Court of Appeals affirms custody determination despite claim of improper guardian investigation

Posted Friday, April 4th, 2014 by Gregory Forman
Filed under Child Custody, Equitable Distribution/Property Division, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The April 2, 2014 Court of Appeals opinion in Simcox-Adams v. Adams408 S.C. 252, 758 S.E.2d 206, (Ct. App. 2014), affirmed the family court’s award of custody to Husband despite Wife’s challenge to the guardian ad litem’s investigation and report.  It also affirmed the family court’s finding that Wife’s inheritance was transmuted into marital property.

Wife raised a number of issues regarding the guardian’s investigation and report in her appeal.  Most of these issues were picayune or unpreserved.  For example, Wife complained that the guardian did not submit his report until the final hearing, and therefore the report didn’t comply with the notice requirement of S.C. Code § 63-3-830(A)(6).  However, since she didn’t raise this objection at trial, the issue wasn’t preserved for appeal.

Wife complained about the guardian’s concern regarding the parties’ differing discipline styles.  However the guardian merely noted this concern and the court’s final order did not criticize either parents’ discipline style.  Thus this issue did not prejudice Wife.

She also complained that the guardian noted an “‘episode’ of catatonic symptoms she experienced in August 2008.”  The Court of Appeals found this an appropriate concern for the guardian to raise:

We believe it was incumbent upon the GAL to bring this situation to the family court’s attention as any relapse could affect Child’s wellbeing. Further, the GAL did not testify that Wife was likely to experience another episode or that Wife was a threat to Child. Rather, the GAL stated his only concern was if another episode happened, it could possibly put Child in danger. Moreover, the GAL accurately stated in the report that it was only a “single episode”and included Wife’s statement that there were no other episodes and it did not affect her ability to parent Child. As such, we find no basis for Wife’s allegation that the GAL was biased or attempted to improperly influence the family court in his report.

Emphasis in original.

Wife also argued that the guardian had failed to investigate two instances in which the child was allegedly endangered while in Husband’s care.  Wife alleged the Child had been thrown off the back of a jet ski while with Husband.  The guardian questioned the Child about this and the Child denied the allegation. Wife also alleged that Husband permitted the Child to drive a golf cart without supervision and Child almost ran the golf cart off the road. The guardian did not investigate this issue.  However the Court of Appeals noted that Wife presented no evidence that this actually occurred and therefore Wife could not show prejudice from any failure to investigate.

Last, Wife claimed the guardian did not conduct a balanced investigation.  The guardian met with Wife and Child in Wife’s home, but he did not interview Wife until the evening after the first day of trial.  The guardian explained that he called the number Wife provided to him several times, but she never answered, and he was unable to leave a message because her voicemail was always full.  When questioned as to why he did not meet with Wife until the first day of trial, he testified that aside from Wife’s failure to return his phone calls, he believed his observations would be more accurate closer to the final hearing. Further, he believed it would be less costly for the parties if he did not have to reinterview them should the family court grant a continuance.

The Court of Appeals found the guardian’s approach to his investigation “well-intended” but “concern[ing].”  It still affirmed the award of custody to Husband:

Regardless of these concerns, we find the family court made an independent and well-informed decision, giving appropriate and fair weight to all relevant custody  considerations. We first note Wife never objected to the sufficiency of the GAL’s investigation at the final hearing. She never attempted to request a continuance or sought to remove the GAL, despite knowing the GAL had not contacted her until the eve of the final hearing.  Other than failing to inquire about the golf cart incident, Wife failed to raise any other specific matters or issues that the GAL failed to investigate. In addition, it appears that the Wife’s failure to cooperate with the GAL by not returning phone calls and failing to communicate with the  GAL contributed to the tardiness of the GAL’s interview as well as his observations of Wife and Child.

Further, the family court was presented with other credible evidence and testimony to support its custody decision, specifically testimony from Dr. Goldsmith, who interviewed both parties and Child, and from other witnesses, who gave Husband “high marks.” The family court’s final order also lends support for our conclusion. The final order neither referenced the GAL’s findings nor stated the family court placed any reliance on the GAL’s report or investigation. Last, although Wife argues otherwise, we cannot conclude the GAL’s observations were biased or reflected overwhelmingly favorable treatment towards Husband as the GAL specifically found in his report that both Wife and Husband had close relationships with Child, demonstrated appropriate child rearing skills in their respective homes, and expressed a genuine concern for Child’s best interests. Based on the foregoing, the family court properly considered all the relevant factors and circumstances of this case when it awarded custody of Child to Husband.

