DuBose v. Sarnowski

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Oscar Franklin DuBose, Jr.,       
Respondent,

v.

Kathy Sarnowski, f/k/a Kathy D. DuBose,       
Appellant.

Appeal From Lexington County

Donna S. Strom, Family Court Judge

Unpublished Opinion No. 2004-UP-078

Heard November 4, 2003 – Filed February
12, 2004

AFFIRMED

Jean Perrin Derrick, of Lexington, for Appellant.

Carolyn B. Steigner and Daun C. Steigner, both of Lexington,
for Respondent.

PER CURIAM: In this domestic case,
Frank DuBose (“Father”) sued Kathy Sarnowski (“Mother”), seeking a change of
custody following Mother’s move with her new husband to Kentucky.  The family
court found a change of circumstances occurred and granted a change of custody
to Father.  Additionally, the family court granted Father’s request for attorney’s
fees.  Mother appeals, arguing the family court erred by:  1) finding a change
of circumstances occurred based solely upon Mother’s move from South Carolina
to Kentucky; 2) excluding evidence of the children’s custody preference; 3)
excluding evidence of Father’s past violent acts; 4) awarding Father attorney’s
fees; and 5) refusing to award Mother attorney’s fees.   We affirm. 

FACTUAL/PROCEDURAL BACKGROUND

Father and Mother were divorced in 2000, and pursuant to
an agreement later incorporated into a divorce decree, Mother was granted sole
custody of the children.  The divorce decree also provided that if Mother intended
to move out of the state with the children, she could only do so after giving
Father seventy-five days notice. 

On March 3, 2000, Mother gave Father written notice of her
intent to move out of the state with the children.  However, she did not provide
Father with information as to where she was moving.  On May 18 or 19, 2000,
Mother left South Carolina with the intention of permanently moving to Kentucky
with her new husband. 

Father filed a summons and complaint seeking custody of the
children, and following a hearing at which Mother did not appear, the family
court awarded Father temporary custody. 

At the final hearing, the family court found that a substantial
change of circumstances occurred, and the best interests of the children would
be served by awarding custody to Father.  Additionally, the court awarded Father
attorney’s fees.  Mother appeals.

STANDARD OF REVIEW

“On appeal from an order of the family court, this
court has jurisdiction to find facts in accordance with its own view of the
preponderance of the evidence.”  Hopkins v. Hopkins, 343 S.C. 301, 304,
540 S.E.2d 454, 456 (2000).  However, this broad scope of review does not require
this Court to disregard the findings of the family court.  Greene v. Greene,
351 S.C. 329, 335, 569 S.E.2d 393, 397 (Ct. App. 2002).   Rather, because this
Court lacks the opportunity for direct observation of witnesses, it should give
great deference to the family court’s findings where matters of credibility
are involved, especially in cases involving the welfare and best interests of
children.  Kisling v. Allison, 343 S.C. 674, 677-78, 541 S.E.2d 273,
275 (Ct. App. 2001). 

LAW/ANALYSIS

I.     Change of Circumstances

Mother argues the family court erred
by ruling her relocation to Kentucky, standing alone, constituted a change of
circumstances sufficient to alter the custody award. 

Appellate courts should interpret judgments by
the trial courts as they would any other instrument.  Eddins v. Eddins,
304 S.C. 133, 135-36, 403 S.E.2d 164, 166 (Ct. App. 1991); see also State
v. Evans, 354 S.C. 579, 584, 582 S.E.2d 407, 410 (2003) (holding an appellate
court must view the circuit court’s statements as a whole to determine its reasoning). 

The family court’s order states in pertinent part:

I find that the move to Kentucky is not beneficial to the
children; that their lives would not be enhanced by the move; that their relationship
with their father was very good prior to the move and would suffer; and that
the mother’s reasons for moving were very poor . . . . This Court finds that
the mother’s move to Kentucky and subsequent behavior constitutes
a substantial change in circumstances which necessitates a change in permanent
custody to the father.

(emphasis added).  Additionally, the family court’s
numerous findings of fact and conclusions of law support the conclusion the
decision is based on many factors, only one of which was Mother’s move to Kentucky. 
Thus, Mother’s claim that the family court found a change of circumstances and
altered the custody award based solely on her move to Kentucky is without merit.

Furthermore, based on our own review of the record
and considering the totality of the circumstances, we hold the family court
did not err by altering the custody award and awarding custody to Father.

