Petition for Writ of Certiorari — Donald Clinton Crabtree, Petitioner v. Christine Crabtree

Supreme Court briefDec 2, 2021

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APPENDIX A

IN THE SUPREME COURT OF SOUTH

CAROLINA

NO. 2021-000088

MS. CHRISTINE CRABTREE

MR. DONALD CRABTREE

DATE OF RULING:

TRIAL JUDGES:

07/06/2021

GEORGE M. MCFADDIN,

JR., FAMILY COURT

JUDGE

MONET S. PINCUS,

FAMILY COURT JUDGE

COURT FROM WHICH

APPEALED:

SUMTER COUNTY

ATTRONEYS FOR

MR DONALD CRABTREE

APPELLANT:

PRO SE

ATTORNEYS FOR

APPELLEE:

MARIAN DAWN

NETTLES

MICHAEL W. SELF

NATURE OF THE

CASE:

CIVIL

DISPOSITION:

DENIED

MOTION FOR

REHEARING FILED:

ORDER

Based on the vote of the Court, the petition for a writ

of certiorari is denied.

FOR THE COURT

BY CLERK

APPENDIX B

IN THE APPELLATE COURT OF SOUTH

CAROLINA

NO. 2018-000269

MS. CHRISTINE CRABTREE

MR. DONALD CRABTREE

DATE OF RULING:

TRIAL JUDGES:

11/18/2020

GEORGE M. MCFADDIN,

JR., FAMILY COURT

JUDGE

MONET S. PINCUS,

FAMILY COURT JUDGE

COURT FROM WHICH

APPEALED:

SUMTER COUNTY

ATTRONEYS FOR

APPELLANT:

MR DONALD CRABTREE

PRO SE

ATTORNEYS FOR

APPELLEE:

MARIAN DAWN

NETTLES

MICHAEL W. SELF

NATURE OF THE

CASE:

CIVIL

DISPOSITION:

AFFIRMED

MOTION FOR

REHEARING FILED:

12/08/2020

;

MANDATE ISSUED:

12/21/2020

PER CURIAM: Donald Crabtree (Husband) appeals

two orders from the family court: (1) the order

denying his motion to reconsider the original divorce

decree and granting Christine Crabtree's (Wife's)

motion to reconsider the original divorce decree, and

(2) the amended divorce decree. On appeal, Husband

argues the family court erred by granting Wife

temporary possession of the family home; acting in

"contempt of justice" by ignoring law and evidence

and lacking integrity in applying the law in this case;

acting against the preservation of marriage; showing

gender prejudice; incorrectly imputing his income;

failing to properly assess marital fault and consider

whether the award of alimony should be reversed

based on fault grounds; and "subverting] freedom of

religion." He further asserts the evidence in this case

showed desertion or constructive desertion by Wife;

libel and slander by Wife; cruelty by Wife; he is the

"most well[-]adjusted mature" and "reasonable

parent" for custody purposes; and the guardian ad

litem was prejudiced against him and colluded with

the family court. Husband further lists several

religious questions in his statement of the issues on

appeal, including Whether religious authority has a

place in family life and if extorting [sic (exhorting)]

a person's religion is "inherently abusive"; whether it

is better to claim a religion and not adhere to its

teachings; and whether it is better to be at fault or tell

someone they are at fault. We affirm.

I. FACTS

)

The parties were married in 2000 in the state of

Washington and have four minor children. Due to the

Husband’s schooling and position in the United States

Air Force (USAF), the parties moved several times

until the Husband was stationed in South Carolina in

2012. According to the record, Husband left the

USAF in 2014, accepting and incentive package of

over $100,000. Husband stated he wished to use this

money to start his own business, but Wife, who he

claimed initially supported him leaving the USAF

and starting his own business, later asked Husband

to “take the safer route” and find a new job instead.

This disagreement caused problems in the marriage1;

in particular, Husband asserted Wife no longer had

sexual relations with him, and he began sleeping in

the guest room. Wife asserted Husband yelled at her,

cursed at her, called her names in front of the

children, belittled her opinions, told her to submit and

obey him, and generally used their Christian religion

as a weapon against her.

Husband sent Wife several emails regarding her

actions and the religious consequences, telling Wife

“because you are in rebellion you will not find comfort

in the [Ljord, for he is the one you are rejecting”; “You

are not justified, you are incapable of judging what is

fair. . . . The spirit of cowardice has no place in my

household”; “You are afraid because you are in

rebellion against the Lord, the only lasting peace you

will find is in obedience”; and “You are simply

following in the curse of the woman, trying to

1 Parties also had issues earlier in the marriage, including

physical abuse, and at one point, they separated for fifteen

months.

unbalance my leadership. Coveting my authority and

attacking me. There will be no peace for you in this.”

Additionally, Husband had an altercation with the

Wife’s father, sending Wife’s father an email asking

him to leave the parties’ marital home and calling the

police to “evict” him from the marital home, which the

police refused to do as the Wife’s father was the Wife’s

guest. Afterwards, Husband send Wife’s parents and

Wife another email regarding the incident, stating he

was “under [God’s] authority” and wishing[sic

warning] “dreadful anxiety” to those who claimed to

be Christian but “rejected [God’s] direction in this

situation.”

In 2015, Husband began to ask Wife to move with him

back to Washington, but Wife refused. Wife left

Husband on November 9, 2015. Wife filed an action

for sperate support and maintenance on November

10, 2015, asking for the right to live sperate and apart

from Husband.

Husband filed an answer and

counterclaim, request sperate support and

maintenance and the right to live separate and apart

from Wife. After a hearing, the family court issued a

temporary order that granted Wife sole custody of the

Children and temporary possession of the marital

home; granted Husband restricted and supervised

visitation with the Children; and ordered Husband to

pay child support, the mortgage on the marital home,

and Children’s private school tuition.2 Subsequently,

Wife filed a rule to show cause against the Husband

2 Husband filed a motion to reconsider this temporary order,

which the family court denied. Husband then filed a motion for

supersedeas, but this court denied the motion and stayed the

appeal of the temporary order pending a final order.

/•"X

)

in contempt for failing to comply with the temporary

order by not paying child support, Children’s private

school tuition, and other support to the Wife.

Husband appealed the civil contempt order, and this

court affirmed. Crabtree v. Crabtree, Op. No. 2017UP-461 (S.C. Ct. App. Filed December 13, 2017).

Wife later filed a second rule to show cause against

the Husband because he had failed to pay the

mortgage on the marital home, and after a hearing,

the family court found Husband in contempt.

Thereafter, Wife filed an amended complaint asking

for a divorce on the ground of one year’s continuous

separation. Husband amended his answer to also

request a divorce but on the ground of abandonment

or desertion. After a trial, the family court issued a

final divorce decree, granting Wife a divorce based on

one year’s continuous separation, stating its belief

that the leading cause of the divorce was the

Husband’s use of the Christian faith against the Wife;

finding no fault ground applied to the divorce;

imputing an annual income of $80,000 to Husband;

granting Wife custody of the Children and stating

Wife may relocate to Washington with Children;

ordering the parties to each pay half of the guardian

ad litem’s fees and costs; ordering Husband to pay all

of Wife’s attorney’s fees and costs; ordering Husband

to pay Wife $1,470 in child support and $1,300 in

alimony per month; and dividing the parties’ marital

property 50/50.

Both parties filed a motion for

reconsideration. The family court denied Husband’s

motion for reconsideration but granted Wife’s motion

and it filed and amended final divorce decree

increasing Wife’s alimony to $1,600 per month, which

resulted in a decrease of Husbands monthly child

support obligation from $1,470 to $1,404 per month

pursuant to the child support guidelines. Husband

appealed to the South Carolina Supreme Court,

arguing his case raised the novel issue of “faith based

abuse,” and the supreme court transferred the case to

this court. Crabtree v. Crabtree, S.C. Sup. Ct. Order

dated February 22, 2018.

