In the May 30, 2012 opinion in Tillman v. Oakes, 398 S.C. 245, 728 S.E.2d 45 (Ct. App. 2012), the South Carolina Court of Appeals reversed and remanded the family court’s custody modification because the family court made inadequate factual findings to justify a substantial change of circumstances.
Father filed this custody modification case involving the parties’ two sons (Jack, born in 1993, and Peter, born in 1999) alleging “substantial problems in scheduling visitation and in communication between the parties” and unnamed “other issues.” At trial the family court awarded Father custody of Peter and awarded Mother set visitation while leaving Jack with Mother. Mother appealed.
The Court of Appeals found the “family court’s order is unclear as to the factual findings which support its conclusion that [Father] proved a substantial change in circumstances that affected Peter’s welfare.” It highlighted the factual findings in the family court order that addressed custody as follows:
1. Communications between the parents “diminished to the point that there is no personal mutual acknowledgement [sic] or mutual respect between the parents and stepparent to the extent that proper parenting under the joint custody Order is no longer effective.
2. [Father] “remarried and relocated and has a suitable and proper home.”
3. Jack is a full-time resident at Governor’s School
4. “[T]he children are now older.”
5. “There has been at least one incident of excessive corporal punishment” of Peter by [Mother].
6. “There have been incidents of physical altercations between” [Mother] and Peter.
7. The parents “disparaged each other to the children and have improperly exposed the children to their parental difficulties and conflicts.”
8. [Mother] “refused to cooperate with” [Father] “or discuss with him significant issues of concern pertaining to the children.”
9. [Mother] and Jack “both have interests in drama and theatre. Peter on the other hand is more into math and science . . . .”
10. “Peter has mainly expressed an interest in being with his father.”
The Court of Appeals noted “[t]hese findings, viewed as a whole, do not amount to ‘a substantial change in circumstances affecting the welfare of the child’ or a showing that the ‘change in custody is in the overall best interests of the child.’” The court proceeded to discuss some of these factual findings in greater detail. Noteworthy is its holding that Mother’s two physical altercations with Peter [which apparently were provoked by Peter’s aggressive misbehavior] were not, by themselves, a reason to change custody, with the court stating:
Occasional misbehavior of this type is normal for a child of Peter’s age. Though we do not condone [Mother’s] responses, no parent can be held to the unattainable standard of making a perfect response to the misbehavior of a child every time.
Also noteworthy was the court’s opinion that “the preference of a ten-year-old on the important issue of a change in custody to be of little value, if any.”
Rather than making a custody decision from the record, the Court of Appeals decided to remand the issue for new trial. There were two reasons for doing so: a need to address concerns raised by the Father after the filing of the appeal and the vagueness of the family court’s final order. As discussed by the Court of Appeals:
[T]he order contains several vague references to such things as “some serious issues” and “significant issues of concern.” There is no explanation of what those “issues” are, which parent is responsible for their development, or how they affect Peter’s welfare. At oral argument, this court addressed its concern that some unwritten factor forms a substantial basis for the family court’s decision. The responses from both counsel served only to increase our concern, and we believe the entire basis of the lower court’s decision is not reflected in its order. The court’s order begins its recitation of changes in circumstances by stating, “there have been a number of material changes in circumstances . . . [which] include but are not limited to . . . .” Rule 26(a) [SCRFC] requires that the family court set forth all of the findings of fact that support its decision. By relying on unnamed “serious” issues “of concern” and by failing to set forth all “material” changes in circumstances, the order violates Rule 26(a).
Further, the Court of Appeals was:
troubled by what is alleged to have happened since the family court’s order. During the appeal, [Father] filed a petition with the family court, and later with this court, in which he made serious allegations against [Mother] regarding her care for Peter during his visitation with her. The petition requests suspension of [Mother’s] visitation rights. We are unable to determine whether these accusations are true, or are simply the next incident in this father and mother’s longstanding pattern of using accusations against each other to further their interests regarding the children and using the children to make their attacks against each other more effective. … Recognizing this, we find it necessary for these allegations to be presented to and considered by the family court.
