Clayton v. Clayton

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

Roy James Clayton, II, Appellant,

v.

Melissa Lee Clayton, Respondent.

Appellate Case No. 2012-209766

Appeal From Spartanburg County
Joseph W. McGowan, III, Family Court Judge

Unpublished Opinion No. 2013-UP-369
Heard September 9, 2013 – Filed October 9, 2013

AFFIRMED

S. Paul Aaron, of S. Paul Aaron, P.A., of Clemson, for
Appellant.

Ruth L. Cate, of The Cate Law Firm, P.A., of
Spartanburg, and Andrea Moore, of Children First Legal
Services, LLC, of Fairforest, for Respondent.

Susan A. Fretwell, of Fretwell Law Firm, of Spartanburg,
Guardian ad Litem.
PER CURIAM: Roy James Clayton, II, appeals a family court order denying his
request to modify the visitation granted to Respondent Melissa Lee Clayton in a
prior order and ordering him to pay Respondent's attorney's fees and the fees of the
Guardian ad litem in their entirety. We affirm pursuant to Rule 220(b), SCACR,
and the following authorities:

1. As to the family court's refusal to order a permanent modification of the
visitation granted to Respondent in a prior custody order: Wilburn v. Wilburn, 403
S.C. 375, 380, 743 S.E.2d 734, 738 (2013) (acknowledging the appellate court
"exercises de novo review over appeals in family court cases," but further stating
"the decision of the family court will be upheld unless the Court finds that a
preponderance of the evidence weighs against the family court's decision");
Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004) (recognizing a
change in custody analysis includes consideration of the child's best interest, but
adhering to the principle that the party seeking to change custody must also show a
change in circumstances occurring after the entry of the prior custody order); Pitt
v. Olds, 333 S.C. 478, 481, 511 S.E.2d 60, 61 (1999) ("In order for a court to
modify an existing custody decree, there must be a showing of changed
circumstances occurring subsequent to the entry of the decree.").

2. As to whether the family court erred in ordering Appellant to pay both
Respondent's attorney's fees and the Guardian ad litem's fees in full: Chisholm v.
Chisholm, 396 S.C. 507, 510, 722 S.E.2d 222, 223 (2012) (stating that although an
appellate court exercises de novo review of attorney's fees awards in domestic
relations cases, the appellant must show the preponderance of the evidence is
against the family court's findings of fact); Miles v. Miles, 393 S.C. 111, 120, 711
S.E.2d 880, 885 (2011) (noting the party seeking modification of a child support
obligation bears the burden to show by a preponderance of the evidence that an
unforeseen change has occurred and that the change is substantial); Simpson v.
Simpson, 377 S.C. 527, 538-40, 660 S.E.2d 278, 284-85 (Ct. App. 2008) (affirming
an award of attorney's fees and costs that was approximately eighty-three percent
of the appellant's potential annual income); Hawkins v. Hawkins, 403 S.C. 228,
242, 742 S.E.2d 677, 684 (Ct. App. 2013) (indicating the family court should
consider the supporting spouse's earning potential when that spouse seeks to reduce
a support obligation based on diminished income). We further note that although
we do not approve of the grant of attorney's fees in lieu of child support,
Appellant's counsel stated to this court that he was not appealing the family court's
designation of attorney's fees as an incident of child support. Based on this
assurance, we decline to address the propriety of the family court's fashioning of
awards of attorney's fees and Guardian ad litem's fees as support obligations for the
purpose of avoiding their discharge in a bankruptcy proceeding. See Lucas v. Rawl
Family Ltd. P'ship, 359 S.C. 505, 511, 598 S.E.2d 712, 715 (2004) (holding this
court erred in addressing an unappealed ruling of the trial court).

AFFIRMED.

SHORT, WILLIAMS, and THOMAS, JJ., concur.