaining an advantage in the [custody]
action," and the finding that her behavior increased the cost of litigation—we find
the court properly weighed the evidence and correctly decided the custody issue.

We also disagree with Ruff's contention that the family court did not make specific
findings regarding Gabriel's best interests and the parties' character, fitness, and
attitude as they impact Gabriel. See High v. High, 389 S.C. 226, 244-45, 697
S.E.2d 690, 699 (Ct. App. 2010) (stating in making a custody determination, "the
family court should consider the character, fitness, attitude, and inclinations on the
part of each parent as they impact the children"). The order contains clear
credibility and fitness determinations regarding both parties. In fact, the order
dedicates three and a half pages to explaining why it should not grant custody to
Ruff, even if she proved a substantial change in circumstances.

However, we are inclined to agree that there is no evidence in the record to support
the family court's finding that Ruff was uncooperative in scheduling visitation
while Nunez was in New Jersey. The GAL's report provided "[Ruff] has
cooperated with [Nunez]'s visitation in New Jersey," and Nunez did not testify to
the contrary. Thus, the only evidence in the record on this point contradicts the
finding that Ruff was uncooperative. Although we find there is no evidence in the
record to support this finding, and thus cannot affirm it, we do not believe it
changes the overall determination as it relates to custody.

Based on the foregoing discussion, we affirm the family court's refusal to grant a
change in custody because we find Ruff failed to show (1) there was a substantial
change in circumstances affecting Gabriel's welfare, and (2) a change in custody
would be in Gabriel's overall best interests.

2. Alcohol Restrictions

Ruff contends the court erred in continuing to enjoin her from possessing or using
alcohol in Gabriel's presence because Nunez presented no evidence proving the
restriction is warranted. In the alternative, Ruff contends both parties should be
subject to a restriction that only limits excessive consumption of alcohol.

We recommend affirming the family court's decision to continue the alcohol-
related restrictions. The restrictions are strong but reasonable in light of the history
of this case and the evidence presented. At the temporary hearing, Nunez told the
court Ruff played drinking games with friends while Gabriel was present. This
evidence caused the court to restrain Ruff from consuming or keeping alcohol in
her home while Gabriel was in her physical custody. However, the court later
found Ruff in contempt for violating this order twice, once for consuming alcohol
and once when the GAL conducted an unannounced home visit and found beer in
Ruff's garage refrigerator. At trial, a private investigator testified he observed Ruff
consuming alcoholic beverages while Gabriel was in her care and then driving
after drinking with Gabriel in her automobile on several occasions. Given Ruff's
past violations of the temporary order and the evidence presented, we find the
continuing alcohol restriction is reasonable and appropriate.

As to her argument that both parties should be restricted from excessive alcohol
consumption, the record does not support such a request. Ruff's counsel even
conceded at the temporary hearing that Nunez does not have a "drinking problem."
In family court, a party seeking a restraining order "must show such facts and
circumstances" proving it is warranted. Calcutt v. Calcutt, 282 S.C. 565, 572, 320
S.E.2d 55, 59 (Ct. App. 1984). Because Ruff presented no evidence that a
restraining order against Nunez is necessary, we deny her request because it would
impose an unwarranted restraint upon him.

3. Visitation

Ruff argues the family court erred in setting the visitation schedule because the
provisions are unfair to her and unsupported by the evidence. Specifically, she
contends (1) her Christmas visitation is unfair because she will never get to spend
Christmas Eve or Christmas Day with Gabriel; (2) it is unfair that if Easter falls
during spring break, Ruff's spring break visitation is shortened by at least three
days because Gabriel must return to New Jersey for Easter; and (3) any holiday
visitation time should be in addition to her one weekend per month.

"When awarding visitation, the controlling consideration is the welfare and best
interest of the child." Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158
(1996). Although we find the majority of the family court's order concerning
visitation to be in Gabriel's best interests, we believe the days included in Ruff's
Christmas visitation should be modified. Currently, the final order only provides
Ruff with Christmas visitation during odd-numbered years, which begins
December 26. This schedule does not permit Ruff to ever enjoy visitation over
Christmas Eve and Christmas Day. The order did not state why visitation should
not include these days, and Nunez puts forth no argument on this point. We think
it would be in Gabriel's best interests if Ruff's Christmas visitation during odd-
numbered years included Christmas Eve and Christmas Day because Gabriel
shares a loving relationship with both parents. Accordingly, we modify the order
so that Ruff's Christmas visitation begins December 23.