Thus it remanded the matter for a new trial in which “the family court is to consider all facts and circumstances up to the time of the new trial.”
The Tillman opinion also provides guidance on the interplay between the rule regarding the automatic stay on appeal and the rule granting the appellate courts exclusive jurisdiction over all matters in the appeal. During the pendency of this appeal Father petitioned the family court, and then the Court of Appeals, to suspend Mother’s visitation with Peter. The family court first denied this petition because Father had not sought to lift the automatic stay and then denied Father’s petition to lift the automatic stay because it believed that issue was best addressed by the Court of Appeals.
Father’s petition to suspend visitation dealt with an issue falling outside of the automatic stay provisions regarding appeal. Rule 241(b)(6), SCACR specifically excludes the order appealed in this case from the general rule, listing “[f]amily court orders regarding a child” as an exception to the automatic stay provision of Rule 241(a), SCACR. Therefore, Father did not need relief from the automatic stay to have his petition considered.
However the Court of Appeals also needed to consider whether the family court had jurisdiction to consider Father’s petition. The Court of Appeals began its analysis as follows:
Rule 205, SCACR provides: “Upon the service of the notice of appeal, the appellate court shall have exclusive jurisdiction over the appeal . . . .” Under Rule 205, the lower court is deprived of the power to proceed with matters that are affected by the appeal, but is specifically allowed to proceed with matters not affected by the appeal. The rule states: “Nothing in these Rules shall prohibit the lower court . . . from proceeding with matters not affected by the appeal.” Rule 205, SCACR; see also Rule 241(a), SCACR (“The lower court . . . retains jurisdiction over matters not affected by the appeal . . . .”). Thus, the existence or nonexistence of a stay under Rule 241 does not control the family court’s power to proceed with the action and address matters not affected by the appeal. Rather, the lower court’s power to proceed is determined by whether the issue sought to be litigated in the lower court during the appeal is a “matter affected by the appeal” under Rules 205 and 241(a).
The Court of Appeals then determined that Father’s petition was not an issue affected by the appeal and that the family court should have ruled on Father’s petition:
The order on appeal in this case changed custody from [Mother] to [Father] and established [Mother’s] visitation rights. [Father’s] petition relates to [Mother’s] visitation rights. It would appear at first, therefore, that the appeal affected [Mother’s] visitation rights, and the family court did not retain the power to proceed. However, answering the question of whether a matter is “affected by the appeal” requires a closer examination of the appeal. [Mother] challenges only the custody portion of the order in her appeal. In fact, understanding she lost primary custody, [Mother] is actually the beneficiary of the visitation provisions in the order. [Father] did not file an appeal. Thus, there is no action the appellate courts could take resolving this appeal that would affect the visitation established in the appealed order, except to reverse the custody determination, in which case [Mother] would not need visitation.
Moreover, the petition did not seek relitigation of any factual findings in the order on appeal. The appealed order made a permanent change of custody and established permanent visitation rights based on changes in circumstances occurring before the order. [Father’s] petition requested a temporary suspension of [Mother’s] visitation based exclusively on events occurring after the order.
Under these circumstances, [Father’s] petition addressed a “matter not affected by the appeal.” Therefore, the family court retained the power to rule on [Father’s] petition.
For attorneys who handle appeals of family court orders, the Court of Appeals’ analysis of this issue is very helpful. Given how long appeals take to resolve there are often substantial changes of circumstances pending the appeal and the law is unclear on the procedural methods of addressing these changes. However it is hard to see that Father’s petition to suspend Mother’s visitation would not affect that appeal. If the family court had decided to suspend Mother’s visitation but the Court of Appeals decided to award custody to Mother, whose order would be in effect? The Court of Appeals order because it is a higher court? The family court order because it was based on a subsequent change of circumstances?
I have typically found the safest option to procedurally address subsequent changes of circumstances is to seek leave in the appellate court to file that request with the family court. Except for situations in which it is clear that the appeal and the modification request deal with completely different issues, nothing in the Tillman opinion makes me comfortable filing a modification request directly with the family court when the case is on appeal.