II. STANDARD OF REVIEW

Generally, on appeal from the family court, this court

reviews factual and legal issues de novo. Simmons v.

Simmons, 392 S.C. 412, 41.4, 709 S.E.2d 666, 667

(2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d

650, 652 (2011). However, appellate courts review the

"family court's evidentiary or procedural rulings

using an abuse of discretion standard." Stoney v.

Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2

(2018).

III.DISCUSSION

A. Issues Abandoned on Appeal

Husband raises twenty-three issues in his statement

of the issues on appeal. For seventeen of these issues,

he either fails to argue the issue at all, to provide any

supporting legal authority for his conclusory

arguments, or to be specific as to what finding, ruling,

conduct, or evidence the issue he raises actually

pertains to.3 These issues are whether: (1) the family

3 Husband does split the issues into appropriately headed

sections and make arguments, mostly conclusory, for each issue

)

court demonstrated "contempt for justice" by ignoring

statute and manifest evidence; (2) the family court

erred by showing gender prejudice; (3) the family

court abused its discretion against manifest evidence;

(4) the family court acted against the preservation of

the marriage; (5) Wife committed libel and slander

against Husband; (6) the evidence showed cruelty by

Wife4; (7) there was evidence to support the income

in his reply brief. See Rule 208(b)(1)(E), SCACR ("The brief

shall be divided into as many parts as there are issues to be

argued. At the head of each part, the particular issue to be

addressed shall be set forth in distinctive type, followed by

discussion and citations of authority") However, these

arguments are for the most part still unsupported by citation to

any legal authority. Additionally, Husband cannot make vague,

conclusory arguments on "an issue in his final brief and then

reserve substantive argument as to that issue until his reply

brief. See Divine v. Robbins, 385 S.C. 23, 44 11.4, 683 S.E.2d

286, 297 n.4 (Ct. App. 2009) ("The reply brief is not the

appropriate vehicle to raise new issues on appeal; thus, we

decline to address this argument"); Bochette v. Bochette, 300

S.C. 109, 112, 386 S.E.2d 475, 477 (Ct. App. 1989) ("An

appellant may not use either oral argument or the reply brief

as a vehicle to argue issues not argued in the appellant's

brief.").

4 Husband's final brief does contain some argument with

supporting authority regarding cruelty, but it all pertains to his

argument Wife did not prove he committed physical cruelty—

rather than just emotional and religious cruelty. The only

section that potentially pertains to cruelty by Wife against

Husband is when Husband alleges Wife "projected her behavior

onto" Husband and acted coercively to get her way. Husband

has no law to support this statement and at no time alleged

physical cruelty by Wife as a potential ground of divorce in

either his final brief or his reply brief. Accordingly, we find this

issue abandoned on appeal.

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imputed to Husband by the family court5; (8)

Husband was the "more well[-] adjusted parent" for

custody purposes; (9) Husband was the more

reasonable parent for custody purposes; (10) the

evidence showed the guardian ad litem was biased

against him; (11) the evidence showed the family

court colluded with the guardian ad litem; (12) the

family court acted with integrity in applying the law

to the case; (13) the family court acted to subvert

freedom of religion; (14) the record shows the family

5 Husband failed to argue this issue at all in his final brief but

he argued it extensively in his reply brief and included citations

to legal authority. We find this issue was abandoned due to his

failure to argue it in his final brief. Nonetheless, on the merits,

We find the family court properly imputed $80,000 in income to

Husband given (1) he has four’ minor children to support; (2)

his education—he has a bachelor's degree in mechanical

engineering, a master's degree in engineering management,

and a master's degree in human relations—his skills in

software development, his prior employment history, and the

fact that he had a job offer paying $80,000; and (3) he chose to

be self-employed and start his own business selling software to

USAF bases, which made no profit in 2016. See, e. g., Kelley v.

Kelley, 324 S.C. 481, 489, 477 S.E.2d 727, 731 (Ct. App. 1996)

(providing in imputed income cases, courts closely "examine the

payor’s good-faith and reasonable explanation for the decreased

income," and "[ejfforts to frustrate support obligations are not

tolerated, nor are prolonged periods of unemployment generally

countenanced" (emphasis added)); id. ("[Cjourts are reluctant to

invade a party's freedom to pursue the employment path of

their own choosing or impose unreasonable demands upon

parties . . . Nonetheless, even otherwise unreviewable career

choices are at times outweighed by countervailing

considerations, particularly child support obligations."

(citations omitted) (emphasis added)).

}

)

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court acted with despotism6; (15) religion has a place

in family life and whether using religion against a

person of that religion is "inherently abusive"; (16) it

is more favorable to claim a religion and not adhere to

its teachings; and (17) it is better to be at fault or to

tell someone they are at fault. Thus, we find Husband

abandoned these issues on appeal. See Rule

208(b)(1)(B), SCACR ("The statement [of the issues on

appeal] shall be concise and direct as to each issue,

and may be stated in question form. Broad general

statements may be disregarded by the appellate

court"); Rule 208(b)(1)(E), SCACR ("The brief shall be

divided into as many parts as there are issues to be

argued. At the head of each part, the particular issue

to be addressed shall be set forth in distinctive type,

followed by discussion and citations of authority."

(emphasis added)); First Sav. Bank v. McLean, 31A

S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (considering

an issue abandoned because the appellant failed to

provide pertinent argument or supporting authority).

Accordingly, we affirm as to these issues.

B. Husband’s “eviction” from the Marital Home

Husband argues the family court's temporary order

should not have "evicted" him from the parties'

6 Husband's issue on appeal questions whether the family court

acted as a despot; however, the argument section of his final

brief alleges Wife acted as a despot. Husband provides no legal

authority regarding this particular argument; thus, we find the

issue is abandoned on appeal. See State v. Lindsey, 394 S.C.

354, 363, 714 S.E.2d 554, 558 (Ct. App. 2011) (stating an issue

is abandoned if the appellant’s brief fails to provide legal

authority).

12a

marital home by granting Wife temporary possession

of the parties' marital home based on Wife's

allegations of psychological and emotional abuse

because the only type of abuse South Carolina

recognizes as a ground for divorce is physical abuse.

We disagree.

Initially, we find this issue moot because Husband's

eviction from the parties’ marital home was part of

the temporary order and did not affect his rights at

the divorce hearing. See Terry v. Terry, 400 S.C. 453,

456-57, 734 S.E.2d 646, 648 (2012) ("A temporary

order of the family court is without prejudice to the

rights of the parties. Such orders are, by definition,

temporary—they neither decide any issue with

finality not affect a substantial right.... The family

court at the final hearing has the authority to redress

any error from the temporary order."). Moreover, in

the final divorce decree, the family court granted

Wife's request for a 50/50 division of the parties'

marital property, which Husband did not dispute.

Thus, any ruling by this court regarding Husband's

eviction from the marital home pursuant to the

temporary ruling will have no practical legal effect in

this case.

Nonetheless, on the merits, we find the family court

did not err in granting the parties’ mutual request to

live separately from each other and granting Wife

temporary possession of the marital home because it

granted her sole custody of Children. See Jones v.

Jones, 281 S.C. 96, 100, 314 S.E.2d 33, 36 (Ct. App.

