Byrd v. Hawkins

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

Austin M. Byrd, Appellant,

v.

Courtney Hawkins, Respondent.

Appellate Case No. 2014-001172

Appeal From Newberry County
Joseph C. Smithdeal, Family Court Judge

Unpublished Opinion No. 2016-UP-152
Submitted December 1, 2015 – Filed March 30, 2016

AFFIRMED

Mindy Westbrook Zimmerman and Benjamin L. Shealy,
of Zimmerman & Shealy, LLC, of Newberry, for
Appellant.

Scarlet Bell Moore, of Greenville, for Respondent.

PER CURIAM: Austin M. Byrd (Father) appeals the family court's order
granting custody of his minor child (Child) to Courtney Hawkins (Mother) and
giving Father standard visitation. Father argues the family court abused its
discretion because its findings included facts that were not presented at trial and it
relied on evidence that was neither testified to nor entered into evidence. We
affirm.1

1. Father argues the family court erred when it found (1) he and Mother ended
their relationship approximately one year after Child's birth; (2) the relationship
between Mother and Father was rocky and communication broke down after their
relationship ended; (3) Child was disrespectful when he returned from visiting
Father; (4) Father admitted he had a casual relationship with his girlfriend, Kelly;
and (5) Kelly refused to take a drug test. Father failed to challenge these findings
in his motion to reconsider; thus, these issues are unpreserved. See Washington v.
Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992) (holding when an
appellant does not raise an issue at trial or through a Rule 59(e), SCRCP, motion,
the issue is not preserved for appellate review); see also Doe v. Doe, 370 S.C. 206,
212, 634 S.E.2d 51, 55 (Ct. App. 2006) (holding the wife's argument regarding the
family court's identification and valuation of marital property was not preserved for
appellate review because she failed to raise the alleged error to the family court in
her Rule 59(e) motion).

2. Father argues the family court erred when it (1) found Child resided primarily
with Mother since May 2013; (2) found Father swore he would never pay child
support; (3) found Father used his obligation to support Child as a club in an
attempt to spite Mother and gain favor with Child; (4) found Father violated the
parties' oral agreement in October 2012; (5) found Father would drag out the
custody action as long as possible; (6) found Father's relationship with his parents
was strained at best; (7) focused "heavily" on an explosive fight between Mother
and Father; (8) found Mother to have a gentle demeanor; (9) placed emphasis on
Mother's credibility; (10) found Father was known to belittle and intimidate
Mother; and (11) found Father was less willing to compromise with Mother
regarding travel and visitation. Father has failed to meet his burden of proving the
family court erred in making these factual findings. See Lewis v. Lewis, 392 S.C.
381, 392, 709 S.E.2d 650, 655 (2011) (noting the appellant bears the burden of
convincing the appellate court that the family court erred in its factual findings); id.
at 390, 709 S.E.2d at 654 ("The highly fact-intensive nature of family court matters
lends itself to a respect for the factual findings of our able and experienced family
court judges who are in a superior position to assess the demeanor and credibility
of witnesses."); Wilson v. Wilson, 285 S.C. 481, 483, 330 S.E.2d 303, 304 (1985)
("Although our scope of review allows us to find the facts in accordance with our
view of the preponderance of the evidence, we give broad discretion to the family

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
court judge who has observed the witnesses and is in a better position to judge their
demeanor and veracity.").

3. Father argues the family court erred when it found Father had only four
overnight visits per month with Child since the December 2012 temporary hearing
when he actually had eight overnight visits. We agree this finding was erroneous;
however, we find this error harmless in light of the evidence presented during the
hearing that demonstrates Mother has been Child's primary caretaker since
December 2012 and the custody and visitation arrangement ordered by the family
court is in Child's best interest. See Lewis v. Lewis, 400 S.C. 354, 371, 734 S.E.2d
322, 331 (Ct. App. 2012) (finding any error in the family court's determination
concerning the counselor's knowledge of the husband's behavior was harmless
because the finding was not "any more damaging to [the h]usband than the other
evidence presented"); id. ("[W]hatever doesn't make any difference, doesn't
matter." (quoting McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App.
1987))); see also Brown v. Brown, 362 S.C. 85, 90, 606 S.E.2d 785, 788 (Ct. App.
2004) ("The paramount and controlling factor in every custody dispute is the best
interests of the children."); id. at 91, 606 S.E.2d at 788 ("Although there is no rule
of law requiring custody be awarded to the primary caretaker, there is an
assumption that custody will be awarded to the primary caretaker." (quoting Patel
v. Patel, 359 S.C. 515, 527, 599 S.E.2d 114, 120 (2004))).

AFFIRMED.

HUFF, A.C.J., and WILLIAMS and THOMAS, JJ., concur.