Rossington v. Rossington ( 2022 )

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
Nathenia J. Rossington, Appellant,
v.
Julio A. Rossington, Respondent.
Appellate Case No. 2019-001278
Appeal From Berkeley County
Michael S. Holt, Family Court Judge
Unpublished Opinion No. 2022-UP-025
Heard October 13, 2021 – Filed January 12, 2022
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART
Deborah Kay Lewis, of Charleston, for Appellant.
Brett Lamb Stevens, of Stevens Law, LLC, of Columbia,
for Respondent.
PER CURIAM: In this domestic matter, Nathenia Rossington (Mother) argues
the family court erred in (1) awarding joint custody of the parties' minor child
(Son), (2) calculating child support to be paid by Julio Rossington (Father), (3)
awarding an alternating dependent tax exemption between the parties, (4) failing to
find Father in contempt, and (5) failing to award Mother attorney's fees and costs.
We affirm in part and reverse and remand in part.1
1. We find the family court erred in setting joint custody of Son. The record is
replete with evidence showing the parties' inability to effectively communicate and
co-parent and that Father was often the initial aggressor for their disputes. Thus,
we find the joint custody arrangement awarded by the family court failed to serve
the best interest of Son. See Klein v. Barrett, 427 S.C. 74, 80, 828 S.E.2d 773, 776
(Ct. App. 2019) ("In a child custody case, the welfare of the child and what is in
the child's best interest is the primary, paramount, and controlling consideration of
the court." (quoting McComb v. Conard, 394 S.C. 416, 422, 715 S.E.2d 662, 665
(Ct. App. 2011))); id. at 81, 828 S.E.2d at 776 ("While numerous prior decisions
set forth criteria that are helpful in such a determination, there exist no hard and
fast rules and the totality of circumstances peculiar to each case constitutes the
only scale upon which the ultimate decision can be weighed." (quoting Clark v.
Clark, 423 S.C. 596, 605, 815 S.E.2d 772, 777 (Ct. App. 2018))); S.C. Code Ann.
§ 63-15-230(A) (Supp. 2020) ("The court shall make the final custody
determination in the best interest of the child based upon the evidence presented.");
Bojilov v. Bojilov, 425 S.C. 161, 176, 819 S.E.2d 791, 800 (Ct. App. 2018) ("In
making its custody determination, '[t]he family court must consider the character,
fitness, attitude, and inclinations on the part of each parent as they impact the
child,' and it should also consider 'the psychological, physical, environmental,
spiritual, educational, medical, family, emotional[,] and recreational aspects of the
child's life.'" (alterations in original) (quoting Woodall v. Woodall, 322 S.C. 7, 11,
471 S.E.2d 154, 157 (1996))). Accordingly, we modify the joint custody
arrangement as follows. During the school year, Mother will have primary
physical custody of Son. Father will have visitation with Son every other weekend
from Thursday after school until Sunday at 4 p.m. Father's weekends are to
coincide with his visitation with his other children to allow Son the opportunity to
spend quality time with his siblings. As to decision-making, Mother and Father
shall work together to make all major decisions for Son. If Mother and Father are
unable to agree on a major decision, Mother shall have final decision-making
authority on all matters, including issues involving education, health, religion,
extracurricular activities, etc. Father shall have full access to Son's medical care,
which shall include but not be limited to, appointments, prescriptions, medical
providers, pharmacies, and records. Likewise, Father shall have full access to
1
"Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings." Stone v. Thompson, 428 S.C. 79, 91, 833
S.E.2d 266, 272 (2019).
Son's educational development, which shall include but not be limited to, access to
records, full access to the school, educators, schedules, report cards, and activities.
Father is entitled to full access to all records, appointments, and activities of Son as
set out above without interference by Mother. Further, both parties shall be
allowed to attend any school and extracurricular activities of Son.
2. We find the family court erred in calculating child support because it failed to
include all of Father's income in its calculation. See S.C. Code Ann. Regs.
