West v. West ( 2007 )

THIS OPINION HAS NO PRECEDENTIAL VALUE

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mary Denise West, Respondent,

v.

Ernest Matthew West, Appellant.

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Appeal From Lexington County
H. E. Bonnoitt, Jr., Family Court Judge

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Unpublished Opinion No. 2007-UP-555
Heard November 6, 2007 – Filed December 14, 2007   

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REVERSED

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David C. Shea and Rebecca Guental Fulmer, both of Columbia, for Appellant.

C. Vance Stricklin, Jr. and Katherine Carruth Link, both of West Columbia, for Respondent.

PER CURIAM: The family court judge granted Ernest Matthew West (Husband) and Mary Denise West (Wife) a divorce on the ground of one year continuous separation.  The judge granted Wife custody of the parties’ two minor children and granted Husband visitation rights.  In addition, the judge prohibited Husband from traveling with the children outside of the State of South Carolina during his visitation.  Husband appeals the travel restriction claiming the family court judge abused his discretion in failing to apply proper legal principles and imposing an unreasonable restriction contrary to the children’s best interests. We reverse.

FACTS

Husband and Wife were married on November 18, 1992.  The parties had two children during their marriage, a daughter, now nine years old, and a son, now six years old.  During the early years of the marriage, Wife worked as a school teacher.  When the children were born, the parties agreed Wife would stop working and stay at home with the children.

In 2002, Husband’s employer, Saftey Kleen Corporation, went bankrupt and closed its Columbia office.  The employer offered Husband a position in the company’s Dallas, Texas office.  Husband moved to Texas, and Wife remained in South Carolina with the children.  After one year in Texas, Husband moved to Miami, Florida, to pursue a new employment opportunity.

Husband’s absence put a strain on the marital relationship, and on February 23, 2004, Wife brought an action for separate maintenance, custody of the children, and child support.  Husband filed an answer and counterclaim requesting the court’s approval to reside separate and apart from Wife and seeking joint custody of the children.  At the temporary hearing, the family court judge awarded sole temporary custody of the children to Wife and awarded Husband visitation rights.  Because Husband was still living in Miami, Husband’s visitation was limited to his parents’ home in Kershaw, South Carolina.  During the separation, Husband traveled to South Carolina every other weekend to visit with the children.  Eventually, Husband purchased and moved into a home in Greenville, South Carolina, within fifteen miles of Wife and children.

At the final hearing, Wife moved to supplement her pleadings and seek a divorce on the ground of one year separation.  Additionally, Wife sought supervised visitation for Husband because of his: (1) controlling nature; (2) unstable lifestyle; (3) temper; and (4) credibility.  Further, Wife expressed concern Husband was involved in a homosexual affair and believed Husband presented a threat of harm to the children.  Husband denied the adulterous affair throughout most of the divorce litigation.  It was not until a week before the final hearing that Husband admitted he had an affair. 

Husband admitted he had not been honest about his adulterous conduct during the divorce proceedings and regretted not disclosing it earlier in the litigation.  Husband stated he came forward shortly before the hearing because he “did not want to finish whatever happens with this on an untruthful note.”  Husband stated he never had, and did not intend to have, his children around his paramour.  He also stated he had no problem with an order prohibiting him from bringing the children around his paramour. 

The judge awarded full custody of the children to Wife and granted Husband a “standard” unsupervised visitation schedule.  In addition, the judge imposed a restriction on Husband that he was not to remove the children from the State of South Carolina during the exercise of his visitation. Additionally, the judge “restrained [Husband] from exposing the children to any non-spouse romantic companion or relationship.”[1] 

Husband filed a motion seeking to alter or amend the final divorce decree to allow Husband to have visitation outside the confines of South Carolina and the award of attorney fees.  The judge denied the motion, concluding that “restricting [Husband’s] visitation to the State of South Carolina is reasonable and protects the . . . children.”  This appeal followed.[2]

STANDARD OF REVIEW

In appeals from the family court, the appellate court has the authority to correct errors of law and to find facts in accordance with its own view of the preponderance of the evidence.  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Miller v. Miller, 299 S.C. 307, 311, 384 S.E.2d 715, 717 (1989).  However, this broad scope of review does not require this court to disregard the family court’s findings.  Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149 (Ct. App. 2005).  Nor must we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003). 

