Powell v. Powell

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

Dustin G. Powell, Respondent,

v.

Stacie N. Powell n/k/a Stacie N. Lovett, Appellant.

Appellate Case No. 2019-000850

Appeal From Florence County
Timothy H. Pogue, Family Court Judge

Unpublished Opinion No. 2021-UP-448
Heard October 12, 2021 – Filed December 15, 2021

REMANDED

Mary Amanda Harrelson Shuler, of Whetstone Perkins &
Fulda, LLC, of Kingstree, for Appellant.

Marian Dawn Nettles, of Nettles Turbeville & Reddeck,
of Lake City, and Everett Guy Ballenger, of Barth,
Ballenger & Lewis, LLP, of Florence, for Respondent.

PER CURIAM: In this change of custody action, Appellant Stacie N. Powell n/k/a
Stacie N. Lovett (Mother) seeks review of the family court's order awarding
Respondent Dustin G. Powell (Father) custody of their two minor children. Mother
argues the family court erred by finding a substantial change in circumstances
affecting the children's welfare because there was no negative change in the
children's performance in school and Father did not increase the time he spent with
the children despite a change in his work schedule allowing him more flexibility.
Mother also argues the family court erred by concluding that awarding Father sole
custody was in the children's best interests because the court's underlying findings
were not supported by the evidence and the court gave undue weight to the report of
the guardian ad litem (GAL). We remand for a de novo hearing.

As in all matters of child custody, a change in custody
analysis inevitably asks whether the transfer in custody is
in the child's best interests. In order for a court to grant a
change in custody, there must be a showing of changed
circumstances occurring subsequent to the entry of the
divorce decree. "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 children would be served by
the change."

Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004) (citations omitted)
(quoting Stutz v. Funderburk, 272 S.C. 273, 276, 252 S.E.2d 32, 34 (1979)).

In other words,

[t]he change of circumstances relied on for a change of
custody must be such as would substantially affect the
interest and welfare of the child. Because the best interest
of the child is the overriding concern in all child custody
matters, when a non-custodial parent seeks a change in
custody, the non-custodial parent must establish the
following: (1) there has been a substantial change in
circumstances affecting the welfare of the child and (2) a
change in custody is in the overall best interests of the
child.

Latimer, 360 S.C. at 381, 602 S.E.2d at 35; see also S.C. Code Ann. § 63-15-230(A)
(Supp. 2020) ("The court shall make the final custody determination in the best
interest of the child based upon the evidence presented."); Burgess v. Arnold, 422
S.C. 162, 167–68, 810 S.E.2d 255, 258 (Ct. App. 2018) ("In custody decisions, the
best interest of the child is the paramount consideration." (quoting Gandy v. Gandy,
297 S.C. 411, 414, 377 S.E.2d 312, 313 (1989))); id. at 168, 810 S.E.2d at 258
("Custody is based on a determination of the character, fitness, attitude[,] and
inclinations on the part of each parent." (quoting Gandy, 297 S.C. at 414, 377 S.E.2d
at 313–14)).

Here, the family court's order as a whole characterized both parents as suitable
caretakers. Nevertheless, the family court viewed the parties' communication
problems as a reason to terminate joint custody and award sole custody to one of the
parties. The family court also considered the girls' educational challenges as a
substantial change in circumstances requiring an award of sole custody to Father:

After reviewing all of the factors above, it is apparent that
these two individuals cannot co-parent and therefore joint
custody is not possible. This [c]ourt has great concern
about the quality of education these children are receiving.
[Daughter 1] has made marginal improvements in her
grades, but only after this litigation was filed. [Daughter
2] has regressed in her educational achievements[,] and
simply changing to a private school is not going to help.
As the guardian has so amply pointed out "[Daughter 2]
can't read[,]" and evidently she is not getting the proper
services to help her with this, either at school or home.
The guardian testified that currently these children are
educationally and emotionally at risk. They are wonderful
children with an "amazing future[,]" but their problems
stem from their parents not getting along and failing to
communicate with each other about what is in their
children's best interest.

Having considered all of the above, I find that [Father]
has met his burden of proof by a preponderance of the
evidence that there has been a substantial change in
circumstances sufficient to warrant a change in the
parties' custodial arrangement. Since joint custody of the
minor children is no longer viable, I am granting the father
sole custody of the minor children . . . .

(emphases added).
The record supports the family court's finding of poor communication
between the parties. For example, Father initiated private counseling for the girls
without consulting Mother. Further, at the end of the 2017-2018 school year, Mother
made the decision to promote Daughter 2 to the second grade, despite concern
expressed by Daughter 2's first grade teacher and without consulting Father.
Additionally, Mother had Daughter 2 evaluated for ADHD and administered ADHD
medication to Daughter 2 without consulting Father. The most troubling example is
the behavior of Father and his family in repeatedly contacting the Department of
Social Services with unfounded abuse allegations. Father admitted that he and
Mother rarely shared information about the girls with each other.

As to the girls' education, Father testified that the flexibility of his recently
changed work schedule would allow him to spend more time helping the girls with
school work during the weekdays. He expressed concern over the girls' academic
progress, explaining that they "continue to fail, they're not getting the help they
need." Father also testified he could place the girls in a public school that is superior
to the public school they were attending while living with Mother.

Mother maintains that the girls were already struggling in school at the time
of the parties' divorce and, thus, there was no change in circumstances affecting their
welfare by the time Father filed this action. Father responds that Daughter 2's grades
actually declined from the first quarter to the second quarter of the 2017-2018 school
year and declined even further by the time interim reports for the third quarter were
issued two days after Father filed his complaint. Although the record supports this
assertion, it also shows that Daughter 2's reading scores began to greatly improve
approximately two weeks before the November 28, 2018 final hearing. After
receiving a failing score on a reading test on November 15, Daughter 2 earned a
numerical score of 85 for her daily work on November 16 and two separate scores
of 100 for her daily work on November 26. Further, Daughter 1 was on the A-B
Honor Roll at the end of the first quarter of the 2018-2019 school year.

We are concerned that both Father and the family court overlooked the most
recent grades of the girls just prior to the final hearing. In light of this oversight and
the fact that three years have elapsed since the final hearing, the girls' best interests
will be served by remanding this case for a de novo hearing. See Georgetown Cnty.
Dep't of Soc. Servs. v. Phipps, 278 S.C. 64, 65, 292 S.E.2d 184, 185 (1982) ("We are
concerned that the best interests of the children cannot be determined because
considerable time has elapsed since custody was granted and the record has become
stale. Therefore, we remand to the Family Court for a trial de novo . . . ."); Dorn v.
Criddle, 306 S.C. 189, 192, 410 S.E.2d 590, 592 (Ct. App. 1991) (remanding for a
trial de novo because more than three years had elapsed since the family court issued
the appealed order); Cook v. Cook, 280 S.C. 91, 93, 311 S.E.2d 90, 91 (Ct. App.
1984) ("We do not believe the child's best interest can be determined due to the
considerable amount of time which has elapsed since custody was granted to the
mother. The record before us has become 'stale.'").

The family court should not only examine the girls' academic performance
from November 16, 2018 up to the time of the new hearing but also evaluate their
adjustment to living with Father and any other factors affecting their best interests.

REMANDED.

HUFF, THOMAS, and GEATHERS, JJ., concur.