Court of Appeals reverses family court’s modification of joint custody

Posted Tuesday, February 14th, 2023 by Gregory Forman
Filed under Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The February 10, 2023, Court of Appeals opinion in Grungo-Smith v. Grungo, 438 S.C. 508, 884 S.E.2d 219 (Ct. App. 2023), reversed the family court’s modification of the prior joint custody arrangement.

In Grungo-Smith, at the time of the parties’ 2012 divorce, the family court approved their agreement to share joint custody of Children; specifically, a 5-2-2-5 schedule. The divorce decree provided, among other things, that (1) if one parent had Children for more than fifty percent of the time, the other parent would “contribute to the support and maintenance of Children”; (2) Children would be enrolled in any private school agreed to by each party; and (3) each party would abstain from using profanity or making derogatory comments about the other party and ensure others would not make such comments in Children’s presence.

In subsequent years, Mother began taking on more of the custodial responsibilities.  She moved five or six times but each time to a house that was either larger or closer to the Children’s school and she claimed it was never more than a 35-minute drive (assuming no traffic) from Father’s home.  She also took on primary responsibility for the Children’s education and unilaterally selected their school.  Meanwhile, Father stopped exercising some of his weekday overnights due to work responsibilities or concerns over traffic.

In 2019, Mother filed a modification case seeking sole custody and Father counterclaimed for same.  At trial there were concerns over each parent.   Mother appeared to have coached the Children on how to interact with the guardian.  The Children reported to the guardian frequent arguing between Mother and Stepfather.  The guardian reported the Children being more relaxed at Father’s home and they appeared nervous and uptight at Mother’s home, requesting that the guardian interview them in their bedrooms and whispering so that Mother and Stepfather couldn’t hear them.  At trial numerous witnesses testified as to Mother’s good parenting.  Meanwhile Father acknowledged he chose not to exercise some of his visitation, did not object when Mother selected the Children’s school, and credited Mother with the Children’s academic success. Despite his deviation from 50/50 custody, he provided Mother only $1,200 in support.

Given the conflicting testimony, the family court asked the guardian to make a custody recommendation. The guardian stated she believed Father would be the better suited custodial parent based on the information provided by Children.  The family court awarded custody to Father and Mother appealed.

The Court of Appeals reversed the change of custody to Father but did not award Mother custody.  It found that neither party had shown a substantial change of circumstances.  In so holding it noted:

During trial, Father admitted, among other things, that: he failed to take advantage of his shared visitation blaming his failure on his work schedule and traffic; he never had Children in his care for more than fifty percent of the time and failed to provide for them financially pursuant to the joint custody agreement; he did not take Children to school because it interfered with his work schedule, yet acknowledged he could have taken Children to school earlier or modified his work hours; neither Mother nor Stepfather prevented him from exercising his custody time and he praised Children’s academic success and credited Mother for it; and the divorce decree did not prevent either party from moving, he never tried to enforce the school provision, and the divorce decree required the parties to share Children’s expenses equally.

On the other hand, the evidence and testimony demonstrate that Children behaved well and excelled physically, mentally, socially, and academically while under Mother’s predominant care while she worked two jobs, working during the weekdays, every other weekend, and remotely at night after Children went to sleep. She moved five or six times to a larger home or closer to Children’s school. Several witnesses, including Children’s former school administrator, testified Children were well-adjusted, great kids, Mother was a good mom, and Children’s academic success was due in part to Mother’s involvement in their education.

The Court of Appeals also expressed “concern with the family court requesting a recommendation from the Guardian because it should have only requested a recommendation in extraordinary circumstances, which were not present in this case. We are also concerned with the family court’s heavy reliance on the Guardian’s report and testimony in its findings because a family court should determine the best interests of Children after considering all the evidence presented at trial.”

Yet the Court of Appeals refused to award Mother sole custody:

While the testimony and evidence demonstrate that Children excelled under Mother’s predominant care, it also demonstrates that Father was a factor in this success and a positive influence. Witnesses testified that Father was a good dad and saw Children at least once or twice a week; he took Children to dinner and spent time with them every other weekend; he demonstrated proactive effort to spend time with Children and participate in their lives; he withheld any disparaging remarks about Mother or Stepfather; and evidence from the Guardian indicated Father created a peaceful atmosphere where Children felt comfortable. Therefore, based upon the ample evidence demonstrating Children’s emotional, social, and academic success under the original joint custody agreement, both parties failed to demonstrate a substantial change in circumstances or that the best interests of Children would be served by a change in custody.

I believe Grungo-Smith demonstrates the difference between the current de novo review and the pre-Lewis abuse of discretion review.  The facts presented in Grungo-Smith appear to support an award of primary custody to either parent and (I believe) there were clearly unanticipated changes of circumstances from the parties’ 2012 divorce: Mother taking on the majority of custodial caretaking and educational responsibility favoring custody to Mother; the children’s significantly greater comfort with Father favoring his custody claim.  Under an abuse of discretion standard, an appellate court would have likely affirmed any reasonable modification of custody. Under de novo review, the Court of Appeals found no substantial change.

Grungo-Smith was published on a Friday. This is noteworthy as (other than cases in the Supreme Court’s original jurisdiction) South Carolina appellate court opinions have always been published on Wednesdays.  Perhaps a Friday publication is the Court of Appeals’ response to a November 17, 2022, Supreme Court order expediting child custody appeals.  If so, we can expect subsequent published custody decisions to issue on random weekdays.

One thought on Court of Appeals reverses family court’s modification of joint custody

  1. Jo'El Grungo says:

    Honestly after reading this it mentioned how my mom moved 6 times into a bigger house/closer to school, I hope she mentioned how many schools I was enrolled in. I never stayed in the same school for an entire year (with the exception of 2nd Grade) and I never went to the same school for a consecutive year (I went to a different school every grade level, sometimes back to the same school in later years). I also noticed how one of my “former school administrators” mentioned how good I was in school, I would not be surprised if it was my former principles, Mr. and Mrs. Wilfong when we went out to get burgers with them out of the blue. I also want to make it clear that my academic success was my choice not my mothers. I love both of my parents and now that I am getting older I find it silly to waste thousands of dollars trying to fix something that will be irrelevant in about 2-3 years.

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