Patterson v. Patterson

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Kimberly Patterson,       
Appellant,

v.

Yancey Patterson,       
Respondent.

Appeal From Cherokee County

Georgia V. Anderson, Circuit Court
Judge

Unpublished Opinion No. 2005-UP-112

Submitted February 1, 2005 – Filed February
14, 2005

AFFIRMED

William G. Rhoden, of Gaffney, for Appellant.

Yancey Patterson, pro se, of Blacksburg, for Respondent.

PER CURIAM:  This is an appeal of the family
court’s decision in favor of Yancey Patterson (Father) on Kimberly Patterson’s
(Mother) motion for reduction in child support.  We affirm.1

FACTS

Yancey Patterson, Father, and Kimberly Patterson,
Mother, were formerly married.  In 2002, Father received custody of the couple’s
three children.  Mother received standard visitation rights “contingent upon
[Mother] providing [Father] with monthly verification that she has seen and
met with her mental health doctor and/or counselor.”  The family court gave
Father the right to suspend visitation if Mother did not comply with this order. 

Shortly thereafter, Mother was admitted to inpatient
treatment at Charter Hospital for alcohol abuse.  Upon leaving Charter, Mother
was arrested for her third driving while intoxicated (DUI) offense, though she
was only convicted of a DUI 2nd.  She then admitted herself into Patrick B.
Harris Hospital.  Following her inpatient treatment, Father suspended Mother’s
visitation with the children.  Mother also successfully completed an outpatient
treatment program at Cherokee County Alcohol Commission. 

In August 2003, Mother made a motion for reduction
of child support and a contempt motion against Father for not allowing her to
see the children.  Husband answered and counterclaimed for child support arrearages
and to terminate or restrict Mother’s visitation rights.  At a temporary hearing,
the trial court found Mother had significant alcohol abuse problems.  However,
it also recognized that “it appears these problems have subsided and she is
continuing counseling.” 

At the final hearing, following Mother’s presentation
of her case, the family court found in favor of the Father without the Father
presenting any evidence.  The trial court determined that Mother “is capable
of obtaining employment and is not entitled to a reduction or termination of
her child support.”  However, while the original support rate of $127.15 per
week was to continue to accrue, Mother only had to pay $50 per week until the
final disposition of her social security disability claim.  This appeal followed. 

STANDARD OF REVIEW

In appeals from the family court, this court has
authority to find the facts in accordance with our own view of the preponderance
of the evidence. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d
154, 157 (1996).  This broad scope of review, however, does not require us to
disregard the findings of the trial court.  Stevenson v. Stevenson,
276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  We are mindful that the trial
court, which saw and heard the witnesses, was in a better position to evaluate
their credibility and assign comparative weight to their testimony.  Bowers
v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).

LAW/ANALYSIS

I. Involuntary Dismissal

Mother claims the trial court
erred in granting a directed verdict2
sua sponte for Father at the conclusion of her case.  We disagree.

Mother never objected to the family
court’s action on the record filed with this court.  “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 judge to be preserved for appellate review.” 
Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). 
Accordingly, this issue is not preserved for our review.

II. Child Support

Mother claims the trial court erred in not reducing
her child support obligation even though she was no longer employed.  We disagree. 

The trial court can modify prospective child support
awards as circumstances warrant, but usually only upon a showing of changed
circumstances, including the ability of a supporting parent to pay.  Calvert
v. Calvert, 287 S.C. 130, 137, 336 S.E.2d 884, 888 (Ct. App. 1985).  Furthermore,
“to warrant a modification in . . . child support, the change of circumstances
must be either substantial or material.”  Id. at 138, 336 S.E.2d at 888. 
The amount of child support awarded is within the sound discretion of the trial
court whose decision will not be disturbed on appeal absent an abuse of discretion. 
Millis v. Millis, 282 S.C. 610, 613, 320 S.E.2d 66, 67 (Ct. App. 1984). 

Mother testified that a doctor from Charter told her
she could not work, though she provided no affidavit to that effect.  Susan
Lineberger, Mother’s counselor, also testified that Mother’s “psychiatric limitations
would make it almost impossible for anything except a sheltered workshop setting,
you know, where they just work for an hour or two a day.”  However, Lineberger
made a contrary statement to the unemployment office.  Mother discounted her
own witness’s contrary statement to the unemployment office that Mother was
“okay to return to work on 3-11-2003” by arguing that “Lineberger is not a doctor. 
She’s a counselor.”  Mother also admitted to signing numerous documents at the
unemployment office stating that she was able to work. 

Although Mother had no income sources other than her
family, they contributed significant amounts towards her child support payments
and housing expenses.  The trial court determined that they could continue to
do so.  At the time of trial, Mother was also pursuing a social security disability
claim, which the trial court recognized had already been denied twice. 

Based on this evidence, the trial court was “not
satisfied [Mother was] disabled and [could not] work.”  The trial court was
in a better position to evaluate the parties’ credibility and assign comparative
weight to their testimony.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d
610, 613 (Ct. App. 2002).  Therefore, we find the trial court acted within its
discretion in deciding to retain the current child support obligation.  The
order of the trial court contemplated Mother’s situation and provided a reasonable
procedure to review and evaluate any changed circumstances in the processing
of her disability claim.  In its order the court set up a review every ninety
days of the status of Mother’s social security claim.  We will not disturb this
decision. 

CONCLUSION

For the reasons stated herein, the trial court’s
decision is hereby

Affirmed.

GOOLSBY, HUFF and STILWELL, JJ., concur.

1 We decide this case without oral argument pursuant
to Rule 215, SCACR.

2 For a bench trial it would have been an involuntary
nonsuit rather than a directed verdict.