LAW/ANALYSIS

Husband claims the family court judge erred in imposing a travel restriction on his visitation because it was based solely on the judge’s moral condemnation of Husband’s lifestyle absent any evidence his conduct adversely affected the welfare of his children.[3] We agree. 

When awarding visitation, the paramount consideration is the welfare of the child.  Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996).  A parent’s morality, while a proper factor for consideration, is limited in its force to what relevancy it has, either directly or indirectly to the welfare of the child.  Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975); Stroman v. Williams, 291 S.C. 376, 378, 353 S.E.2d 704, 705 (Ct. App. 1987).  In Stroman, this court recognized homosexuality, in and of itself, is not a bar to custody or reasonable rights of visitation.  Stroman, 291 S.C. at 379, 353 S.E.2d at 706 (citing Marriage of Cabalquinto, 100 Wash.2d 325, 669 P.2d 886 (1983)).  Nor are a parent’s sexual indiscretions a proper consideration unless they are shown to adversely affect the welfare of the child.  Id. (citing Guinan v. Guinan, 102 A.D.2d 963, 477 N.Y.S.2d 830) (1984)).  In Judge Sanders’ concurrence he explained: “No moral judgment by us has been necessary because there is no evidence that [the parent’s] lifestyle had any relevancy to the welfare of the child.”  Id. at 381, 353 S.E.2d 706-07 (C.J. Sanders concurring).  Furthermore, while the issue of visitation rests largely within the discretion of the trial judge, visitation is not to be used to penalize or reward a parent for his or her conduct.  Stroman, 291 S.C. at 378, 353 S.E.2d at 705.  We are bound by this court’s prior precedent.

In deciding to impose restrictions on Husband’s visitation, the judge “[felt] it necessary to impose specific restrictions related to the [Husband’s] actions” because he did not condone Husband’s alternative lifestyle.  The judge acknowledged the travel restriction was an “unusual restriction, . . . based on the [Husband’s] self-indulgent and deviant lifestyle” but “necessary to protect the morality of the children.”  The judge further iterated:

The [Husband] chose an inappropriate relationship over his marriage.  He admitted that he undertook a covenant with his wife and with a higher power which was broken.  Based on his willingness to break this covenant and pursue an adulterous relationship . . . [Husband’s] visitation should be confined to the State of South Carolina to protect the best interest of the minor children. 

In the denial of Husband’s motion to alter or amend, the judge provided further reasoning for the travel restriction.  The judge reasoned the proximity would encourage compliance and found Husband would be “less likely to be distracted by the pursuit of his other relationship, and as a result, the children are more likely to receive quality time with their father.”  The judge concluded, “[i]f [Husband] is allowed to take the children out of state, he is more likely to expose the children to a harmful situation including exposure to his paramour who lives out of state.” 

It is clear the judge imposed a visitation restriction based on moral considerations and his disapproval of Husband’s adulterous conduct.  We find it was proper for the judge to consider Husband’s morality as a factor in determining visitation rights.  However, this consideration must be limited to the extent it was shown to adversely impact upon the welfare of the children.  We are not asked here to condone conduct which may not be condoned by segments of society; instead, we are not only asked whether the parent has been inappropriately penalized for such conduct, but also, and more precisely, whether the children’s interaction with a biological parent may be so restricted as a consequence thereof contrary to their best interests. After a review of the evidence, we find there was no evidence that Husband’s conduct endangered or adversely affected the welfare of the children.

In this case the appointed Guardian ad Litem (GAL) submitted a written report and testified at the hearing.  In her report, the GAL expressed concern with Husband’s lack of candor concerning his sexuality, but found no evidence Husband had the children around any paramour or subjected the children to an alternative lifestyle.  Further, the GAL stated “I have found no reason to believe that [Husband] has ever done anything to the children that would place them in danger or that that he would do so in the future.”  She concluded, “I believe it would be in the best interest of the children that the children have contact with both parents on a regular basis … [and] I believe it is in the best interest of the children that both parents have time alone with the children.”  At the hearing, the GAL stated she saw no reason to limit Husband’s visitation and found nothing to indicate the children would be at risk if Husband traveled with the children out of South Carolina.    

