THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Shaundra B. Daily, Respondent/Appellant,
v.
Julian D. Daily, Appellant/Respondent.
Appellate Case No. 2017-001199
Appeal From Pickens County
Karen S. Roper, Family Court Judge
Opinion No. 5801
Heard November 6, 2019 – Filed February 10, 2021
AFFIRMED AS MODIFIED
Nicole Nicolette Mace, of The Law Offices of Curt
Sanchez, P.A., of West Palm Beach, Florida, for
Appellant-Respondent.
Edward Delane Rosemond, of The Rosemond Law Firm,
PA, and Kimberly Welchel Pease, of Kimberly R.
Welchel, Attorney at Law, both of Seneca, both for
Respondent-Appellant.
Floy Kenyon Anderson, of Kenyon Lusk & Anderson, of
Anderson, Guardian ad Litem, pro se.
WILLIAMS, J.: In this cross-appeal from the family court, Julian D. Daily
(Father) argues the family court erred in (1) awarding Shaundra Bryant Daily
(Mother) sole custody of the parties' two minor daughters following her relocation
to Florida, (2) setting the parallel parenting plan and his visitation, (3) finding him
in contempt, and (4) ordering him to pay a portion of Mother's attorney's fees and
one-half of the guardian ad litem's (GAL) fees. Mother argues the family court
erred in failing to order Father to pay the full amount of her attorney's fees. We
affirm as modified.
FACTS/PROCEDURAL HISTORY
Father and Mother (Parents) married in 2004, and they had two daughters: LGD
and ZMD (collectively, Daughters), born in 2006 and 2009. Parents both filed for
divorce on January 6, 2012, and subsequently reached an agreement resolving all
matters in the divorce. On March 25, 2013, the family court issued an order
granting Parents a divorce and adopting their agreement (Divorce Decree). Under
the Divorce Decree, Parents had joint custody and Daughters were placed with
Mother during the school year; Father had visitation alternating weekends,
holidays, and the summer. After the divorce, Mother lived in Pickens, South
Carolina, and Father lived in Atlanta, Georgia.
In 2015, Mother filed a complaint requesting permission to relocate to Gainesville,
Florida; child support; attorney's fees and costs; and modification of Father's
visitation. Mother, a professor, wanted to move because she received a job offer
from the University of Florida. Father filed an answer and counterclaim,
requesting dismissal of Mother's complaint and seeking full custody of Daughters
or, alternatively, joint custody with primary placement. The family court issued a
temporary order on March 26, 2015, (1) holding Parents would remain subject to
the provisions of the Divorce Decree, (2) requiring Parents attend mediation, and
(3) ordering a hearing in the event mediation was unsuccessful. The order also
appointed a GAL and established the GAL's hourly rate and a fee cap of $3,500.
On August 25, 2015, the family court issued a second temporary order (Temporary
Order), which allowed Mother to relocate to Gainesville with Daughters. The
court found the move was in Daughters' best interest and consistent with Latimer v.
Farmer.1 The Temporary Order gave Father visitation and ordered him to pay
child support. Father subsequently moved from Atlanta to Cincinnati, Ohio,
without informing Mother or the GAL until after he moved.
Shortly before the final hearing scheduled for June 2016, the family court ordered
Father to undergo a psychological evaluation (Evaluation Order) pursuant to
Mother's request. The court rescheduled the hearing. Father did not undergo the
1
360 S.C. 375, 602 S.E.2d 32 (2004).
evaluation. Parents also filed multiple rules to show cause, which were
consolidated and considered at the final hearing.
On March 13, 2017, the family court issued a final order (Final Order) granting
Mother sole custody. The family court found the joint custodial arrangement was
no longer in Daughters' best interest and awarded visitation to the Father. It also
instituted a "Parallel Parenting Plan" (Parenting Plan) and required Parents to
communicate exclusively through Our Family Wizard2 (OFW) absent an
emergency. The Parenting Plan also contained a restraining order prohibiting
Parents from coming within fifteen feet of each other or having any physical or
verbal confrontation.
The family court additionally found Father failed to prove contempt by Mother but
found Father in contempt for willfully violating the Divorce Decree and the
Evaluation Order. The family court ordered Father to compensate Mother for
enforcing the orders and fined him $1,500 for disobeying the Evaluation Order.