114-4720(4) (Supp. 2020) (providing that when a parent who pays child support is
self-employed, "gross income is defined as gross receipts minus ordinary and
necessary expenses required for self-employment or business operation, including
employer's share of FICA. . . . In general, the court should carefully review
income and expenses from self-employment or operation of a business to
determine actual levels of gross income available to the parent to satisfy a child
support obligation. As may be apparent, this amount may differ from the
determination of business income for tax purposes" (emphasis added)).
Accordingly, we reverse and remand the matter to the family court to recalculate
child support to include all of Father's income reported in his Schedule K-1 and in
accordance with the modifications to the joint custody arrangement as set forth
above. Additionally, the family court will reapportion between the parties the
responsibility for non-covered medical expenses in accordance with the new child
support calculation.
3. We find the family court did not err in awarding an alternating dependent tax
exemption between the parties. See S.C. Code Ann. § 20-3-130(F) (2014) ("The
Family Court may allocate the right to claim dependency exemptions pursuant to
the Internal Revenue Code and under corresponding state tax provisions . . . .");
Hudson v. Hudson, 340 S.C. 198, 204–05, 530 S.E.2d 400, 403–04 (Ct. App. 2000)
(holding that the family court may allocate a dependent tax exemption to the
noncustodial parent). Based upon our review of the record, we find alternating the
tax exemption between the parties is equitable. Accordingly, we affirm the family
court on this issue. See Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652
(2011) ("The family court is a court of equity."); Engle v. Engle, 343 S.C. 444,
447, 454, 539 S.E.2d 712, 713, 717 (Ct. App. 2000) (affirming the family court's
award of the dependent tax exemption to the noncustodial father when the family
court reasoned the father earned the greater income and would benefit most from
the exemption).
4. We find the family court properly declined to find Father in contempt for the
allegations raised by Mother. See Hawkins v. Mullins, 359 S.C. 497, 501, 597
S.E.2d 897, 899 (Ct. App. 2004) ("A party may be found in contempt of court for
the willful violation of a lawful court order."); id. ("Before a party may be found in
contempt, the record must clearly and specifically show the contemptuous
conduct."). Mother filed a rule to show cause and a supporting affidavit, alleging
Father should be held in contempt for (1) failing to pay his December 2017 child
support payment pursuant to the first temporary order and (2) violating the right of
first refusal provision included in the first temporary order by sending Son to
daycare while at work.2 Although Father admitted he failed to timely pay his
December 2017 child support, we agree with the family court that Mother failed to
show this violation was willful. See id. at 503, 597 S.E.2d at 900 ("Even though a
party is found to have violated a court order, the question of whether or not to
impose sanctions remains a matter for the court's discretion."). Further, we agree
with the family court that obtaining work-related childcare for when the child is in
the custody of a working parent is not equivalent to electing to use a babysitter for
a temporary period. Accordingly, we affirm the family court on this issue.
5. Based on the foregoing, we reverse the family court's award of attorney's fees
and remand for redetermination in accordance with this opinion.3 See Ward v.
Washington, 406 S.C. 249, 257, 750 S.E.2d 105, 109 (Ct. App. 2013) (reversing
and remanding to the family court the issue of attorney's fees when this court
reversed the family court's contempt holding); Roof v. Steele, 396 S.C. 373, 390,
720 S.E.2d 910, 919 (Ct. App. 2011) (remanding the issue of attorney's fees to the
family court when reversing and remanding other matters on appeal).
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
2
At the hearing and in her appellant's brief, Mother also alleged Father had not yet
paid his October 2018 child support payment. However, Mother neither moved to
amend her rule to show cause and supporting affidavit to include the October 2018
payment nor filed an additional rule to show cause. Thus, this claim is not
properly before this court.
3
In her appellant's brief, Mother also challenges the family court's allocation of the
guardian ad litem's fees between the parties, asserting the family court erred in
failing to require that Father pay the entirety of the guardian's fees. We find
Mother abandoned this issue on appeal as she failed to include the allocation of the
guardian's fees in her stated issues on appeal and failed to cite any supportive
authority for her proposition. See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d
611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be
considered on appeal if the argument is raised in a brief but not supported by
authority.").
WILLIAMS, A.C.J., MCDONALD, J., and LOCKEMY, A.J., concur.