Perry v. Perry

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

Laura C. Perry, Appellant,

v.

Coby G. Perry, Respondent.

Appeal From Edgefield County

Kellum W.
Allen, Family Court Judge

Unpublished Opinion
No. 2009-UP-003

Heard December
2, 2008 – Filed January 5, 2009

AFFIRMED

Christian G. Spradley, of Saluda, and Katherine Carruth
Link, of West Columbia, for Appellant.

Robert L. Widener, of Columbia, for Respondent.

Melissa L. Franklin, of Aiken, for Guardian Ad Litem.

PER CURIAM:  In this appeal from the denial of
a request to transfer child custody, appellant, Laura C. Perry (Mother),
asserts the family court erred in: (1) denying her request for sole custody of
the children; (2) denying her request to designate her as the primary custodial
parent; (3) denying her request to lift the residency restriction; (4) failing
to address the issue of child support and failing to award child support; and
(5) making factual findings contrary to the weight of the evidence.   We affirm.

1.  As to Mother's request to transfer custody, the
evidence reveals the children are doing well academically and otherwise despite
the parties' alleged inability to communicate and cooperate under the current
joint custody arrangement.  Accordingly, we find Mother has failed to meet her
burden of establishing a change in circumstances sufficient to warrant a transfer
of custody.  See Pinckney v. Hudson, 294 S.C. 332, 333, 364
S.E.2d 462, 462 (1988) ("The standard for determining whether custody
should be changed is whether there is a substantial change in circumstances
affecting the welfare of the child."); Pitt v. Olds, 333 S.C. 478,
481, 511 S.E.2d 60, 61 (1999) ("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."); Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d
325 (1971) ("[T]he change of circumstance relied on for a change of
custody must be such as would substantially affect the interest and the welfare
of the child, not merely the parties, their wishes or convenience."); Woodall
v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) ("[T]he
appellate court should be reluctant to substitute its own evaluation of the
evidence on child custody for that of the trial court.").

2.  As to whether the family court erred in denying
Mother's request for primary placement of the children, we find no error.  Although
the issue of primary placement was reserved in the divorce decree, the issue
was only raised to the court in Mother's counterclaim and was not otherwise originally
reserved in the joint custody agreement or its addendum.  Thus, a showing of a sufficient
change in circumstances is warranted for a determination on this issue.  Accordingly,
as we find Mother failed to meet her burden of establishing a change in
circumstances affecting the welfare and best interests of the children, we find
no error in the trial court's denial of primary placement at this time.  See Glanton v. Glanton, 314 S.C. 58, 60-63, 443 S.E.2d 810, 811-13 (Ct. App.
1994) (finding mother's outlook and approach to child's education since the
last court order have adversely affected the child so as to warrant a change in
primary placement).

3.  As to the residency restriction, the family court
applied the correct best interest analysis in determining that relocation was
not in the best interests of the children.  While we note that lifting the
residency restriction may enhance Mother's life, we further find support for
the family court's determination that lifting the residency restriction would
not otherwise enhance the children's lives so as to be in their best interests. 
Accordingly, we find Mother failed to meet her burden of establishing that relocation
is in the best interests of the children.  See Latimer v. Farmer,
360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004) ("In all custody cases,
including relocation cases, the controlling considerations are the child's
welfare and best interests.").

4.  With regard to child support, the family court, in
reaffirming the joint custody agreement, denied Mother's request for support.  While
an award of child support is subject to modification upon a showing of changed
circumstances and is not determinative upon a change of custody, Mother failed
to establish a sufficient change in circumstances to warrant a modification of
the existing agreement.  See Upchurch v. Upchurch, 367 S.C. 16,
624 S.E.2d 643 (2006) (finding husband's lack of concrete figures constitutes
insufficient proof of a change in the children's needs or circumstances to
modify the existing child support order).  Furthermore, we note the settlement
agreement provides that Father alone bears the additional costs of various
medical and educational expenses associated with the children.  Thus, based
upon the absence of evidence of a sufficient change of circumstances, the
family court's denial of child support was not in error.

5.  As to Mother's assertion that the family court's
findings of fact were contrary to the weight of the evidence, this issue is
without merit as the family court's findings are amply supported by the
evidence in the record.  Although Mother and Father presented different
accounts of various occurrences, we are mindful of the deference given to the
family court regarding witness testimony and credibility. See Latimer,
360 S.C. at 380, 602 S.E.2d at 34 (noting the degree of deference given to the
family court regarding witness credibility is especially critical in cases
involving the welfare and best interests of the child).  Accordingly, we find no
reversible error.

AFFIRMED.

WILLIAMS, PIEPER, and GEATHERS, JJ..