The court also awarded Mother $5,400 in attorney's fees—which included the
compensatory contempt award—and ordered Parents to each pay one half of the
GAL's fees.
Parents both filed motions to reconsider. The family court denied Father's motion
and partially granted Mother's motion as to summer visitation.3 This appeal
followed.
ISSUES ON APPEAL
I. Did the family court err in awarding Mother sole custody?
II. Did the family court err in setting the Parenting Plan and Father's visitation?
III. Did the family court err in finding Father in contempt for violating the
Divorce Decree and the Evaluation Order?
2
Our Family Wizard is a digital program for divorced parents to use to
communicate with each other and schedule their children's activities.
3
In partially granting Mother's motion to reconsider, the family court also
corrected typographical errors and made minor changes to the visitation exchange
provision.
IV. Did the family court err in ordering Father to pay $5,400 of Mother's
attorney's fees?
V. Did the family court err in ordering Father to pay half of the GAL's fees?
STANDARD OF REVIEW
On appeal from the family court, the appellate court reviews factual and legal
issues de novo. Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)
(per curiam). Thus, the appellate court has the authority to find facts in accordance
with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C.
381, 384, 709 S.E.2d 650, 651 (2011). However, this broad scope of review does
not require the appellate court to disregard the fact that the family court, which saw
and heard the witnesses, was in a better position to evaluate their credibility and
assign comparative weight to their testimony. Id. at 385, 392, 709 S.E.2d at
651–62, 655. Therefore, the appellant bears the burden of convincing the appellate
court that the family court committed an error or that the preponderance of the
evidence is against the family court's findings. Id. at 392, 709 S.E.2d at 655.
LAW/ANALYSIS
I. Custody
Father asserts the family court erred in awarding Mother sole custody of
Daughters. We disagree.
The controlling considerations in all child custody controversies are the child's
welfare and best interest. Divine v. Robbins, 385 S.C. 23, 32, 683 S.E.2d 286, 291
(Ct. App. 2009); see also S.C. Code Ann. § 63-15-230(A) (Supp. 2020) ("The
court shall make the final custody determination in the best interest of the child
based upon the evidence presented."). "[A] determination of the best interest of the
children is an inherently case-specific and fact-specific inquiry." McComb v.
Conard, 394 S.C. 416, 423, 715 S.E.2d 662, 665 (Ct. App. 2011) (alteration in
original) (quoting Rice v. Rice, 335 S.C. 449, 458, 517 S.E.2d 220, 225 (Ct. App.
1999)). It is also appropriate to consider the opinions of third parties, including the
GAL and expert witnesses. Brown v. Brown, 412 S.C. 225, 239, 771 S.E.2d 649,
656 (Ct. App. 2015).
Determination of the child's best interest requires consideration of the "character,
fitness, attitude, and inclinations on the part of each parent as they impact the
child" as well as the "psychological, physical, environmental, spiritual,
educational, medical, family, emotional[,] and recreational aspects of the child's
life." Woodall v. Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996). Subsection
63-15-240(B) of the South Carolina Code (Supp. 2020) provides additional factors
to consider.
"When a party seeks to alter a joint custody arrangement, the party has the burden
of establishing a material change of circumstances substantially affecting the
child's welfare." Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 359 (Ct.
App. 1999). "Such a change in circumstances simply means that sufficient facts
have been shown to conclude that the best interests of the child would be served by
the change." Id.
Cases involving the relocation of a custodial parent are some "of the most
challenging problems our family courts encounter." See Latimer v. Farmer, 360
S.C. 375, 380, 602 S.E.2d 32, 34 (2004). "The effect of relocation on the child's
best interest is highly fact specific. It should not be assumed that merely relocating
and potentially burdening the non-custodial parent's visitation rights always
negatively affects the child's best interests." Id. at 382, 602 S.E.2d at 35.
"Relocation is one factor in considering a change in circumstances, but is not alone
a sufficient change in circumstances." Walrath v. Pope, 384 S.C. 101, 106, 681
S.E.2d 602, 605 (Ct. App. 2009) (quoting Latimer, 360 S.C. at 382, 602 S.E.2d at
35).