Citations omitted.

Simcox-Adams demonstrates that merely complaining about a “rogue” guardian at or after trial is insufficient to prevail on appeal.  Rather one needs to demonstrate both the insufficiency of the investigation and the prejudice from that insufficiency at trial in order to have the appellate courts consider relief from any guardian defects.

Wife also appealed the portion of the final order finding her inheritance had been transmuted. During the marriage each received an inheritance worth approximately $70,000 to $80,000. Husband’s inheritance was invested into the parties’ home, which was titled in both parties’ names. Wife’s inheritance was placed into a joint account, which was titled in both of their names. Wife, however, withdrew these funds from the joint account and created a new account in her and her parents’ names after the parties filed for divorce.  The family court found Wife’s funds were marital property.  The Court of Appeals “agree[d] with the family court’s conclusion that Wife’s inheritance was marital property.”  It noted:

Wife testified the inheritance was deposited into her “separate account” and it was titled jointly only for “emergency” purposes. Husband, on the other hand, testified the parties deposited Wife’s inheritance into a joint account with the intention that the money would be the parties’ nest egg. Because it was their nest egg, Husband stated the parties agreed to only use that account when they needed additional money to pay household bills. Having heard both parties’ testimony about the nature of their inheritance, the family court found Wife’s testimony was not credible. Aware of our broad scope of review, we find the family court was in the best position to weigh each party’s testimony on this issue.

In addition to the family court’s credibility determination, we conclude the parties’ actions during their marriage demonstrate they intended the inheritance to be marital property. First, the account was titled in both parties’ names.  Second, despite the parties’ agreement to only use the account for “emergencies,” Husband testified they would occasionally use the account to pay household bills or to cover family expenses if they did not have sufficient funds in their other bank account. In our opinion, the parties’ use of Wife’s inheritance to pay household bills and family expenses demonstrates these funds were used in support of the marriage.  Further, it is reasonable to conclude Wife’s testimony that these funds would be used for emergency purposes implies these funds would be for the benefit of both parties. Third, despite Wife’s contention that it was her separate account, she transferred all of the disputed funds into a new account titled in her and her parents’ names after the parties filed for divorce. If Wife already considered the funds in this account to be her separate property, we fail to understand the necessity of transferring these funds to a new account.[1]

Finally, we believe equity dictates this result. Both parties testified they received a similarly-valued inheritance. The parties used the entirety of Husband’s inheritance to build their marital home. Wife’s inheritance, however, was set aside and used only for emergencies, such as when Wife was unemployed, with the mutual intent that it would be their “nest egg.” To deprive Husband of his share in this asset when Wife has benefitted from the use of Husband’s inheritance is unjust. Therefore, for all the foregoing reasons, we affirm the family court’s finding on this issue.

Citations omitted.

There’s been a number of recent cases in which one party treated inheritance as marital property, the other party kept his or her inheritance as separate property, and the family and appellate courts rewarded the ungenerous spouse’s ungenerosity by finding only the generous spouse’s inheritance as transmuted.  Our courts do a disservice to marriage when they reward spouses who hoard their inheritance from the other.  It’s nice to see the Husband in Simcox-Adams wasn’t disadvantaged by his generosity.


[1] I might suggest that Wife transferred these funds to prevent Husband from withdrawing them pending litigation but either Wife didn’t make this argument or the Court of Appeals didn’t note that Wife made this argument.

One thought on Court of Appeals affirms custody determination despite claim of improper guardian investigation

  1. Gary Smith says:

    Did anyone else notice that the Court of Appeals issued their opinion almost exactly 3 years after the Family Court Hearing? The opinion was also issued 5 months after oral arguments were conducted. Now that the Supreme Court is ordering Family Court Judges to dismiss cases that are 1 year old, doesn’t it seem logical that the appellate courts should be reducing the amount of time it takes to conclude an appeal?

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