Regarding Easter and spring break visitation, we disagree that Ruff's spring break
visitation should be shortened when it coincides with Easter. The family court
gave Nunez visitation for Easter and gave Ruff visitation during Gabriel's spring
break. However, during school years where Easter occurs during Gabriel's spring
break, the order shortens Ruff's spring break visitation by at least three days so
Gabriel is with Nunez for Easter. Although we acknowledge Easter is a religious
holiday and Gabriel attends church with Nunez in New Jersey, it is important for
Ruff to receive the full amount of visitation allotted to her and to also have the
opportunity to celebrate Easter with Gabriel. Accordingly, we modify the court's
order so that when Easter coincides with Gabriel's spring break, Ruff's visitation
includes Easter.

Ruff's remaining argument is that she should essentially get two visitations per
month during the months she has holiday visitation. However, we believe the
family court properly took into account Gabriel's best interests when limiting
visitation. Requiring Gabriel to travel back and forth from New Jersey, as an
unaccompanied minor, multiple times in one month may put too much strain on
him and adversely impact his education and involvement in extracurricular
activities. Moreover, the family court made additional provisions for alternate
forms of visitation, i.e., telephone contact. Therefore, we affirm this finding.
4. Transportation Costs

Ruff contends requiring her to pay "all transportation costs" is unfair because
Nunez is the party who moved away and made the costs necessary. She argues
that if she must pay transportation costs, she should be allowed to use the most
economical means of transporting Gabriel.

We find the family court correctly determined this issue. Initially, we note Ruff
mischaracterizes the family court's order because she contends it is unfair for her to
be responsible for paying all travel costs. However, the court ordered Ruff to pay
only the travel costs associated with her own visitation; Nunez remains responsible
for his visitation costs during the summer, when Ruff has primary custody of
Gabriel. Second, the family court set forth which airports each parent is required
to fly Gabriel into and out of because it found "visitation has been an ongoing
irritant between the parties during the pendency of this action." The order only
indicates which airports each parent must use and does not prohibit Ruff from
using discounts or certain airlines. Thus, she may still use the most economical
means of transporting Gabriel, provided she flies him into and out of Newark
Liberty International Airport. For these reasons, we disagree with Ruff's argument
on this issue and affirm the family court's ruling.

5. Unemployment Benefits or Employment

The court found Ruff's "unemployment benefits shall begin or [she] will have
employment by the end of January 2011," which gave Ruff approximately twenty-
five days to secure either employment or unemployment benefits. Ruff contends
this finding is unsupported by the evidence because no party presented evidence
concerning the probability of either happening within the family court's timeline.
She also argues it is unfair because she has no control over either option.

We find the record supports the court's finding. Ruff testified she worked all of
Gabriel's life; she had never been fired from a job; she was unemployed at the time
of trial because the company she worked for closed its office; and she was
currently looking for employment. Ruff also told the court she had been receiving
unemployment benefits shortly before trial but was not currently receiving them
because she had to re-file her paperwork. However, she stated she intended to do
so after the trial concluded. Ruff's own testimony indicates it is reasonable for the
court to expect her to either secure employment or unemployment benefits by
January 31, 2011. Accordingly, we affirm the family court's finding.
6. Child Support

As to the finding that Ruff should pay $475.00 per month in child support, Ruff
argues the court erred when it (1) imputed income to her at the amount she was
paid before she became unemployed, (2) set the amount of child support, and (3)
found she has been unemployed but has maintained the same level of income.

As to the first issue, "[i]f the court finds that a parent is voluntarily unemployed or
underemployed, it should calculate child support based on a determination of
potential income which would otherwise ordinarily be available to the parent."
S.C. Code Ann. Regs. 114-4720(A)(5) (2012); see also Patel, 359 S.C. at 532, 599
S.E.2d at 123 ("It is proper to impute income to a party who is voluntarily
unemployed or underemployed."). In calculating the amount of income to impute,
"the court should determine the employment potential and probable earnings level
of the parent based on that parent's recent work history, occupational
qualifications, and prevailing job opportunities and earning levels in the
community." Regs. 114-4720(A)(5)(B); see also Sanderson v. Sanderson, 391
S.C. 249, 256, 705 S.E.2d 65, 68 (Ct. App. 2010).