1984) (providing a family court does not necessarily

have to award exclusive use of the marital home to

13a

the custodial spouse in every case, and it must "weigh

the cost, inconvenience and other hardships that may

be experienced by requiring the custodial spouse to

move out of the marital home to the burden imposed

upon the non-custodial parent in being unable to

realize his equity from a sale or other disposition of

the home"; however, the award of custody to the

custodial parent "may constitute sufficient reason for

granting the custodial spouse exclusive use of the

marital home" in some cases). Accordingly, we affirm

as to this issue.

C. Desertion, Constructive Desertion, Marital

Fault, and Alimony

Husband argues the family court erred in finding no

fault ground for the divorce—while simultaneously

noting Husband's use of his Christian faith against

Wife caused the -demise" of the marriage—and in

granting Wife alimony when Wife deserted or

constructively deserted him.7 We disagree.

We find the family court did not err in finding no

ground for marital fault applied in this case, and thus,

the family court was not obligated to consider marital

fault when it granted Wife alimony. First, We agree

with Wife that the family court did address marital

fault in its order because it went through possible

reasons for the demise of the marriage—noting

Husband's pornography addiction and use of religion

7 Husband also argues Wife committed cruelty and libel/slander

against him, but as noted above, he abandoned these issues on

appeal.

14a

against Wife as well as Husband's belief that Wife

should not receive alimony due to her failure to live

up to her biblical role—and found no ground for

marital fault applied. Accordingly, Husband's

argument the court failed to address marital fault is

meritless.

Second, We find the family court did not err in failing

to find Wife deserted Husband because both parties

asked for the right to live separate and apart in their

respective pleadings and were granted that right by

the family court in its temporary order. See Machado

v. Machado, 220 S.C. 90, 101-02, 66 S.E.2d 629, 634

(1951) ("There can be no desertion where the

separation of the spouses is upon mutual consent and

under a separation agreement, and hence the

existence of such an agreement may be advanced as a

defense to a suit for divorce on the ground s of

desertion." (quoting Morland, Keezer on the Law of

Marriage and Divorce, § 528 (3d ed.))). Because the

parties mutually separated, desertion does not apply

this

case.

Third, we find the family court did not err in finding

Wife did not constructively desert Husband because

Wife left Husband. Constructive desertion would only

apply if Husband left Wife and argued Wife's conduct

forced him to leave and also constituted a fault ground

for divorce. See Mincey v. Mincey, 224 S.C. 520, 531,

80 S.E.2d 123, 129 (1954) ("In order to constitute

constructive desertion, the abandoning party seeking

to make a technical deserter out of the one

abandoned, must establish misconduct on the part of

the other in itself, and independently, amounting to

15a

one or more of the recognized permitted grounds for

divorce. The conduct complained of must in itself be a

sufficient cause for divorce, one or more of the four

grounds

permitted

the

constitutional

amendment"). Because Husband did not leave Wife,

Husband cannot claim constructive desertion.

Finally, because desertion and constructive desertion

are not applicable in this case, we find Husband's

argument that Wife should not have been granted

alimony due to her alleged marital fault in deserting

or constructively deserting him without merit.

Accordingly, We affirm as to this issue.

D. Reversal of the Family Court’s Findings and

Rulings

Husband argues the family court's findings and

rulings should be reversed based on all of the other

arguments raised in his appeal. We disagree.

We agree with Wife that Husband did not properly

format his brief or provide argument with supporting

authority for this particular issue. However, he did

provide arguments with supporting law for at least a

few of his issues on appeal, and given this issue's

reliance on Husband's other issues, we cannot find

this issue abandoned. Nonetheless, because we affirm

the family court on all of Husband's other issues, we

also affirm the family court on this issue.

16a

AFFIRMED. 8

THOMAS, HILL, AND HEWITT, JJ., concur,

8 We decide this case without oral argument pursuant to Rule

215, SCACR

17a

APPENDIX C

IN THE FAMILY COURT OF SOUTH

CAROLINA

NO. 2015-DR-43-1428

MS. CHRISTINE CRABTREE

MR. DONALD CRABTREE

TRIAL DATE:

DATE OF RULING:

TRIAL JUDGES:

TRIAL COURT:

ATTRONEYS FOR

DEFENDANT:

ATTORNEYS FOR

PLAINTIFF:

October 2, 3, 4,

2017

12/04/2017

MONET S.

PINCUS,

FAMILY

COURT JUDGE

SUMTER

COUNTY

MR DONALD

CRABTREE

PRO

MICHAEL W.

SELF

GUARDIAN AD LITEM: JAMES

STODDARD

r i

18a

NATURE OF CASE:

CIVIL

MOTION FOR

RECONSIDERATION

FILED:

12/11/2017

MANDATE ISSUED:

01/26/2018

This matter came before the Court for a final

hearing on October 2, 3, and 4, 2017. Each day, the

Plaintiff, (Mother or Wife) appeared with her

attorney, the Defendant, (Father or Husband)

appeared Pro Se and the Guardian ad Litem, James

Stoddard appeared on behalf of the children1.

This action was commenced by the Mother filing a

Summons and Complaint dated November 10, 2015,

seeking a Decree of Separate Support and

Maintenance custody, restricted visitation, child

support, alimony, Restraining Orders, use of the

home and vehicle, equitable division, attorney’s fees

and other and other [sic] related relief.

The Father filed an Answer and Counterclaim dated

November 13, 2015, seeking the right to live

separate and apart, custody, or in the alternative

joint custody, reserving child support to be

1 At the conclusion of trial in this matter, the Plaintiff and the

Defendant each filed a Motion for Reconsideration of certain

terms of the original Final Order and Decree of Divorce. The

Court granted the Plaintiff's Motion and denied the

Defendant's Motion. This Order amends the Final Order and

Decree of Divorce dated December 4, 2017, to make certain

amendments per the Mother’s Motion for Reconsideration.

19a

addressed in the future, that Mother not be awarded

alimony, equitable division of assets, attorney’s fees

and other related relief.

The Mother and Father are both residents of the

State of South Carolina and have been for more than

(1) year prior to the commencement of this action.

They are husband and wife, having been married on

August 12, 2000 in Washington State. From their

marriage four (4) children have been born, to wit:

Zackary C., whose year of birth is 2007, Trenton C.,

whose year of birth is 2009, Dylan C., whose year of

birth is 2011 and Ashley C., whose year of birth is

2013. No other children have been born and none

are expected. They last resided together as husband

and wife in Sumter County.

A temporary hearing was held on November 18 [sic

date is Nov 13], 2015 in which the Court issued a

Temporary Order dated December 29, 2015. The

Father filed a Motion for Reconsideration dated

January 18, 2016 of the Temporary Order which was

denied by the Court. The Father filed a Petition for

Supersedeas dated March 23, 2016 of the Temporary

Order which was denied by the Court of Appeals on

August 23, 2016. An Order and Rule to Show Cause

was filed by the Mother against the Father and

dated January 28, 2016 and this Court issued a Civil

Contempt Order dated April 6, 2016 finding Father

in civil contempt. On June 22, 2016, the Husband

filed a Notice of Appeal of the Civil Contempt Order

dated April 8, 2016. The appeal is pending.

20a

The Father filed a Motion for Modification of

Custody, Support Obligations and Other Relief dated

November 17, 2016 and the Cout issued an Order

dated March 6, 2017 modifying certain parts of the

Temporary Order as to the Father’s schedule with

the children. The Mother filed a Rule to Show Cause

dated March 10, 2017 and the Court issued an Order

dated Mary 23, 2017 finding the Father in civil

contempt. The Father’s former counsel, Harry C.