Our supreme court, without endorsing or enumerating a specific test, has
highlighted relevant factors other states consider when confronted with parental
relocation. Latimer, 360 S.C. at 382–83, 602 S.E.2d at 35–36. These factors are:
(1) the economic, emotional, and educational advantages of the move; (2) the
child's relationship with both parents and the impact of the move on the non-
custodial parent's relationship with the child; (3) the availability and feasibility of a
realistic substitute visitation arrangement, including technology, that will
adequately preserve and foster the child's relationship with the non-custodial
parent; (4) each parent's motive for seeking or opposing the relocation; and (5) the
likelihood the move is not the result of a whim but would substantially improve the
quality of life for the custodial parent and child. See id.
We agree with the family court that Father's and Mother's respective relocations,
and inability to communicate and make joint decisions have necessitated Mother
having sole custody.
We have concerns regarding Father's failure to foster a positive relationship
between Mother and Daughters if Father were awarded custody. The record
indicates Daughters' communication with Mother is negatively impacted when they
are in Father's custody. For example, there were multiple instances during Father's
visitation when he failed to inform Mother of Daughters' whereabouts. Further, in
response to Mother's inquiries and questions regarding Daughters, Father would
either provide nonresponsive answers, including telling Mother to ask Daughters
directly, or would not respond at all. The GAL also expressed concern based on
her observations that Father would not encourage Daughters' relationship with
Mother. On the other hand, Mother has continuously made appropriate efforts and
encouraged the relationship between Father and Daughters. See § 63-15-240(B)(6)
("In issuing or modifying a custody order, the court must consider the best interest
of the child, which may include, but is not limited to: . . . the actions of each parent
to encourage the continuing parent-child relationship between the child and the
other parent . . . .").
We also share the family court's concern regarding Father's ability to personally
provide for Daughters. See Housand v. Housand, 333 S.C. 397, 400–02, 509
S.E.2d 827, 829–30 (Ct. App. 1998) (considering each parents' financial status and
ability to provide for the children at the time of the divorce and at the time of trial
in a change of custody action). Father testified he was an entrepreneur but was
extremely vague regarding his employment and income. The record contains no
evidence of Father's earnings from his work and reveals his stated monthly income
of $3,000 was provided by his parents (Grandparents). Grandparents also wrote
the checks for Father's child support, and the evidence indicates they financially
provide for Daughters when they are in Father's care.
We find the record supports the family court's award of sole custody to Mother and
shows Daughters were happy, healthy, and well-adjusted to their home and school
in Florida. § 63-15-240(B)(10) ("In issuing or modifying a custody order, the
court must consider the best interest of the child, which may include, but is not
limited to: . . . the child's adjustment to his or her home, school, and community
environments . . . ."). Mother's relocation to Gainesville and Father's decision to
move from Atlanta to Cincinnati impacted the parties' relationship with Daughters.
However, we find the family court's visitation schedule as modified below gives
ample opportunity to foster the relationship between Father and Daughters. See
Latimer, 360 S.C. at 385–86, 602 S.E.2d at 37 (discussing availability and
feasibility of a realistic substitute arrangement that will adequately preserve and
foster the child's relationship with the non-custodial parent, including technology);
McComb, 394 S.C. at 424, 715 S.E.2d at 666 (noting the availability of phone calls
and video chatting to help maintain the child's relationship with non-custodial
parent).
Based on the foregoing, we find Mother has shown a significant change of
circumstances and that it would be in the best interest of Daughters that Mother be
awarded sole custody. Dixon, 336 S.C. at 263, 519 S.E.2d at 359 ("When a party
seeks to alter a joint custody arrangement, the party has the burden of establishing
a material change of circumstances substantially affecting the child's welfare.").
Accordingly, we affirm the family court.
II. The Parenting Plan and Visitation Schedule
On appeal, Father raises several challenges to the Parenting Plan and visitation
schedule.
"As with child custody, the welfare and best interests of the child are the primary
considerations in determining visitation." Buist v. Buist, 399 S.C. 110, 122, 730
S.E.2d 879, 885 (Ct. App. 2012), aff'd as modified on other grounds, 410 S.C. 569,
766 S.E.2d 381 (2014). When determining visitation in a relocation case, the
family court should attempt to alleviate the hardships associated with parents living
in separate states as much as possible. Walrath, 384 S.C. at 108, 681 S.E.2d at 606
(noting the family court acknowledged the hardships related to parents living in
Kansas City and South Carolina and attempted to provide the children with
continuous, meaningful contact with their father).
