Court of Appeals affirms an unusual and detailed custody arrangement

Posted Friday, May 10th, 2019 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Child Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The May 8, 2019 Court of Appeals opinion in Klein v. Barrett, 427 S.C. 74 828 S.E.2d 773 (Ct. App. 2019), finds the Court of Appeals affirming a very detailed and highly unusual custody arrangement.

Kline involved a custody modification brought by (Ex-)Wife. At the time of the parties’ 2010 divorce, (Ex-)Husband had primary custody of the children with Wife having liberal visitation and both parties having the right of first refusal. It was agreed that Wife would not have to pay child support while she pursued a degree to become a certified registered nurse anesthetist (CRNA).

Initially, the parties were able to effectively co-parent. Shortly after Wife finished her degree Husband asked her to begin paying child support. At that point communication between the parties broke down and Wife filed this modification action seeking custody and child support. After trial and motions to reconsider, the family court issued an order maintaining primary physical custody with Husband but giving Wife more visitation (in an extremely detailed schedule), providing each party legal custody of particular aspects of the children’s lives, and requiring Wife to pay child support, 2/3rds of the guardian ad litem’s fee, and $10,000 of Husband’s attorney’s fees. Wife appealed and the Court of Appeals affirmed.

The physical custody arrangement ordered by the family court and affirmed by the Court of Appeals ended the previous right of first refusal but gave Wife alternating weekend visitation, starting Thursday after school and continuing until the start of school on Monday. In weeks for which Wife has weekend visitation (visitation weeks), Wife additionally has after school visitation Monday through Wednesday until 7:00 p.m. During visitation weeks, the children eat dinner with Wife. Conversely, during non-visitation weeks, Wife has after school visitation Monday through Thursday until 6:00 p.m., and the children eat dinner with Husband.

The family court believed this arrangement was the best way to relieve conflict between the parties while serving the best interests of the children. Apparently the parties’ children (a daughter age 16 and a son age 11 at the time of trial) did not like going long periods of time without seeing either parent. Both children told the clinical psychologist, who was appointed by the court to conduct a comprehensive custody evaluation, that they wished to spend more time with Wife.

On appeal Wife argued that an alternating week custody arrangement was in the children’s best interests. The Court of Appeals disagreed, specifically finding that this case presented “exceptional circumstances” justifying joint custody:

In considering the physical placement arrangement challenged by Wife, we commend the family court’s efforts to serve the needs of all parties involved. We find the court properly weighed the preferences of the children and the recommendations of the experts and guardian ad litem. The court appropriately incorporated this input into the new custody framework. Specifically, the court addressed the children’s desire to spend more time at Wife’s home during the week by extending the visitation until 7:00 p.m. on certain evenings so as to increase quality time and allow for family meals with both parents. Additionally, the court expanded the duration of Wife’s weekend visitation.


Citations omitted.

Given that Wife was also seeking joint custody, it’s not surprising that the Court of Appeals affirmed a joint custody arrangement. What is surprising is how detailed the custody arrangement is and how the family court fashioned a schedule with so many transitions between parties that no longer got along. However given that the Court of Appeals found that the underlying conflict arose when Husband asked Wife to begin paying child support upon her completion of the CRNA program (as she had agreed to do in the parties’ divorce decree) and Wife responded by informing Husband she intended to seek custody, it is hard to lay the fault for this breakdown on Husband.

The Court of Appeals further affirmed the award of $15,000 in attorney’s fees to Husband. The Court noted that Wife’s annual income was $51,969.60 greater than Husband’s, that Husband’s attorney’s fees amounted to approximately forty-four percent of his gross annual income whereas Wife’s accrued fees were equivalent to around twenty-five percent of her gross income, and that Husband obtained beneficial results. It concluded that Wife was in a superior position to bear the cost of the fees.

In requiring Wife to pay 2/3rds of the guardian’s fees the Court of Appeals noted that the family court erred in applying the Glasscock factors and should instead have applied the factors from S.C. Code § 63-3-850(B). In layman’s terms, this means that successful results are not a factor in the award of guardian’s fees. However the Court of Appeals affirmed this unequal allocation of the guardian’s fees for the same reasons it affirmed the award of attorney’s fees to Husband.

Finally, the Court of Appeals affirmed the award of child support to Husband. Given the unusual visitation schedule, the family court employed Schedule C shared custody guidelines. On appeal, Wife asserted neither party should pay child support. However given Wife’s greater income, Husband’s retention of primary physical custody, and the agreement that Wife would begin paying child support once she completed her CRNA program, the Court of Appeals affirmed the award of child support (at trial, the family court did not award Husband any retroactive child support–something Husband should have appealed). The Court of Appeals also made Wife pay 100% of the daughter’s orthodontic expense because she informed Husband via email that she would do so.

It is unclear whether Kline portends a future in which South Carolina appellate courts approve creative and detailed joint custody arrangements. It could simply be that one cannot defeat a joint custody arrangement on appeal if one is seeking a result that moves the parties even closer to 50-50 physical custody.

Klein describes a situation all too familiar to family law practitioners: one parent upsets a stable domestic situation to further an unrealistic desire to avoid paying support (or to get more support). Wife was graced by the initial moratorium on her child support obligation. Had Husband demanded child support be set based upon her earning capacity at the time of their divorce Wife would have been ordered to pay it, even if this obligation hindered her ability to obtain the credential needed to obtain a higher paying job. Yet, once Husband attempted to obtain his benefit from this bargain, Wife’s litigation strategy enabled her to avoid paying child support for another 2+ years and insured their daughter’s teenage years were spent in custody litigation. Great job family court in rewarding this intransigence.

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