Wilson, Jr. was relieved by this court in an Order

Relieving Counsel dated March 10, 2017. The

Mother filed a Summons and Amended Complaint

dated May 16, 2017, seeking a divorce on the ground

of one year separation and the balance of relief set

forth in the original Complaint. The Father filed an

Answer dated June 19, 2017. The Mother filed a

Motion to Strike parts of the Father’s Answer on

June 23, 2017 and the Court issued an order dated

July 27, 2017, striking portions of the Father’s

Answer. The Father filed an Amended Answer and

Counterclaim dated September 22, 2017. At the

commencement of this action Mother moved to strike

the Amended Answer and Counterclaim and the

Court granted Mother’s Motion.

Mother filed a Motion dated September 18, 2017

seeking reimbursement or payment from Father for

expenses either under the Temporary Order or

reimbursement for expenses she paid which Father

owed under the Temporary Order. This Motion is

addressed by the Court in this Order.

21a

The pleadings have been joined. This Court has

personal and subject matter jurisdiction. This

matter is properly before this Court.

The Court inquired to each party as to whether there

was any chance for reconciliation. Based upon the

response of each party, the Court certifies that

further efforts at reconciliation would be unavailing.

Based upon the appropriate pleadings, evidence,

testimony, and information submitted to the Court, I

find as follows:

FINDINGS AND RULINGS

1. QBSERAVATIONS DURING TRIAL: This

matter was tried over several days. During the

trial, the Court had substantial opportunity to

observe both of the parties and their demeanor

during their own testimony and during the

testimony of other witnesses and to judge the

parties’ credibility.

2. DIVORCE: Wife is granted a divorce on the

ground of living separate and apart for more than

one year. The parties separated on November 9,

2015 and have lived separate and apart since

that date. The testimony was clear and

convincing and duly corroborated.

3. CUSTODY: Mother shall have custody of the

minor children. She has been their primary

caretaker their entire fives; the children are

thriving in her care and it is in their best interest

for her to have custody. Mother may relocate to

the State of Washington with the children.

22a

4. CUSTODY FINDINGS:

4.A.

The Court considered the statutory

factors contained in §63-1 5-40(8), which set

out the factors the Court must consider when

issuing a custody Order. The factors the

Court considered were as follows:

4.A.I. It appears the children are happy and

thriving living primarily with the Mother.

Mother has been responsible for the

education, medical and daily needs for

the children.

4.A.2. Mother has voluntarily attended

individual counseling since the separation

and during the litigation in and effort to

address her problems and areas where

she needs improvement and growth.

Mother has grown and effective positive

change from her counseling. Father has

not attended counseling, nor shown a

genuine interest in doing so. It appears

from the manner in which he questioned

the Guardian and Dr. Marc Harari, (the

psychologist who performed the

psychological evaluations on the parties)

that Father needs to be convinced that he

is a candidate for counseling before he is

willing to engage. Father still does not

believe or validate Mother’s concerns or

any of her complaints she alleges led to

the breakup of the marriage. Father has

not shown the same emotional or

psychological growth since the separation

as the Mother has.

23a

4.A.3. In this case, the children were too

young to consider the preferences of the

children.

4.A.4. Many aspects of the Father’s conduct

described by Mother and demonstrated by

evidence admitted at trial, are peculiar

and troubling and have a bearing on this

issue of custody. While the Court finds

that Father is a good Father and loves

the children and that they are wellbonded with him, the Court cannot ignore

certain conduct by Father toward Mother

that has made it impossible for the

parties to co-parent or communicate.

Father refused to acknowledge, validate

or lend credence to Mother’s repeated

concerns over the years regarding the

parties’ relationship. Fathers repeated

use of the Bible in general and specific

scriptures in particular, regarding

mother’s conduct, behavior and role as a

Mother and Wife, quoted to Mother were

manipulative, condemning and

demeaning. Mother was often told by

Father that she had to obey and submit to

him. Father has called her a scoundrel,

an idiot and stupid. He professed that he

was superior to her; that he loathed her

and that she disgusted him. He recorded

Mother on multiple occasions, too many

to count, while the parties were living

together, some with and some without

her knowledge. He sent her a Letter of

Admonishment which was entered into

24a

evidence. The parties profess a strong

Christian faith, but Father’s use of this

Christian faith toward Mother in this

regard was the main cause of the demise

of the marriage and ultimately led to the

Mother shutting down and becoming

depressed and anxious. It let to the

parties’ inability to communicate and it

let to Mother seeking counselling.

Father refused to take responsibility for

the demise of the marriage or refused to

acknowledge his conduct may have been

inappropriate. Father refused to

acknowledge he may be in need of

counseling or could benefit from

counseling. Father refused to answer

Mother’s attempts at email

communication regarding child-related

matters in a direct manner. Exampled

provided were email exchange between

the parties regarding Mother’s request

that Father do homework on one of his

visitation nights, and Mother’s request

that Father not use Mother’s yard as a

pathway to the pool during his visitation

times. Another concerning example is an

email from Mother to Father asking him

where he was living and refused to

provide her an answer. Mother eventual

found out were Father lived at the last

hearing. He is renting a room from

someone.

4.A.5. The Mother and Father both have a

close relationship with their children.

25a

The Mother did testify that the Father

went a significant period of time without

seeing the children after the Temporary

Order was issued. The Mother is more

likely to encourage a relationship

between the children and the Father’s

side of the family (grandparents, cousins,

aunts and uncles). The Father has a

strained relationship with the Mother’s

parents. The Mother endorses the Father

as a parent more so than the Father does

the Mother. The Father has little respect

for decisions of the Mother and her

parenting, and has tried to undermine

her input and decisions for the children.

4.A. 6. The Court finds that the Mother’s

willingness to address concerns, including

her part in the demise of the marriage,

and her willingness to make behavior

changes that positively impact her, give

the Court confidence that Mother is

better suited to have custody of the

children.

4.A. 7. Father admits talking to the children

about the litigation although listening to

both parties’ testimony on this issue,

Father has underplayed the extent to

which he has involved the children in the

litigation. According to Mother, the

children have talked about court, judges,

winning, home schooling and lawyers.

They have told her she is lying and she

thinks Daddy is going to kill them. They

were aware the house payment was not

26a

being made. Mother has never talked to

them about the litigation. Father admits

he has discussed litigation with the

children. The Court finds that Mother’s

testimony is credible.

4.A.8. Mother is more likely to foster a

healthy relationship between the children

and Father. Father has tried to cause

the children to doubt Mother, mistrust

her and he has tried to turn them against

her.

4.A.9. The Court finds Father has not

prepared the children for school; he has

not prepared their school or weekday

lunches; he has not prepared their

backpacks or been responsible for their

homework. Mother has been the primary

caretaker for the children throughout

their lives. She has been a stay-at-home

mom.

4.A. 10. The Court finds that Mother will

most likely bring about better-adjusted,

mature individuals if she is awarded

custody. The school-age children are

well-adjusted in school, all are welladjusted in the home, have friends and

are doing well.

4.A.11. The Court finds that the Father has

not made a home for the children and

does not currently have a place for the

children to live with him if he were

awarded custody. He is renting a room

from a third party. The Mother is well

27a

settled in the marital home and has a

plan in place for their continued care.

4.A.12. The mental and physical health of

both parties are good and there were no

issues with either parties’ mental and

physical health.

4.A.13. The children’s cultural and

spiritual backgrounds are not an issue in

this case. The parties profess a strong

Christian faith, but the Father’s use of

his Christian faith toward the Mother in

this regard was the main cause of the

demise of the marriage. The Mother has

continued to insure [sic] that the children

attend church as had been the custom

prior to the parties’ separation. During

Father’s visitation, he has continued to

encourage the children’s spiritual

background.

4.A. 14. The Court does not find that any of

the children in this case have been

abused or neglected.

4.A.15. The was an incident of domestic

violence prior to the children being born.