Ruff does not contend the court erred in imputing income to her but only that it
imputed the incorrect amount; thus, we need not analyze whether the court's
decision to impute income was proper. As to the amount of income imputed to
her, the court made the following findings when it ruled:

The Court finds that [Ruff] is able[-]bodied and capable
of earning a living equal to her income prior to the
beginning of this action. The Court finds that she has
been employed almost the entire time litigation was
pending and her income was relatively consistent, except
for a short period of time prior to the trial of this case.
Therefore, the Court finds it appropriate to impute
income consistent with the income [she] enjoyed prior to
losing her job. In finding that [Ruff] should have income
imputed to her, this Court notes that [Ruff] changed jobs
at least once during the pendency of this action with less
than thirty (30) days in between positions. The Court
further finds that without the litigation time constraint,
and with [Gabriel] residing with [Nunez], [Ruff] should
be able to obtain employment.
From its ruling, it appears the court took into consideration her employment
potential and probable earning level based on her recent work history. Although
Ruff was unemployed at the time of the hearing, she testified: (1) she had worked
all of Gabriel's life; (2) she had been employed the last four and a half years; (3)
she was unemployed at the time of trial because she was laid off; (4) she was
currently capable of working; and (5) she was looking for a job. We believe this
evidence supports the finding that Ruff is capable of working at the income level
she enjoyed over the past four and a half years.

As to Ruff's argument that the court erred in setting the child support amount, she
contends the family court simply echoed the income stated in the prior order
because her financial declaration showed she could no longer pay child support.
Because we find the court correctly imputed to Ruff the same income she
previously made, we further find the court correctly based the amount of child
support on this income.

7. Retroactive Child Support

The family court's order required Ruff to pay retroactive child support for a total of
six months under the terms of the temporary order. The temporary order issued in
2009 (1) gave Ruff primary placement during the 2009-2010 school-year and child
support in the amount of $340 per month, and (2) gave Nunez primary placement
during June and July of 2009, with $475 per month in child support for those
months. Ruff paid child support for June and July of 2009 but did not pay in 2010.
Ruff claimed she tried to pay child support in 2010, but the court would not accept
her payment because the language of the temporary order only required Ruff to pay
for June and July of 2009. The family court ordered her to pay child support for
those two months and also ordered her to pay child support for the fall of 2010
when Nunez had temporary custody due to Ruff's loss of custody in September
2010.

Ruff contends the temporary order issued in 2009 only contemplated payments for
June and July of 2009, not 2010, so she should not have to pay retroactive child
support for those months. Moreover, she argues the court did not order support for
Gabriel during the fall of 2010 when it removed Gabriel from Ruff's custody; thus,
Ruff should not have to pay retroactive support for those four months. We
acknowledge the temporary order only required Ruff to pay child support for the
summer of 2009, and the order removing Gabriel from Ruff's custody did not
address the issue of child support. However, the family court's power to award
retroactive child support depends on the facts and circumstances of each case,
Sutton v. Sutton, 291 S.C. 401, 408, 353 S.E.2d 884, 888 (Ct. App. 1987), and we
believe the facts of this case warrant such an award. Nunez claims that because the
docket was back-logged, he had custody of Gabriel during the summer of 2010.
Thus, equity requires the temporary order's child support requirements to continue
for that summer, notwithstanding the fact that the order only contemplated
payment for one summer. And for the same reasons, the parties should have
continued to pay child support during the following school year as well, meaning
Nunez would have owed Ruff child support for the 2010 school year. However,
Ruff lost custody of Gabriel due to her willful contempt of court, so it became
Ruff's responsibility to pay child support. For these reasons, the court correctly
found Ruff owed child support for the summer and fall of 2010.

Ruff also argues that because the court did not order Nunez to pay retroactive
support when he went to New Jersey for two months in March 2009 and left her
without support, any back child support due from her should be offset against any
support Nunez should have paid to Ruff during that time. When Nunez went to
New Jersey in 2009, however, the support agreement in effect at the time did not
provide for any child support payments. Because child support payments were not
contemplated by the parties at that time, we deny Ruff's request to offset her
retroactive child support.

As to Ruff's remaining arguments on this issue, we find they are not preserved for
our appellate review because Ruff did not argue them to the family court or in her
Rule 59(e), SCRCP, motion to alter or amend. See Marchant v. Marchant, 390
S.C. 1, 7, 699 S.E.2d 708, 711 (Ct. App. 2010) ("A point not raised to and ruled
upon by the family court will not be considered on appeal.").

8. Uncovered Medical Expenses

The family court ordered the parties to divide all of Gabriel's uncovered medical
expenses evenly. Ruff contends the family court failed to follow the law of South
Carolina in ordering her to pay half of the uninsured medical bills, but she did not
specify which law the family court failed to follow and cites no authority to
support her argument. We find Ruff abandoned this argument on appeal. See Judy
v. Judy, 384 S.C. 634, 644, 682 S.E.2d 836, 841 (Ct. App. 2009) (holding appellant
abandoned issue on appeal because no legal authority cited to support argument).
9. Outstanding Medical Bills

At the time of trial, the court found there were outstanding medical expenses
totaling $190. Additionally, the court found Ruff had previously paid $143 in
outstanding medical bills, while Nunez had paid only $95. After concluding that
"medical bill reimbursements have been a substantial problem in this case" and that
Nunez offered credible testimony regarding the payments of medical expenses and
reimbursements, the court ordered Nunez to reimburse Ruff $48 within ninety days
of the order.