Dr. Watson, the expert clinical psychologist appointed by the court to determine whether Husband was a danger to his children, also testified at the hearing. Dr. Watson testified Husband was not a threat to his children and did not need to be supervised around his children.  He acknowledged Husband’s deception and expressed some concern, but did not believe Husband’s lying presented a threat of harm to the children.  Dr. Watson did not recommend supervision for the Husband.   

Moreover, the judge’s initial evaluation specifically found no evidence Husband exposed the children to the relationship, encouraged the children to pursue “a deviant or alternative lifestyle,” or that his lifestyle would lead to “other conduct detrimental to the children.”

Wife contends the restriction was not imposed as a penalty for Husband’s adulterous affair, but was based on the judge’s concern for the welfare of the children.  Wife avers the judge grounded his restriction on genuine concerns of Husband’s character and behavior, including his controlling nature, unstable lifestyle, temper, and lack of credibility.  She argues these concerns were apart from his adulterous conduct. 

In determining visitation in the final divorce decree, the judge specifically addressed each of Wife’s concerns about Husband’s character and behavior.  The judge concluded the evidence of Husband’s controlling nature, unstable lifestyle, temper, or lack of credibility did not rise to the level of requiring supervised visitation.  Accordingly, the judge found no reason to require supervised visitation and thereby granted Husband a “standard” unsupervised visitation schedule.  Clearly, the judge did not find sufficient evidence that Husband’s character or conduct raised sufficient concern for the welfare of the children such as to require supervised visitation.  Even as to Husband’s untimely disclosure of his conduct,  the trial judge found that while Husband had been untruthful throughout the litigation and had created an atmosphere of distrust, visitation should not be used to reward or penalize a parent.  Thus, we find these aspects of Husband’s character were of concern only insofar as they related to the fear that Husband’s conduct would endanger the children.  It is apparent that, but for Husband’s prior sexual misconduct, the judge would not have concluded the children needed “protection.”  The record simply does not support Wife’s argument the travel restriction was based on genuine concerns about Husband’s character and behavior, apart from his adulterous conduct.

CONCLUSION

Based on this court’s prior precedent, we respectfully conclude the judge improperly imposed a travel restriction on Husband’s visitation with his children.  Absent any evidence that Husband’s adulterous conduct endangered or adversely impacted the welfare of his children, we hold the judge impermissibly penalized Husband for his conduct and that it is not in the best interests of the children to uphold the travel restriction.  Accordingly, we reverse the travel restriction on Husband’s visitation.  In light of our disposition, we need not address Husband’s remaining issues.  See Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340-41, 428 S.E.2d 886, 889 (1993) (appellate court need not address a remaining issue when resolution of prior issue is dispositive).   

REVERSED.

HUFF and PIEPER, JJ., and CURETON, AJ., concur.

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[1] Although the appointed Guardian ad Litem recommended both parents be enjoined and restrained from bringing overnight guests with whom he or she is having a romantic relationship when the children are present, the judge only imposed this restriction on Husband. 

[2] The only issue on appeal is the travel restriction imposed on Husband’s visitation. 

[3] Husband claims, in his reply brief, that the travel restriction is materially distinct from the supervised visitation requested by Wife in her complaint.  Husband contends the judge erred in awarding relief not contemplated by the pleadings.  We find this argument is not preserved for our review.  First, it was not raised to the family court judge during the trial or in Husband’s motion to alter or amend.  See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (holding that issues must be raised and ruled upon in the trial court to be preserved for appellate review).  Additionally, Husband raised the argument for the first time in his reply brief.  See Crawford v. Henderson, 356 S.C. 389, 409, 589 S.E.2d 204, 215 (Ct. App. 2003) (finding appellant could not raise additional arguments in reply brief because it was not addressed in initial brief).