In South Carolina, there is a presumption against
removing a child from the state.  McAlister v. Patterson, 278 S.C. 481,
483, 299 S.E.2d 322, 323 (1982).  However, the presumption may be rebutted by
a showing the move will benefit the child. See id. at 483, 299
S.E.2d at 323 (“In situations where removal will benefit the child, removal
has been allowed.”). Thus, the question of whether relocation will be allowed
requires a determination of whether relocation is in the best interest of the
children.  Rice v. Rice, 335 S.C. 449, 454, 517 S.E.2d 220, 222 (Ct.
App. 1999).  In child custody cases, a court must examine the totality of the
circumstances to determine the best interests of the child.  Wheeler v. Gill,
307 S.C. 94, 99, 413 S.E.2d 860, 863 (Ct. App. 1992).

In reaching a determination as to custody, the
family court should consider how the custody decision will impact all areas
of the child’s life, including physical, psychological, spiritual, educational,
familial, emotional, and recreational aspects.  Pountain v. Pountain,
332 S.C. 130, 136, 503 S.E.2d 757, 760 (Ct. App. 1998). Additionally, the court
must assess each party’s character, fitness, and attitude as they affect the
child.  Id. at 136, 503 S.E.2d at 760. 

Father resides in South Carolina, with his relatives living
nearby, in a town where the children have gone to school their whole lives. 
The record indicates Father works full-time, and thus, when the children are
in Father’s custody, his mother watches the children and cooks for them on a
regular basis.  Notwithstanding that, the Guardian ad Litem (“GAL”) testified
it was in the children’s best interest to stay in South Carolina where they
have gone to school and have relatives nearby. 

Additionally, the GAL testified the children are bonded with
their Father.  Therefore, allowing Mother to retain custody in Kentucky would
have a negative impact on Father’s relationship with the children. 

Evidence within the record indicates during Mother and Father’s
marriage, Father had physical confrontations with both Mother and Randall, Mother’s
son by a previous marriage.  However, the evidence also indicates the confrontations
with Mother have not occurred since the end of their marriage, and the confrontations
with Randall have not occurred since 1991. 

On Mother’s side, the record indicates during the summer
of 2000, Mother, her new husband, several pets, and the children lived in a
hotel room in Kentucky.  Subsequently, Mother, her new husband, and the children
moved into a farmhouse. 

The record indicates Mother is unemployed, and although she
claims to have a disability, she did not provide evidence in the record to support
her claim. 

While the children are with Mother, Mother primarily cares
for the children’s needs.  Additionally, testimony within the record indicates
Mother is more patient and understanding of the children, communicates better
with them, and is more involved in their lives than Father. 

However, we are concerned with Mother’s ability to provide
a safe, stable environment for the children.  Initially, we are most concerned
with evidence indicating Mother’s new husband is violent.  The evidence in this
regard indicates that shortly after moving to Kentucky, Mother’s new husband
attacked her with a hammer.  Mother called the police, and Mother’s new husband
was charged with criminal domestic violence. 

Additionally, the record indicates patterns of instability. 
First, this is Mother’s third marriage, and Mother only met her new husband
a short period of time before they were married.  Second, Mother was held in
contempt of court for damaging Father’s property.  Third, the day Mother left
with the children to Kentucky, it was Father’s regularly scheduled visitation
period.  Although Mother sent a letter to Father indicating she was moving,
Mother, in violation of the divorce decree, failed to give proper notice to
Father and failed to tell Father where the children would be. 

Subsequently, when the family court granted temporary custody
to Father, Mother did not voluntarily comply with the order.  Rather, Father
had to travel to Kentucky to enforce the order.  Furthermore, when Father took
the children, Mother cried, screamed, and threatened Father in front of the
children.  Mother admitted that after this confrontation, she encouraged the
children to perform poorly in school so that her chances of retaining permanent
custody would improve.  The children did in fact perform poorly in school, requiring
one of them to take summer school classes. 

Considering the totality of the circumstances, we conclude
Father is more capable of providing a stable environment for the children. 
A fair reading of the record indicates while Father’s mother tends to many of
the children’s basic needs, Father does involve himself in his children’s lives. 
Furthermore, Father has a strong familial support system.  We are concerned
with evidence indicating a history of violent arguments with Mother and Randall. 
The family court noted this history in its order, but ultimately concluded Father
was still the best parent to have custody.  In evaluating the significance of
this prior history, the family court contrasted, as do we, the evidence within
the record indicating Mother recently accused her current husband of assaulting
her with a hammer.  Additionally, Mother has demonstrated behavior that indicates
she prioritizes her own interests over the best interests of her children. 

We therefore agree with the family court’s conclusion that
the best interests of the children are served by granting Father permanent custody.