The Mother testified that there has been

no further acts of physical abuse by the

Husband toward the Wife. This Court

does not find that domestic violence had

an effect on the children in this case.

4.A.16. The Mother and the children have

both remained in the former marital

home and the children’s stability has not

been an issue in this case.

28a

4.A.17. The Court considered the

Guardian’s report, both written and his

testimony, but did not request a

recommendation as to which party

should receive custody. The Guardian

was subject to cross-examination by each

party.

4.A.18. Joint custody is not in the best

interest o the children. The parties

cannot co-parent and cannot

communicate. Mother’s attempts to

communicate with Father regarding

child-related matters during the

separation were direct and on point and

were met with vague, indirect,

unresponsive answer from Father.

5. RELOCATION FINDINGS:

5.A.

This matter is unique as it not only

deals with custody of the minor children, but

also relocation of the minor children. Mother

wishes to return with the children to the

State of Washington where both she and

Father’s extended family reside. Both sets of

grandparents live in Washington and Mother

and Father’s siblings live there as well. This

is where the parties are from originally.

Father did not dispute Mother’s request to

relocate at trial. This Court believes the

evidence clearly favors an award of custody to

Mother; however, her desire to relocate

requires additional analysis by the Court.

5.B.

This Court finds that this is not a

traditional “relocation” case in that there has

not been a final determination of custody

29a

which would require a changed circumstances

analysis. The more typical case faced by the

Family Courts are those where custody has

been determined by a Final Order and the

custodial parent then seeks to relocate. This

is an initial custody determination that now

has the issues of relocation as a component of

the best interest analysis.

5.C.

The Court finds that the Mother is

seeking to return to Washington so she and

the children can be close to the parties’

extended family. She will have a place to live

and help with child care. The parties do not

have any family in Sumter. The children will

be able to see all of their grandparents on a

much more consistent basis than they can

now. Neither party has any familial or

employment ties with South Carolina at this

time. Father’s most recent job offer was in

Colorado. It is clear Mother is not seeking to

relocate on a whim, but rather to improve her

quality of life and the children’s quality of

life. Her request is not made to alient the

children from Father. The move will bring

the children in very close proximity to

Father’s parents’ home which is where Father

will spend time as well.

5.D.

The Court considered that both

parents have a close relationship with the

children and the parents are loving parents.

5,E.

Mother acknowledged there would

be some adjustment upon the move and the

Father would not have as much physical

contact during the week that he exercise now

30a

if he remains in South Carolina. However, if

Father accepts the job offer in Colorado, he

would not have the same visitation schedule

he enjoys now. If Mother and Father live in

different states, Father’s visitation can be

extended during holidays, summers, and days

off from school to compensate for the possible

schedule adjustment. Regardless of where

the children reside, Mother agrees to keep

Father informed of all events and activities of

the children, as well as inviting Father to any

events or activities the children have, as well

as encouraging Father’s communication with

the children’s care providers, coaches,

teachers, etc.

5.F.

Mother testified she and the

children would benefit from the move,

especially economically and with being able to

visit their grandparents regularly. The

Mother and the children would have a free

residence to five in initially, and the

grandparents would provide

childcare/afterschool care for the minor

children, thus eliminating the cost of

daycare/afterschool care for the children.

Additionally, the children would have a

larger support network where they would be

able to see and enjoy family members on both

Mother and Father’s side. Mother’s

opportunities for employment in Washington

are far greater than in Sumter. She will

have help from family for care of the children

and help from family to find employment.

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31a

6. VISITATION: Father is granted reasonable

and liberal visitation pursuant to the attached

schedules depending upon whether or not Mother

relocates to Washington. (Exhibit 1 and 2).

7. PARENTAL GUIDELINES. RIGHTS AND

RESTRICTIONS: The attached parental

guidelines, rights and restrictions are part of the

Court’s Order. Parental communication is

addressed in the attached Guidelines and

Restrictions. (Exhibit 3)

8. IMPUTED INCOME: This finding is based upon

the Father’s employment history and experience,

his occupational qualifications including his

qualifications in software development and

business ownership, and the prevailing job

opportunities and earning levels as testified to by

the Father and as presented in the Father’s

Exhibits 19, 21 and 25. The Father received his

Bachelor of Science in Mechanical Engineering in

2001, a Master of Science in Engineering

Management in 2008 and a Master of Art in

Human Relations in 2015. The Father achieved

the rank of Major in August of 2011 in the United

States Air Force and served as the Operations

Flight Commander of the 20th Civil Engineering

Squadron at Shaw Air Force Base from July,

2012 through December, 2014. The Father is

currently in the United States Air Force Reserves

in support of Air Force Space Command in

Peterson Air Force Base, Colorado. Father

testified he had just received a job offer teaching

at the Air Force Academy with a Major’s pay of

$80,000 per year and that the job offer is still

viable. There is no dispute that Father can work

32a

full-time and has above average qualifications.

Father wants to base his income on anticipated

self-employment qualifications. However, since

his separation from the military, he has

attempted to be self-employed, without any

appreciable income. His efforts at selfemployment, while commendable, have not

resulted in income to provide support. The Court

finds it appropriate, based on the evidence

presented to impute employment income to

Husband in the amount of $80,000 per year. The

court declines to impute income to Mother at this

time. The Court finds Mother is severely limited

in finding employment as the custodial parent

given her limited earning capacity, the number of

children, the current minimum wage and the cost

of daycare for 4 children. The parties shall

exchange income verification annually on or

before April 15th for as long as Father has child

support or alimony obligation to Mother. Income

verification shall include any and all documents

necessary to determine a parties’ annual income

such as end of the year pay check, W-2, 1099,

negotiated checks, and/or written offers of

employment contracts. Each party is to

immediately notify the other party upon

acceptance of a full-time employment position.

Notice shall include rate of pay.

9. CHILD SUPPORT: Child support shall be set

pursuant to the South Carolina Child Support

Guidelines (Exhibit 4) based on the financial

information contained in the record. Father’s

income shall be imputed at $80,000 per year or

$6,666 per month. Father has additional income

33a

from rental income from the Washington house,

reserve bonus pay, and reserve pay for a total of

an additional $1,344 per month. Father’s total

monthly income is $8,010. Father shall continue

to pay child support to Mother through the

Family Court for Sumter County with the Court

costs paid by the Father. Payments shall be at

the rate of $1,4042 per month, beginning the first

day of the first month following the date of this

Order and on the first day of each month

thereafter. The Court denies Father’s request for

a retroactive adjustment to child support.

10. HEALTH INSURANCE AND

UNINSURED/UNCOVERED HEALTH

RELATED COSTS: Father shall continue to

maintain the status quo on any type of health

insurance he has for the minor children. He has

the children covered through Tri-care through his

military reserve. Any uncovered or un

reimbursed health care costs incurred on behalf

of the minor children of any nature whatsoever

(except basic over the counter medication),

including medical, dental, prescription, co-pays,

vision, mental health and orthodontics, shall be

divided between the parties on a pro-rata basis

after Mother pays the first $250 per year per

child and thereafter divided with the Father

paying 80% and the Mother paying 20% of the

uncovered expenses. A party shall provide the

2 The Court changed the Alimony Order on Page 16 in the

original Decree which affected the child support and pro-rata

split.

34a

other with written notice of the uncovered cost by

either statement or receipt from the provider or

an EOB and the other shall make payment to the

provider if payment is due to provider or shall

reimburse the paying party for his/her share

within thirty days of the notice being given.

Mother shall be solely responsible for her own

health insurance and the costs thereof upon the

issuance and date of filing of this Order.

11.TAX DEDUCTIONS/EXEMPTIONS: Mother

is entitled to claim the minor children as her

dependents for any legal purposes including for

all tax deduction for exemption purposes.