A. Unnecessary Communication and Failure to Set Specific Dates
Father argues the family court erred in establishing a visitation schedule and
parenting plan that necessitates communication and negotiation between Parents by
requiring them to "confirm visitation" through OFW. Specifically, Father asserts
that the family court's failure to set specific dates for all of his visitation will
require Parents to negotiate visitation periods. Father contends this gives Mother
the ability to prevent Father from exercising his visitation. Because of these
defects, Father argues the current visitation schedule and parenting plan are not in
Daughters' best interest.
Under the visitation schedule, Father has visitation during Daughters' Christmas
break, Thanksgiving break, spring break, and summer break. During the school
year, Father has visitation for one long weekend in September, January, and May
(Long Weekend Visitation). The Long Weekend Visitation corresponds with
Labor Day, Martin Luther King, Jr. Day, and Memorial Day. He also has one
unspecified weekend in October, February, and April, which he is required to
exercise in Daughters' hometown (Short Weekend Visitation). Additionally, the
visitation schedule requires Father to ensure Daughters attend all previously
scheduled activities during his Short Weekend Visitation. These activities include,
but are not limited to, "extracurricular events, educational activities, church
activities, sports practices or games, social obligations, or medical appointments."
The visitation schedule and Parenting Plan require Parents to confirm visitation
periods through OFW. Parents are prohibited from scheduling, or allowing others
to schedule, elective activities for Daughters during the other parent's time with
Daughters unless the other parent provides written permission or the enrolling
parent informs Daughters that they will miss any such event, except for Father's
Short Weekend Visitation. The Parenting Plan also requires Parents to notify each
other through OFW of any important school or extracurricular events4 and
expressly allows Parents to attend regardless of who has placement of Daughters at
the time of the event.
We agree the visitation schedule and Parenting Plan in their current form present
issues for these parties who are unable to cooperate and communicate effectively
with each other. Therefore, we modify by adding additional specifics to portions
of the visitation schedule and Parenting Plan. Under the Parenting Plan, Mother is
required to advise Father of Daughters' "school enrollment for the following year
by March 1 on OFW." Upon publication of the school calendar, Mother shall
timely provide Father with the school calendar within ten days. Following the
receipt of the school calendar, Father shall notify Mother on OFW of the weekends
he intends to exercise his Short Weekend Visitation by May 1. In the event Father
chooses not to exercise his Short Weekend Visitation, or any other visitation, he
shall notify Mother no later than seven days prior to the visitation period. In
addition, we modify the visitation schedule and Parenting Plan to instruct that
Father's Long Weekend Visitation shall begin at 6:00 P.M. on the last day
Daughters attend school prior to the weekend and will end at 2:00 P.M. on the day
prior to the Daughters returning to school. Father's Short Weekend visitation will
begin at 6:00 P.M. on Friday and will end at 6:00 P.M. on Sunday.
4
Defined as, but not limited to, "baptisms, bar mitzvahs, sporting events, dance
recitals, [and] school plays."
B. Weekend Visitation
Father asserts the family court erred in ordering that he ensure Daughters attend all
scheduled activities during his Short Weekend Visitation. Father also contends
that because the Parenting Plan allows both parents to attend such activities,
Mother can effectively eliminate Father's personal time with Daughters by
scheduling and attending activities. He also argues this will create situations in
which the Parenting Plan's restraining order will be violated.
We find it is in Daughters' best interest to require Father to ensure their attendance
of all previously scheduled extracurricular activities and events during his Short
Weekend Visitation. The record shows Daughters enjoy participating in dance,
drama, and sports, and Mother only enrolls them in activities in which they are
interested. By taking Daughters to these events, Father attends to Daughters'
"psychological, physical, environmental, spiritual, educational, medical, family,
emotional and recreational" needs. See Woodall, 322 S.C. at 11, 471 S.E.2d at
157. However, we modify the Parenting Plan to require Mother to notify Father on
OFW of "important school or extracurricular events" that are known when Father
selects his weekend visitation. If Mother learns of an event after Father selects his
weekend, Mother must provide notice of the event within twenty-four hours. In
the event Father chooses not to exercise his visitation rights, he shall notify Mother
on OFW no later than seven days prior to the visitation period, or within twenty-
four hours after Mother notifies him of an event. As to the Parenting Plan's
restraining order, attendance and observation of Daughters' activities does not
necessitate Parents coming within fifteen feet of each other.