II.      Expert
Witness

Mother argues the family court erred by excluding
testimony of a psychologist indicating the children would prefer to live with
Mother.  Mother contends the exclusion of this evidence is in contravention
of Rule 703, South Carolina Rules of Evidence.
[1]  

It is well settled the admission and rejection of testimony
are matters largely within the trial court’s discretion, the exercise of which,
absent abuse, will not be disturbed on appeal. Pike v. South Carolina Dep’t
of Transp., 343 S.C. 224, 234, 540 S.E.2d 87, 92 (2000).  To warrant reversal,
the appellant “must show both the error of the ruling and resulting prejudice.”
Recco Tape and Label Co. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838,
840 (1994); Potomac Leasing Co. v. Bone, 294 S.C. 494, 497, 366 S.E.2d
26, 28 (Ct. App. 1988) (“Before the Court of Appeals will reverse a judgment
for an alleged error in the exclusion of evidence, the appellant must show prejudice.”).

At the beginning of Mother’s direct examination of
the psychologist, Mother moved to admit the psychologist’s written evaluation. 
The family court admitted the evaluation into evidence without objection.  The
evaluation generally indicated the children preferred living with their Mother. 

Thereafter, Mother asked the psychologist with whom
the children had indicated they preferred to live.  The psychologist indicated
the children stated they preferred to live with Mother.  Father objected and
moved to strike, and the family court excluded the testimony. 

Subsequently, the GAL testified, without objection,
that the children told him, at least at some specific points during the custody
litigation, they would prefer to live with Mother.  

Assuming, without deciding, the family court erred
by excluding the testimony of the psychologist, the testimony’s only value was
to indicate they had expressed a preference to live with Mother, evidence that
was introduced both through the psychologist’s evaluation and the testimony
of the GAL.   Thus, the testimony was cumulative, and its exclusion, if error,
is not reversible error.  See Weir v. Citicorp Nat. Servs., Inc.,
312 S.C. 511, 517, 435 S.E.2d 864, 868 (1993) (holding exclusion of cumulative
evidence is not prejudicial error). [2]

III.    Father’s
Acts of Violence

Mother argues the family court erred by excluding
testimony of her older son, Randall, indicating Father was violent.  We hold
the family court did consider the evidence, and thus, Mother’s assignment of
error is without merit. [3]

Appellate courts should interpret judgments by
the trial courts as they would any other instrument.  Eddins, 304 S.C.
at 135-36, 403 S.E.2d at 166; see also Evans, 354 S.C. at 584,
582 S.E.2d at 410 (holding an appellate court must view the circuit court’s
statements as a whole to determine its reasoning).  Thus, the primary objective
is to ascertain and give effect to the intention of the court.  Eddins,
304 S.C. at 135, 403 S.E.2d at 166.  However, “[a]n order should be construed
within the context of the proceeding in which it is rendered.”  Dibble v.
Sumter Ice and Fuel Co., 283 S.C. 278, 282, 322 S.E.2d 674, 677 (Ct. App.
1984).

During Mother’s direct examination of Randall, Mother attempted
to introduce testimony indicating in 1991, prior to the divorce decree and original
custody award, Father displayed violent tendencies both toward her and Randall. 
Father objected, arguing the testimony was not relevant because the alleged
incidents occurred prior to the divorce decree. 

The family court stated, “If you want to proffer you can. 
But I think I’m supposed to--- I think I’m supposed to hear what’s happened
since that divorce decree, and I can take into account whatever the court record
shows.”  Mother then proffered Randall’s testimony. 

During the proffer, Randall testified that he lived with
Father from the summer of 1987 until December of 1991.  He testified that during
that time Father was violent.  Specifically, he recounted one confrontation
where Father allegedly threw him to the ground and dented the floor vent with
his head.  He further testified that one month following this confrontation,
Mother sent him to live with his father in Germany. 

Subsequently, Mother ended her proffer and began eliciting
testimony from Randall for the record.  Thereafter, Father asked if the testimony
was part of the proffer or was testimony for the record.  The court replied
that the testimony was for the record.  Furthermore, the court indicated it
had not yet ruled on whether to admit the previously proffered testimony.  

Reading the transcript of the hearing, it does not indicate
if the family court ever ruled, during the hearing, on whether to admit Randall’s
testimony.  However, in the family court’s order, the court states in its findings
of fact that:

Her son himself testified that, when he was 15, he
had had a confrontation with . . . [Father] which has resulted in the police
being called and . . . [Father] leaving the house overnight.  The incident happened
sometime in 1992.  A few months after that, . . . [Mother’s] older children
were sent to live with their father in Germany.

(emphasis added). 

Given the family court’s clear, unambiguous language
in this ruling, the only logical inference is that the family court did consider
Randall’s testimony.  Thus, Mother’s contention to the contrary is without merit.

IV.    Attorney’s
Fees

Mother argues the family court erred by awarding
Father attorney’s fees and not awarding her attorney’s fees.   We disagree.