Ruff argues the findings stated above are unsupported by evidence in the record.
Although Ruff appeals this issue, Ruff's entire argument on this point consists of
the following:

As to the outstanding medical bills, there was no
testimony or evidence as to the exact amount owed by
one party to the other, except that [Ruff] testified that the
amount is "less than three hundred dollars." This finding
by the Court is simply not supported by any evidence of
record whatsoever.

Ruff only argues the finding is not supported by the evidence and does not assert
she is owed more than $48 or request we remand the issue to the family court. If
we were to agree with her argument, we would vacate the award due to the lack of
evidence supporting the findings. However, in light of the fact that (1) Ruff is the
party appealing this issue; (2) the record contains evidence that there were
problems with Nunez reimbursing Ruff for medical expenses; (3) Ruff testified she
was owed "less than three hundred dollars;" (4) the court made detailed findings of
medical expenses, with the figures including cent values, and (5) the court
explicitly stated it made these findings "after reviewing the exhibits" and testimony
presented at trial, we believe the evidence, exhibits, and testimony—in the totality
of what the court considered—is sufficient to affirm the court's ruling on this issue.
Thus, we affirm the award.

10. Telephone Contact

The order set a phone schedule that required the party with physical placement to
provide a minimum of one call per week from Gabriel to the party without physical
placement. Ruff argues "the telephone contact allowed—one telephone call per
week—is so restrictive . . . and so unfair" that it is meaningless. Moreover, she
contends the one call per week schedule will only serve to limit her contact with
Gabriel, "as it has been proven during the course of this litigation that [Nunez] will
not cooperate in allowing even Court-ordered telephone and Skype visitation,
much less allow extra 'agreed-upon' visitation."

Initially, we note Ruff mischaracterizes the court's order. The one call per week is
merely a minimum of what the party with physical placement must provide to the
other party. In fact, the order (1) encourages "free and reasonable telephone
access" for the party without physical placement, (2) promotes the use of "other
forms of communication" so that the party may "enjoy a close and loving
relationship with [Gabriel] while they are apart," and (3) requires both parties to
make reasonable arrangements to allow Gabriel to talk "on a more frequent basis
as" the parties' schedules allow. We find phone schedule reasonable and affirm.

11. Medical Decisions

Ruff argues the finding that Nunez shall make all medical decisions related to
Gabriel is against the greater weight of the evidence and could prove "disastrous"
for Gabriel. In support for her argument, she contends Nunez took Gabriel off his
ADHD medication in violation of two court orders; he did not appear at either
contempt hearing regarding this violation; and he exhibited denial of Gabriel's
diagnosis. Moreover, she asserts the court did not consider (1) her own testimony
and the GAL's testimony that showed it was Ruff who took appropriate care of
Gabriel's medical and therapy needs, and (2) testimony that showed Gabriel's
behavior improved while in her custody but regressed while in Nunez's custody.

We believe allowing Nunez to make all medical decisions is in Gabriel's best
interest because it provides a clear chain of command regarding Gabriel's medical
needs. Moreover, we are not persuaded that this will prove "disastrous" for
Gabriel. The record shows Nunez was uncertain Gabriel needed to be treated with
medication, so he had Gabriel reevaluated, which required him to be taken off his
medications. Once a physician recommended the medication be maintained,
Nunez followed the doctor's recommendations. Nunez testified he has informed
himself about the disorder and the effects of the medications, as well as researched
other non-medicinal techniques for dealing with the disorder. Based on this
evidence, the court determined Nunez's decisions regarding Gabriel's ADHD
medications were reasonable because he "exhibited sincere concern" and has "gone
to extraordinary lengths" to assure Gabriel received appropriate medical care. We
affirm the court's ruling because the facts were in dispute and the court was in the
best position to determine the credibility of the witnesses and weigh the evidence
presented by the parties.

Additionally, Ruff contends the family court erred in not addressing Gabriel's
ADHD and ODD. She argues that despite the GAL's conclusion that Gabriel's
ADHD medications and ODD counseling must be addressed in the final order, the
order failed to make findings and conclusions as to this issue. We do not believe,
however, that the family court was in any position to assume the role of a
physician and give directives as it relates to Gabriel's medical treatment. The court
determined Nunez's actions relating to Gabriel's medical treatment were reasonable
and granted him the authority to make all the decisions regarding his medical
treatment in the future. We believe this sufficiently "address[ed] Gabriel's
diagnosed ADHD and ODD."