12.ALIMONY FINDINGS:

12.A.

The parties were married

approximately 15 years and 3 months prior to

separation. This is a long-term marriage.

Wife is 38 and Husband is 40. Both parties

are in good health. Mother attends

individual counseling and takes and anti

depressant as prescribed. Father does not

attend counseling. While there are some

psychological concerns of each parent that

were brought to the Court’s attention through

evidence, the Court finds that neither parent

has a psychological or emotional condition

that would interfere with his or her

employment abilities, earning capacity or

parenting abilities.

12.B.

Wife has a Bachelor’s degree.

Husband has a Bachelor’s Degree and two

Master’s Degrees. Neither party presented

35a

evidence of the need for additional training or

education to achieve income potential.

12.C.

As for employment history,

Husband was a student when the parties

married and entered the Air Force in 2001.

He remained in the military for 14 years. He

submitted his employment history from 2014

through present (Defendant’s Exhibit 19).

He is currently a Software Developer and

Major in the Air Force Reserves according to

his financial declaration. Wife is not

employed. She has been a stay-at-home

Mother for the last ten years. She has some

experience in administrative duties; she

worked at a daycare before marriage; and has

been a part-time nanny and part-time

substitute teacher before having children.

12.D.

During the marriage, Husband was

the primary wage earner. The parties lived a

middle-class lifestyle off o the Husband’s

earnings and incurred a consumer debt when

needed. They each have a used vehicle. They

took family vacations and bought clothes as

needed at stores like Kohl’s, they have a

home with a mortgage that is about 3200

square feet in an upscale neighborhood. They

own no expensive jewelry. They moved

during the marriage about every two years

and have lived in several different states,

cities and overseas, as a result of Father’s

employment in the military. Wife followed

the Husband in his career and necessary

moves.

36a

12.E.

Wife believes she can only earn

minimum wage at this time as she has no

unique marketable skills. In Washington,

where she wants to relocate, minimum wage

is $11.00/hour and that is her anticipated

earnings. Husband reports $4844/month on

his financial declaration from selfemployment income, reserve bonus, reserve

pay, and rental income profits. Husband’s

2016 contract employment pay was $60,000

per year if he had worked for an entire year.

Husband was recently offered a job as a

Major making Major’s salary of $80,000 per

year at the Air Force Academy in Colorado.

The offer came in about three and a half

weeks before trial and he told the Academy

he would let them know after the trial was

concluded. Husband testified the job is still

potential open for him to accept.

12.F.

As to each parties anticipated

financial needs, the Court considered their

expenses reported on their financial

declarations and that the Wife will have an

approximate additional $500/month expense

for health insurance costs once divorced. Her

monthly expenses are $4,330.92 which are

reasonable. Husband reported some nonmarital property on his financial declaration

valued at approximately $10,000; Wife

reported none.

12.G.

Wife is awarded custody pursuant

to this Order and has had primary custody

since the separation. She was also the

primary caretaker of the children throughout

37a

the marriage. She testified of the difficulty of

finding affordable childcare for four children;

the difficulty of coordinating all of the pickup

and drop offs for school, child care and

activities; and that she would be responsible

for caring for the children when they get sick.

This has significantly impacted her ability to

find full-time employment since the

separation. The parities’ multiple moves

during the marriage; Husband’s deployments

during the marriage; the number of children

of the parties; the schedules of the children;

the cost of day care (about $1000/month); and

Wife’s very limited employment skills

severely limited and continue to limit Wife’s

ability to find employment outside of the

. home.

12.H.

The Court considered both parties’

testimony regarding marital misconduct or

fault, including the findings made above

relevant to custody. Additionally, Father has

admitted to addiction to pornography. He

admitted he objectifies women; and he told

Mother he would get his needs met

somewhere else if she would not meet his

needs. Husband made it impossible for Wife

to remain in the marriage and she needs

alimony. Husband does not believe that Wife

should be awarded alimony because she

betrayed and broke faith in the relationship

between the parties and she did not live up to

her biblical role. The Court finds there is no

statutory fault ground for divorce applicable

to this case.

38a

12.1.

As for tax consequences for an

alimony award, no specific evidence was

presented; however permanent alimony

would be taxed as income to Wife and

deductible by Husband. Neither party has

any other support obligation.

13.ALIMONY ORDER;

13.A.

Father is ordered to pay Wife

permanent periodic alimony in the amount of

$1,6003 per month through the Sumter

County Family court along with the

administrative fee. Payments shall be made

by the first of every month, beginning the

first day of the first month after this Order is

issued and on the first day of each month

thereafter. Additionally, Father shall keep in

place and maintain his current life insurance

policy (SGLI) with the current benefits and

Mother shall be named as irrevocable

beneficiary, in order to secure his alimony

and child support obligation. This obligation

to maintain SGLI insurance terminates at

such time as the Father’s child support,

alimony, and all financial obligations to the

Wife, have terminated.

13.B.

Husband has been held in civil

contempt twice during this action for failure

to pay his obligations under the Temporary

Order. Wife is reliant on Husband for child

support and alimony and she has no other

sources of income. Husband has shown that

3 After further review of the record, the Court changed the

Alimony Order to $1,600 per month from $1,300 per month.

(

)

39a

he is inconsistent with his financial

obligations. Husband’s death will severely

financially impact Wife and children.

Husband has tried to be self-employed since

his full-time employment with the military

ended. He has not been successful in his selfemployment endeavors and has utilized

marital funds (which he was prohibited from

using by the Temporary Order) in part to

satisfy his obligations during this action. As

a result, the Court finds that special

circumstances exist for Husband to be

required to maintain life insurance on his life

to secure his alimony and child support

obligation.

13.C.

Husband shall have this obligation

for as long as he has any financial obligation

to Wife. Husband has an affirmative duty to

provide verification of this policy and the

beneficiary, to Wife annually when the

parities exchanged financial information by

April 15th, and at other times as requested by

Wife.

14.EQUITABLE DIVISION FINDINGS:

14.A.

Wife asked for a 50/50 division of

the marital estate. Husband did not dispute

the 50/50 division request. As to the

additional statutory factors not addressed in

the alimony findings, Wife entered an Asset

List exhibit which delineated the marital

assets, debts and personal property along

with the values. The contents of this Asset

List where not dispute by the Husband. The

)

40a

Court adopts this Asset List as its finding on

the identity of the marital estate and the

value of the marital estate with one exception

delineated on the attached Asset List.

(Exhibit 5). The Court finds that Husband’s

Roth IRA should be valued at $29,944. This

was the value of the account at the end of the

month of November 2016 prior to Husband’s

first withdrawal on December 30, 2016 which

was in violation of the Court Order.

14.B.

As to each parties’ contribution to

the marital estate, Husband was the only

wage earner during the majority of the

marriage. Wife sacrificed her own career for

Husband’s career. Husband was deployed

three times during the marriage. The

parties moved multiple times and lived in

multiple states during the marriage,

including overseas. Wife took care of the

child rearing and has done and excellent job

as their primary caretaker. Wife maintained

the parties’ homes while Husband was away.

Wife managed the finances. Husband

decreased the value of marital assets during

the litigation by withdrawing funds from a

USAA Roth IRA #114373 in violation of a

Court Order.

14.C.

Wife does not appear to have the

present ability to acquire any additional

capital assets. Husband has the ability to

acquire capital assets given his age,

experience, earning potential, Master’s

degrees and his above average skills in

software development, working with drones,

41a

and marketing skills. As for retirement

benefits, each party has a Roth IRA; there is

a Thrift Savings Plan; and Husband has

earned military retirement benefits during

the marriage.

14.D.