An award of attorney’s fees will not be overturned
absent an abuse of discretion.  Stevenson v. Stevenson, 295 S.C. 412,
415, 368 S.E.2d 901, 903 (1988).  In deciding whether to award attorney’s fees,
the family court should consider:  1) the parties’ ability to pay their own
fees; 2) the beneficial results obtained by counsel; 3) the respective financial
conditions of the parties; and 4) the effect of the fee on each party’s standard
of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816
(1992).   When determining the amount of fees to award, the family court should
consider:  1) the nature, extent, and difficulty of the services rendered; 2)
the time necessarily devoted to the case; 3) counsel’s professional standing;
4) the contingency of compensation; 5) the beneficial results obtained; and
6) the customary legal fees for similar services.  Glasscock v. Glasscock,
304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). 

Initially, Mother contends the family court erred
by awarding Father attorney’s fees because the court should not have found a
change of circumstances occurred.  Because we hold the family court did not
err in granting relief based upon a substantial change in circumstances, this
argument is without merit.

Next, Mother contends the family court erred because
the order “fails to make any of the customary findings required in connection
with an award of attorney’s fees, even though it cites Atkinson v. Atkinson,
279 S.C. 355, 309 S.E.2d 14 (Ct. App. 1983), which defines and requires such
findings.”

The family court’s eighteen-page order is replete with findings
involving the respective positions of the parties.  In addition, the court’s
order noted Father’s counsel’s professional standing.  Furthermore, Father’s
counsel provided an affidavit indicating the time devoted to the case.  Moreover,
it is undisputed that Father obtained a beneficial result based upon the change
in custody. 

Faced with such a detailed order containing extensive findings
of fact, we conclude Mother’s argument, merely claiming the family court failed
to make customary findings of fact, is insufficient to preserve this assignment
of error for appellate review.  See Solomon v. City Realty Co.,
262 S.C. 198, 201, 203 S.E.2d 435, 435 (1974) (holding conclusory arguments
are deemed abandoned); Fields v. Melrose Ltd. P’ship, 312 S.C. 102, 106,
439 S.E.2d 283, 285 (Ct. App. 1993) (holding an issue is deemed abandoned and
thus not presented for appellate review if argued in a short, conclusory statement).
 Consequently, Mother’s argument is without merit.

Lastly, Mother contends the family court erred
by not awarding her attorney’s fees.  She contends that the financial disparity
between the two parties is so great that not awarding her attorney’s fees is
an abuse of discretion. 

The evidence within Father’s financial declaration
indicates he has a net monthly income of $2,225.85 and monthly expenses totaling
$1,855.20.  Mother’s financial declaration states she has no monthly income
and expenses totaling $1,718.00 per month.  The Mother’s testimony indicates
she lacks monthly income because she has a disability. 

However, the family court did not believe Mother’s
testimony.  Rather, because Mother failed to produce any evidence outside of
her own testimony indicating she had a disability, the family court imputed
income to her – a determination Mother has not appealed.  Furthermore, Mother
did not win on the merits.  Thus, we hold the family court did not abuse its
discretion by denying Mother’s motion for attorney’s fees.

CONCLUSION

Based on the foregoing, the decision of the family court
is

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concurring.

[1] Mother also contends the exclusion contravened Rule 803(3), South
Carolina Rules of Evidence.  However, Mother did not argue Rule 803(3), South
Carolina Rules of Evidence, to the family court when attempting to admit the
psychologist’s testimony.  Therefore, any argument premised upon that rule
is not preserved for appellate review.  See Wilder Corp. v. Wilke,
330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“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.”).

[2] Mother additionally argues the family court erred by excluding other
statements made by the children to the psychologist.  However, Mother did
not proffer the psychologist’s testimony.  Thus, any assignment of error to
the exclusion of this testimony is not preserved for appellate review.  See
Greenville Mem’l Auditorium v. Martin, 301 S.C. 242, 243, 391 S.E.2d
546, 547 (1990) (“An alleged erroneous exclusion of evidence is not a basis
for establishing prejudice on appeal in the absence of an adequate proffer
of evidence in the court below.”). 

[3] Mother
also argues the family court erred by excluding portions of both Father’s
testimony during cross-examination and her own testimony on direct examination. 
However, Father’s testimony was not proffered. Thus, any assignment of error
to the exclusion of this testimony is not preserved for appellate review.    
See Greenville Mem’l Auditorium, 301 S.C. at 243, 391 S.E.2d
at 547 (holding an alleged exclusion of evidence is not a basis for establishing
prejudice on appeal in the absence of a proffer of the evidence in the court
below).  Furthermore, the substance of Mother’s testimony was admitted though
the psychologist’s report discussed above.  Thus, the testimony was cumulative,
and its exclusion, if error, is not reversible error.  See Weir,
312 S.C. at 517, 435 S.E.2d at 860 (holding exclusion of cumulative evidence
is not prejudicial error).