12. Guardian Ad Litem's Fee

Ruff argues the court's finding that she should be required to pay the entire GAL's
fee is not supported by the evidence presented at trial. "An award of guardian ad
litem fees lies within the sound discretion of the trial judge and will not be
disturbed on appeal absent an abuse of discretion." Shirley, 342 S.C. at 341, 536
S.E.2d at 436. The same equitable considerations that apply to attorney's fees also
apply to GAL's fees. Garris v. McDuffie, 288 S.C. 637, 644, 344 S.E.2d 186, 191
(Ct. App. 1986). A family court must first consider the following factors in
determining whether to award GAL's fees: "(1) each party's ability to pay his or her
own fee; (2) the beneficial results obtained by the attorney; (3) the parties'
respective financial conditions; and (4) the effect of the fee on each party's
standard of living." Farmer v. Farmer, 388 S.C. 50, 57, 694 S.E.2d 47, 51 (Ct.
App. 2010). After deciding to award GAL's fees, a family court must then
consider the following factors in deciding how much to award: "(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." Id.

In requiring Ruff to pay the GAL's fee in full, which amounted to approximately
$10,000, the court stated:

The Court finds that the length of time this matter was
pending is a direct result of [Ruff]'s actions. The court
finds that [Ruff] was unsuccessful in her action as it
relates to a substantial change of circumstance and the
Court finds that [her] behavior resulted in a substantial
balance due to the Guardian ad Litem. This Court finds
that [Ruff] should pay the Guardian's Fees in full. [R]uff
shall be responsible for the outstanding balance of $7,864
due to the Guardian. [R]uff shall reimburse [Nunez]
$2,256 for the payments he has made to the Guardian.

...

In considering the allocation of the Guardian Fees, the
Court will note that it is not awarding attorney fees and
costs to either party. The Court finds that while [Nunez]
was the prevailing party, and acted reasonably during the
course of this litigation, and had [Ruff] conducted herself
similarly, neither party would have the substantial
attorney fees and costs or the substantial Guardian fees
set forth above.

We acknowledge the court did not delineate its consideration of the factors in
ordering Ruff to pay the GAL's fees. However, an appellate court may, "where the
record is sufficient, make its own findings of fact in accordance with the
preponderance of the evidence." Thomson v. Thomson, 377 S.C. 613, 623, 661
S.E.2d 130, 135 (Ct. App. 2008) (citation omitted); see also Farmer, 388 S.C. at
57-58, 694 S.E.2d at 51 (affirming an award of attorney's fees based on its own
findings of fact because the family court did not explicitly consider all the factors
in making the award). In doing so, we are not required to disregard the findings of
the family court, particularly those relating to credibility. See Pirayesh, 359 S.C.
at 292, 596 S.E.2d at 510.

Giving deference to the family court's findings and credibility determinations, we
affirm the decision. The order provided many examples of how Ruff's behavior
caused the GAL's fee to be substantial, including (1) Ruff's violations of the
temporary order, which caused her to lose custody of Gabriel, (2) the finding that
Ruff's actions relating to Gabriel were "self-serving and for the purpose of gaining
an advantage" in the custody action, (3) the finding that Ruff used the issue of
medication to discredit Nunez and "sway the Guardian to support her action," (4)
the finding that Ruff refused to allow visitation during the pendency of the action,
(5) the finding that Ruff "chose to interpret the Order to her advantage rather than
making decisions that would be in the child's best interest," (6) the finding that she
has not cooperated in having prescriptions filled and paying medical bills, and (7)
the finding that "she has frustrated [Nunez]'s attempts to seek second opinions and
advice from medical professionals." Additionally, the court awarded only the
GAL's fee and did not award attorney's fees or additional costs. The family court
has broad discretion when determining the amount of costs to award. Farmer, 388
S.C. at 57, 694 S.E.2d at 50. In light of this fact and for the reasons described
above, we affirm the award and find the family court did not abuse its discretion.

V. Conclusion

For the reasons stated above, we affirm the court's findings and legal conclusions
related to custody, modify the findings related to Ruff's Christmas and spring break
visitations, and affirm the other findings and legal conclusions of the court.

AFFIRMED IN PART AND MODIFIED IN PART.4

FEW, C.J., GEATHERS and LOCKEMY, JJ., concur.

4
We decided this case without oral argument pursuant to Rule 240, SCACR.