Wife is asking for the ownership

and possession of the marital home as part of

her equitable division award. She and the

children live there and the children are

currently in school. She testified as to the

reasons why she does not want to own

anything with Husband that she will have to

sell, like the marital home; nor would she

want him to own anything that has her name

attached to it if at all possible. Based on

their history, she would have an extremely

difficult time working with him in any

capacity to further the sale of the home and

she would be concerned about Husband

owning anything that has her name attached

to it. Her testimony was compelling.

15.EQUITABLE DIVISION ORDER;

15.A.

The marital estate shall be divided

on an equal basis. To accomplish this

division, each party shall have the exclusive

ownership, use and possession of the property

and accounts listed on the attached Proposed

Division. (Exhibit 6). Each party shall have

the sole ownership, use and possession of this

property free from claims from the other

party. Each party is solely responsible for all

costs of his/her own personal property. Since

Wife was awarded custody, she is granted the

sole ownership, use and possession of the

42a

children’s property and belongings. Each

party has been granted real property that has

a joint mortgage with the other party.

Husband and Wife shall each have none (9)

months from the date this Order is filed to

sell or refinance their respective real property

to remove the other party’s name. If a party

is making good faith efforts to sell or

refinance their respective property, this may

be extended for upt to a total of twelve (12)

months. If a party has not been able to

refinance within 9 months, and has not listed

the property for sale by then, the property

shall immediately be listed for sale within

two weeks from the expiration of 9 months

and shall remain on the market until sold or

refinanced.

15.B.

Immediately upon this Order being

filed, the Husband shall sign any and all

documents necessary to transfer the deed and

property granted to the Wife per the terms of

this Decree. Counsel for Wife shall prepare

the deed(s) for signature. Counsel for Wife

shall also prepare a special power of attorney

for the Husband to sign allowing the Wife to

take any action necessary with regards to the

refinancing or selling of the property without

needing the signature of the Husband on any

other document. Upon receipt of an affidavit

attesting to the same, the Clerk of Court for

Sumter County is authorized to sign any

documents necessary to effectuate this Order

should the Husband refuse to sign or be

unavailable to sign.

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43a

The Wife shall not be required to

15.C.

transfer her interest in the home in

Washington to the Husband, or execute a

deed transferring her interest, until such

time as the Husband has made payment to

the Wife under the terms of this Decree by

way of equitable division and attorney’s fees

and costs. If the Wife has not previously been

paid, she shall be paid the equitable division

payment and attorney’s fees owed to her by

the Husband at the closing of the sale of the

Washington home directly from the sales

proceeds, from the closing attorney. Upon

payment of equitable division and attorney’s

fees owed by the Husband to the Wife, the

Wife shall execute a Quit Claim Deed

transferring her interest in the Washington

home to the Husband at that time. It is the

Court’s intention to provide the Wife with

security interest in this Washington property

until the Husband has satisfied his obligation

to the Wife under the terms of this Decree.

The equalization payment of

15.D.

$37,957 shall be due from Husband to Wife

upon the earlier of the refinance or sale of

1018 N. Olson Hill Court or 120 days from

the date this Order is filed, which ever event

first occurs.

The marital portion of Husband’s

15.E.

earned military retirement benefit shall be

divided on a 50/50 basis. The marital portion

began on the date Husband entered service

(May 2001) through the date of filing this

action (November 2015). Counsel for Wife is

44a

responsible for preparing any Order

necessary to effectuate this division and the

Order shall be signed by Husband

immediately upon presentment, if necessary.

16.NO ADVERSE CONTACT ORDER: The

parties are granted a NACO. Each party shall be

restrained under the terms of a No Adverse

Contact Order (NACO) as follows; No Adverse

Contact: The parties shall be mutually subject to

a “no adverse contact order” (NACO) that shall

restrain the parties from engaging, directly or

indirectly, in any adverse, hostile, argumentative,

threatening or unpleasant conduct. This NACO

shall allow the parties to contact, associate with

each other only as it is related to the children or

child issues. When such contact occurs, it shall

be by text or email or recorded telephone contact.

This NACO is not intended to trigger any

elements of 18 USCA § 922(g)(9) nor is it

intended to rise to the level of or be considered

any Order of Protection under the South Carolina

Protection from Domestic Abuse Act. Violation

of the NACO shall subject the offending party to

contempt power of the Court.

17.GUARDIAN AD LITEM FEES:

17.A.

Without object from the parties, the

Guardian’s fee cap was increased at trial to

allow any and all billing necessary to bring

this matter to conclusion through the

execution of the final Order. The Guardian

has satisfied his statutory duties and

responsibilities and performed an

independent, balanced and impartial

investigation for the Court and is relieved

45a

upon the issues of this Order. The Court

finds the Guardian presented a report that

contained the facts relevant to this family’s

situation.

17.B.

The parties shall pay their

outstanding balances owed to the Guardian

within fifteen (15) days of the date the Order

is filed unless other payment arrangements

are made with the Guardian in writing. The

parties shall be equally responsible for the

Guardian’s fees and costs.

18.ATTORNEY FEES AND COSTS:

18.A.

Both parties requested attorney’s

fees and costs. Wife specifically requested

reimbursement of her attorney’s fees and

costs for the underlying litigation, the Court

of Appeals Costs that were awarded to her,

reimbursement for vehicle maintenance and

health insurance costs from Husband,

reimbursement of psychological evaluation

costs, reimbursement of mediator fees and

Appellate attorney’s fees. Husband was pro

se and is not entitled to fees. Husband did

not have the appropriate documentation or

Attorney Fee Affidavit to request fees he may

have paid to former counsel.

18.B.

In making its decision on attorney’s

fees and costs, the Court reviewed the prior

Orders that reserved Wife’s request for fees

for the final hearing, Wife’s Attorney’s Fees

Affidavits and bills attached thereto; the

financial declarations of the parties; the

evidence in the record applicable to attorney’s

46a

fees and costs; and the appropriate case law

factors.

18.C.

After this review, the Court finds

and concludes that Wife is entitled to an

award of attorney’s fees and costs from

Husband. Counsel for Wife filed and

Affidavit of Fees with this Court. He and his

staff had incurred 166.40 hours and he

charges $295 per hour and his paralegal

charges $85 per hour. The fees incurred and

hourly rates are reasonable and

commensurate with the fees charge by

counsel in the area of the same level of

experience and expertise. Counsel for Wife

has well prepared to represent her.

18.D.

The Court finds Husband is in a

superior financial position as compared to

Wife. He has more income and greater

earning potential. Husband has the ability to

pay his own former attorney’s fees and costs

in this matter and contribute to Wife’s

attorney’s fees and costs. On the contrary,

Wife has no income and has almost no

earning potential other than minimum wage.

Wife’s standard of living would be greatly

jeopardized if she were to have to pay fees.

Wife does not have the ability to pay her

attorney’s fees or costs nor contribute to

Husbands fees or costs. She has only been

able to retain counsel throughout the

litigation by charging fees and costs on a

credit card.

18.E.

The Court finds Wife’s counsel

obtained beneficial results in this matter.

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The primary issue in this matter was the

custody of their minor children and alimony.

18.F.

The Court finds this case involved

the issues of custody and relocation for the

minor children, along with alimony and

equitable division. The Court further finds

this case was prolonged and difficult at times

because of the Husband’s conduct during

litigation. Husband was found in contempt of

Court twice; he had credibility findings as

detailed in prior Orders; and he was found to

be dishonest in financial disclosures in prior

Orders. He sent volumes of information to

opposing counsel during the litigation when

he became pro-se and he filed multiple

documents with the Court much of which

were either improper or unnecessary, but

wich caused Wife to incur charges as her

counsel had to review the filings and file

motions to have certain filings struck from

the record. Husband also filed an

unsuccessful appeal and an unsuccessful

supersedeas during this case.

