Today’s South Carolina Court of Appeals opinion in McComb v. Conard, 394 S.C. 416, 715 S.E.2d 662 (Ct. App. 2011), approved the family court’s use of the relocation factors first set forth in Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004) in a case involving an initial custody determination.
McComb began when mother attempted to relocate with the parties’ then-four year old daughter from Columbia, South Carolina to Orlando, Florida. Mother filed an action seeking custody and permission to relocate; Father counterclaimed for custody and requested that the child be required to remain in South Carolina.
From the opinion, it appears that prior to this action being filed, by mutual agreement of the parties, Father had typically spent time with the child Thursday evening through Sunday morning. Father lived in Rock Hill and worked in Charlotte but exercised this visitation at property he owned in Columbia (where Mother and child lived).
Mother sought to relocate because she was eligible to teach school in Florida but not in South Carolina and because her new husband was a financial advisor in Orlando, where he owned a large home in an upper-middle class subdivision. It was Mother’s intent for the child to attend a private school within walking distance of stepfather’s home.
The family court granted Mother’s request for custody and to relocate. Father filed a motion to reconsider which the family court orally granted but then denied. The family court also ordered Father to pay some of Mother’s attorney’s fees and issued an order which restrained the parties from having Child “on an overnight basis in the presence of an adult party of the opposite sex to whom the parties are not related by blood or marriage, or any individual with whom he or she is romantically involved.”
Father appealed and the Court of Appeals affirmed. On the custody issue, the Court of Appeals rejected Father’s contention that the family court applied the now-abolished “tender years doctrine” in awarding Mother custody. See S.C. Code Ann. §63-15-10. Instead it found that the family court properly awarded Mother custody because she had been the child’s primary caretaker. The Court of Appeals further found that the relocation was acceptable because “Father has the means to travel to Florida to continue seeing Child the same amount he did when she lived in Columbia.” The Court of Appeals approved the use of the Latimer factors in resolving relocation issues in an initial custody determination. Because Mother was the prevailing party, the Court of Appeals affirmed the family court’s award of attorney’s fees.
The Court of Appeals rejected Father’s argument that the family court erred in reversing its oral ruling on his motion to reconsider, noting “[b]ecause it was an oral ruling, the family court was fully within its rights to change its decision in the written order.”
In an intriguing issue, the Court of Appeals affirmed the restraining order against overnight paramour exposure despite neither party requesting that relief in their pleadings. The Court of Appeals found that this issue had been tried by consent pursuant to Rule 15(b), SCRCP because “[i]ssues were raised during trial as to adults of the opposite sex who were not related by marriage or blood to Child being present overnight around Child.” The Court of Appeals refused to consider Father’s claim that this restraining order was improperly “broad and nonspecific” because Father failed to raise that issue in a Rule 59(e) motion to the family court before raising it on appeal.
I have previously criticized the family court for sua sponte issuing restraining orders that had not been requested by the parties. McComb might have been a nice opportunity to raise these issues had Father properly preserved them.
The sua sponte restraining order bothers me, too. Without a transcript of the trial, however, I do not have enough facts to criticize the trial or appellate court. The general rule is that the family court cannot award relief not requested in the pleadings, with two exceptions: 1) when issues are tried without objection, and 2) where the interests of a minor child are concerned.
The Court of Appeals said the issue was tried without objection, but its opinion does not say that anyone requested the restraining order. If none was requested, it seems to be a fiction to say that the issue was tried without objection if neither side understood that a restraining order was being considered by Judge Allen. You cannot try an issue without objection if no one tells you that the issue is being tried. Of course, a transcript is necessary to understand exactly what transpired.
It seems that the stronger reason for sustaining the order would be the second exception (though not cited as a sustaining reason by the Court of Appeals). If the evidence showed that the child was at risk of harm, Judge Allen had the authority to act to protect it. Again, without the transcript, we cannot analyze whether Judge Allen was justified in issuing the restraining order.
I agree with Greg’s earlier blog that broad restraining orders intended to keep members of the opposite sex away from the children are problematic. For example, one consequence of the restraining order in this case is that if the father wants to leave the child overnight in his home while he is away on business or with a female companion elsewhere, he must hire a male to stay with his daughter, not a female. I wonder if Judge Allen thought about that.