Jones v. Jones

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

Melissa Jones, Appellant,

v.

Murray Keith Jones, Respondent.

Appellate Case No. 2017-001587

Appeal From Marlboro County
Michael S. Holt, Family Court Judge

Unpublished Opinion No. 2020-UP-134
Heard September 11, 2019 – Filed May 6, 2020

AFFIRMED

Cheryl Turner Hopkins, of Law Office of Cheryl Turner
Hopkins, of Florence, and Amy Kristan Raffaldt, of
Myrtle Beach, both for Appellant.

Janet Dawn Altman Paschal, of Curry & Paschal Law
Firm, P.A., of Dillon, and Everett Joseph Mercer, of
Sumter, both for Respondent.

PER CURIAM: This appeal arises from the divorce of Melissa Jones (Wife) and
Murray Keith Jones (Husband). Wife appeals the family court's final order,
arguing the family court erred in: (1) awarding custody of the parties' daughter
(Daughter) to Husband and, in so doing, making factual determinations that lacked
evidentiary support; (2) failing to admit Husband's medical records; (3) setting the
visitation schedule; (4) failing to address the dependent tax exemption; (5)
calculating her child support obligation; and (6) failing to award her custody or
visitation of Husband's son from another relationship. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:

1. We find awarding custody to Husband is in Daughter's best interest because the
record shows: (1) Husband took steps to improve his life; (2) Wife exercised
questionable judgment; (3) Wife continuously discouraged the parent-child
relationship between Husband and Daughter; and (4) in Husband's custody,
Daughter would live with her half-brother, who is close in age, and she would be
able spend more time with her grandparents, who live close by. See McComb v.
Conard, 394 S.C. 416, 422, 715 S.E.2d 662, 665 (Ct. App. 2011) ("In a child
custody case, the welfare of the child and what is in the child's best interest is the
primary, paramount, and controlling consideration of the court."); Simcox-Adams v.
Adams, 408 S.C. 252, 260, 758 S.E.2d 206, 210 (Ct. App. 2014) (stating that in
determining the best interest of the child, the family court should "consider several
factors, including: who has been the primary caretaker; the conduct, attributes, and
fitness of the parents; the opinions of third parties, including the guardian ad litem,
expert witnesses, and the children; and the age, health, and gender of the
children"); S.C. Code Ann. § 63-15-240(B) (Supp. 2019) (listing seventeen factors
the family court may consider in determining the best interest of the child); § 63-
15-240(B)(6) (providing the family court may consider "the actions of each parent
to encourage the continuing parent-child relationship between the child and the
other parent, as is appropriate, including compliance with court orders" in
determining a custody arrangement that is in the best interest of the child); § 63-
15-240(B)(5) (stating that in determining the best interest of the child in deciding
custody, the family court may consider "the past and current interaction and
relationship of the child with each parent, the child's siblings, and any other person,
including a grandparent, who may significantly affect the best interest of the
child"). Wife challenged many of the family court's factual findings, which largely
concerned matters of credibility, for which we give considerable deference to the
family court. We find the record supports the family court's finding that Wife was
not credible. See Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011)
("[W]hile retaining the authority to make our own findings of fact, we recognize
the superior position of the family court judge in making credibility
determinations." (footnote omitted)); id. at 390, 709 S.E.2d at 654 ("The highly
fact-intensive nature of family court matters lends itself to a respect for the factual
findings of our able and experienced family court judges who are in a superior
position to assess the demeanor and credibility of witnesses.").

2. The family court did not err in refusing to admit Husband's medical records
from eight to eleven years prior to trial due to the remoteness of the information in
the records and their questionable relevance. See High v. High, 389 S.C. 226, 239,
697 S.E.2d 690, 696 (Ct. App. 2010) ("A family court's ruling on the admission or
exclusion of evidence will only be reversed if it constitutes an abuse of discretion
amounting to an error of law. Evidence is relevant if it tends to establish or make
more or less probable some matter in issue upon which it directly or indirectly
bears; however, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice." (citation omitted));
Rule 7(c), SCRFC ("The following documents and written statements shall be
admissible in evidence without requiring that the persons or institution issuing the
documents or statements be present in court: . . . (c) The written statement by a
physician showing that a patient was treated at certain times and the type of
ailment . . . ."). Additionally, the family court properly excluded a letter from the
Georgia Department of Family and Child Services because the letter, which lacked
details of the investigation, did not rise to the level of a "written report" of an
agency. See Rule 7(d), SCRFC ("The following documents and written statements
shall be admissible in evidence without requiring that the persons or institution
issuing the documents or statements be present in court . . . a written report of the
Department of Social Services or other agency, reporting the home investigation or
any other report required by the court. . . ." (emphasis added)). In any event, Wife
questioned Husband extensively about his anxiety, medications, past drinking, and
alleged anger issues; thus, Wife was not prejudiced by the family court's exclusion
of these records.

3. We find the family court's visitation schedule was in Daughter's best interest
because it allowed for ample visitation with Wife while also providing stability for
Daughter with Husband having primary custody. See Smith v. Smith, 386 S.C. 251,
272, 687 S.E.2d 720, 731 (Ct. App. 2009) ("The welfare and best interests of the
child are the primary considerations in determining visitation.").

4. The issue of the dependent tax exemption is not preserved for our review
because Wife did not raise this issue at trial or in her Rule 59(e), SCRCP, motion.
See Srivastava v. Srivastava, 411 S.C. 481, 487, 769 S.E.2d 442, 446 (Ct. App.
2015) ("To preserve an issue for appellate review, the issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the [family]
court." (alteration in original) (quoting Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d
51, 54 (Ct. App. 2006))).

5. Wife's argument that the family court erred in calculating her child support
because Husband was voluntarily underemployed is unpreserved for our review
because she failed to raise it to the family court. See Srivastava, 411 S.C. at 487,
769 S.E.2d at 446 ("To preserve an issue for appellate review, the issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the [family] court." (alteration in original) (quoting Doe, 370 S.C. at 212, 634
S.E.2d at 54)); id. at 488, 769 S.E.2d at 446 (holding wife failed to preserve issues
of income imputation and deviation from the Child Support Guidelines because she
failed to file a Rule 59(e) motion for the family court to consider them); Marchant
v. Marchant, 390 S.C. 1, 7, 699 S.E.2d 708, 711 (Ct. App. 2010) (holding wife
failed to preserve issue of husband's voluntarily underemployment because
although she "alluded to the fact Husband was capable of earning more, she did not
request a finding that Husband was voluntarily underemployed").

6. The issues of custody and visitation of Husband's son from another relationship
are not preserved for our review because Wife agreed to the dismissal of these
claims and conceded they are not preserved. See TNS Mills, Inc. v. S.C. Dep't of
Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a
lower court may not be argued on appeal.").

AFFIRMED.

HUFF, WILLIAMS, and MCDONALD, JJ., concur.