The Court finds the time Wife’s

18.G.

counsel devoted to the case to be reasonable

and necessary under the facts and

circumstances of the case. The Court finds

counsel for Wife is an accomplished family

law and trial lawyer and all of this practice is

devoted to family law. He is a Fellow of the

American Academy of Matrimonial Lawyers.

18.H.

The court finds there is no

contingency of compensation in family law

cases and that Wifes’ counsel charged hourly

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rates customary for Sumter County, South

Carolina. The rates are fair and reasonable.

18.1.

Based upon the forgoing, I find and

conclude the Wife is entitled to an award of

attorney’s fees and costs from the Husband as

follows: a) Court of Appeals Costs $638.50; b)

appellate attorney’s fees to defend

supersedeas $7,5000; c) reimbursement for

psychological fees $2250; and d) attorney’s

fees and costs $15,000.00.

18.J.

In addition, I find and conclude

Wife is entitled to reimbursement under the

Motion filed by her counsel for Wife for

reimbursement for vehicle maintenance

$2623.12 and reimbursement for health

insurance costs $870.04

18.K.

The total fees, costs and

reimbursement to Wife from Husband per

this Order total $26,631.66.

18.L.

Wife shall be responsible for her

own mediation fees and costs.

18.M.

Husband shall pay these fees

directly to Wife’s attorney’s Law Offices of

Michael W. Self, P.O. Box 2197, Sumter SC

29151. Husband shall pay these fees to

Wife’s attorney as follows: $4131.66 within

thirty (30) days of the filing of this Order for

appellate costs, vehicle maintenance

reimbursement and health insurance costs

reimbursement; the remaining balance due in

full within one hundred and twenty (120)

days of the filing of this Order; and a

minimum payment toward the remaining

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balance of at least $1,500 per month

beginning December 1, 2017.

CONCLUSIONS OF LAW

Based upon the foregoing Findings and Rulings,

the Court makes the following Conclusions of

Law:

1. It is axiomatic that the best interest and welfare

of the children is the controlling factor. The

Court must consider the totality of past and

present circumstances and facts peculiar to each

case and therefrom predict with which parent

custody will bring about the better adjusted

mature individual. Widdicombe v. Tucker-Cales,

366 SC 75, 620 SE2d 33 (Ct. App. 2005); Santosky

v. Kramer, 455 US 745, 102 S. Ct. 1388, 71

L.Ed.2d 599 (1982). After considering the past

and present circumstances in this case, the Court

finds that it is in the children’s best interest for

Plaintiff to have custody.

2. The Court “must consider the character, fitness,

attitude, conduct, attributes and inclinations of

each parent as they impact the child” as well as

who has been the primary care taker of the

children. Also, the age, health and sex of the

children must be considered. Further, the Court

should consider the “psychological, physical,

environmental, spiritual, educational, medical,

family, emotional and recreational aspects” as

related to the children. The “totality of

circumstances peculiar to each case constitutes

the only scale upon which the ultimate [custody]

v_.

50a

decision can be weighed and the court must

consider how the custody decision will impact on

all areas of the children’s life. Woodall v.

Woodall, 322 SC 7, 471 SE2d 154 (1996); Parris

v. Parris, 319 SC 308, 460 SE2d 571 (1995);

Paperalla v. Paperalla, 340 SC 186, 531 SE2d

297 (Ct. App. 2000); Poutain u. Poutain, 322 SC

130, 503 SE2d 757 (Ct. App. 1998); Davenport v.

Davenport, 265 SC 524, 220 SE2d 228 (1975);

Dixon v. Dixon, 336 SC 260, 519 SE2d 357 (Ct.

App 1999); Patel v. Patel, 347 SC 281, 555 SE2d

386 (2001) and Patel v. Patel, 359 SC 534, 599

SE2d 124 (2004). After weighing the total of the

circumstances peculiar to this case, the Court

grants custody to Plaintiff.

3. In issuing or modifying a custody order, the Court

must consider the best interest of the child, which

may include, but is not limited to factors 1-17 of

§63-15-240. The court considered these factors in

as much as evidence was presented. The Court

weighed the evidence in the record on these

factors and finds it is in the children’s best

interest for Plaintiff to have custody.

4. “As in all child custody cases, in relocation cases,

the controlling considerations are the children’s

welfare and best interest.” Latimer v. Farmer,

360 S.C. 375, 381, 602 S. E. 2d 3, 35 (2004). “The

effect of relocation on the [children’s] best

interests] is highly fact specific.” Id. While

South Carolina has not delineated criteria for

evaluating whether the best interest of the

children are served in relocation cases, our

Supreme Court has acknowledged, without

endorsing or specifically approving, factors other

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states consider when making this determination.

For example, our Supreme Court has indicated

the New York Court of Appeals considers:

4.1) Each parent’s reason for seeking or opposing

the relocation;

4.2) The relationship between the children and

each parent;

4.3) The impact of the relocation on the quality of

the children’s future contact with the noncustodial parent;

4.4) The economic, emotional, and education

enhancements of the move; and

4.5) The feasibility of preserving the children’s

relationship with the non-custodial parent

through visitation arrangements.

Additionally, our Supreme Court noted

Pennsylvania Courts consider the following

factors in relocation cases:

4.5.1.

The economic and other potential

advantages of the move;

4.5.2.

The likelihood the move would

substantially improve the quality of life

for the custodial parent and the children

and is not the result of whim of the

custodial parent;

4.5.3.

The motives behind the parent’s

reasons for seeking or opposing the move;

and

4.5.4.

The availability of realistic

substitute visitation arrangements that

will adequately foster an ongoing

relationship between the non-custodial

parent and the children. Walrath v. Pope,

384 S.C. 101, 681 S.E. 2d 602 (S.C. App.

52a

2009) ((citing Latimer v. Farmer, 360 S.C.

375, 602 S.E. 2d 32 (2004)). The Court

grant’s Plaintiffs request to relocate and

finds it is in the best interest of the

children.

5. Equitable distribution is based on the recognition

that marriage, is among other things, an

economic partnership. In making an equitable

division of marital property, the Court must: (a)

identify the marital property; (b) determine the

fair market value of that property; (c) apportion

the material estate according to the appropriate

statutory factors; and (d) provide for an equitable

distribution of the marital state, including the

manner in which the division is to take place.

See, Johnson v. Johnson, 296 S.C. 289, 372 S.E.

2d 107, certiorari denied, 298 S.C. 117, 378 S.E.

2d 445 (1998); Noll v. Noll, 297 S.E. 190, 375 S.E.

2d 338 (S.C. App. 1987). Marital Property is

defined as “all real and personal property which

ahs been acquired by the parties during their

marriage and which is owned as of the date of

filing or commencement of marital

litigation... regardless of how legal title is held...”

The marital estate is identified and valued per

the attached Exhibit 5 and divided on a 50/50

basis per the attached Exhibit 6.

NOW, THEREFORE, based upon the

foregoing it is ORDERED that the findings of

this Court, as set forth herein above, be, and

hereby are, approved and made and Order of

this Court in each and every particular, it is

further ORDERED that the Wife is granted a

complete and final divorce of and from the

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Husband pursuant to §20-3-10(5) of the

South Carolina Code Ann. (1976 as amended)

and the bonds of matrimony heretofore

existing be, and hereby are dissolved.

AND IT IS SO ORDERED

AT CHAMBERS

MONET S. PINCUS

Columbia, South Carolina JUDGE, FAMILY

COURT

01/22/2018

THIRD JUDICIAL

CIRCUIT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.