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Court of Appeals custody opinion further demonstrates the changed jurisprudence of post-Lewis appellate review of family court decisions

Reed v. Pieper, 393 S.C. 424, 713 S.E.2d 309 (Ct. App. 2011), is the second of two June 1, 2011 Court of Appeals opinions to demonstrate how the de novo factual finding review of family court decisions, mandated by the May 9, 2011 Supreme Court decision in Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), is remaking family law appellate jurisprudence.

Reed stemmed from Mother’s appeal of a family court decision awarding Father custody of their five year old son.  Father filed this custody action shortly after the child’s birth.  A temporary order provided for joint custody with Father paying child support.  During the litigation the parties appear to have reconciled and separated on at least one occasion–apparently unaware of the old-time family court judges’ admonition against “litigatin’ in the morning while fornicatin’ in the evening.”  At trial, the family court judge award primary custody to Father and Mother appealed.  The Court of Appeals, in a 2-1 decision, affirmed the lower court’s custody determination.

The majority opinion and Judge Short’s dissent reached opposing factual determinations on a number of important issues.  Judge Short found Mother had been the primary caretaker of the child; the majority did not.  Judge Short found that Father had manipulated Mother’s own Mother into providing an affidavit raising concerns about Mother’s mental health; the majority found Father had done nothing wrong in obtaining that affidavit.  Judge Short found Father to be manipulative and controlling and cited evidence from court appointed psychological evaluator that “Father required Mother submit to his control;” the majority did not find Father to be manipulative.  Judge Short found Father’s “promiscuous” behavior (Father has children with three women, and in September 2008, he married a pregnant 27-year-old woman) to be a relevant factor in deciding custody; the majority did not see this promiscuity as relevant, claiming Mother had not shown to this behavior be detrimental to the welfare of the child and further that Mother’s own relationship with Father was part of this pattern of promiscuity.

I cannot tell from reading the Reed opinion whether the majority or dissent’s position more accurately reflects the factual record from trial but I find their debate fascinating.  Pre-Lewis, one rarely saw opinions from family court appeals engaging in substantial debates regarding the underlying facts. Post-Lewis, I expect to see many such debates in appellate court opinions.

 

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