Next, Father asserts the family court erred in setting his Short Weekend Visitation
for regular weekends instead of holiday or teacher workdays in October, February,
and April. He also argues the family court erred in requiring him to exercise those
visitation weekends in Daughters' hometown. We agree in part.
Considering the distance between Parents' homes, we agree with the family court
that a standard visitation schedule would be impractical. The family court found it
was in Daughters' best interest to have less frequent exchanges to allow sufficient
time to recuperate between visits and to have some visitations with Father locally.
Therefore, the court required Father to exercise his Short Weekend Visitation in
Daughters' hometown. We find this requirement appropriate when balancing the
importance of stability with fostering Daughters' relationship with Father. Further,
the record supports this finding as Mother and the GAL expressed concern with the
effect traveling to Cincinnati for a weekend every month would have on
Daughters. See Woodall, 322 S.C. at 11, 471 S.E.2d at 157 (stating a child's best
interest is determined by considering, among others, the educational,
psychological, physical, and emotional aspects of the child's life). Thus, we find
the family court properly considered Daughters' best interest when it restricted
Father's Short Weekend Visitation to Daughters' hometown, and we affirm.
However, we agree with Father that the family court erred in limiting his Short
Weekend Visitation to two days. Based on our de novo review, the blanket
restriction of Father's Short Weekend Visitation in October, February, and April to
two days was improper because Father may choose a weekend coinciding with a
school holiday or a teacher workday. Accordingly, we modify the visitation
schedule and Parenting Plan to provide that if Father chooses such a weekend, he
shall receive the additional day as part of his Short Weekend Visitation. A Short
Weekend Visitation extended in this manner is still subject to limitations imposed
by Daughters' extracurricular activities and events.
Father also argues he should be allowed to drop Daughters off at school at the
conclusion of his Short Weekend Visitation instead of exchanging Daughters with
Mother on the last night of the weekend. We disagree. By returning to Mother the
night before school, Daughters return to a familiar environment and can recuperate
and resume their routine prior to the start of the school week. See Woodall, 322
S.C. at 11, 471 S.E.2d at 157 (stating a child's best interest is determined by
considering, among others, the educational, psychological, physical,
environmental, and emotional aspects of the child's life). Thus, we find it is in
Daughters' best interest that Father's Short Weekend Visitation end at 6:00 P.M. on
Sunday.
C. Summer Visitation
Father asserts the family court erred in modifying his summer visitation to allow
Mother additional time. He argues this modification was not in Daughters' best
interest because the family court also reduced his school year and Christmas
visitation.
Father's summer visitation originally consisted of the entirety of summer break,
except the seven days preceding the start of the school year. However, following
Mother's motion for reconsideration, the family court decreased Father's visitation
by awarding Mother six additional days in the summer. The court gave Mother the
discretion to exercise this time as a week in July or one weekend in June, July, and
August, limited similarly to Father's Short Weekend Visitation.
We find the family court's decision to modify Father's summer visitation was
proper. The record demonstrates Mother had very little contact with Daughters
during previous summer breaks and Father routinely deflected or failed to answer
Mother's questions regarding Daughters' location and well-being. The paramount
consideration is the best interest of Daughters. Considering Parents' inability to
communicate with each other, it is not in Daughters' best interest to go for a long
period without spending time with Mother.
We acknowledge the family court's efforts but find the need for additional
modifications to promote Daughters' welfare and alleviate conflicts between the
parties. Accordingly, the visitation schedule and Parenting Plan are modified as
follows. Daughters shall spend the first seven days of summer break with Mother.
In addition to this seven-day-period, Mother shall have an additional weekend with
Daughters during the summer break beginning at 6:00 P.M. on Friday and ending at
6:00 P.M. on Sunday. Mother shall notify Father on OFW of the dates for her
summer weekend by May 1. Additionally, similar to Father's Short Weekend
Visitation, Mother must ensure Daughters attend all previously scheduled
activities, such as educational activities, church activities, and sports practices or
games, during her summer weekend. Father has a similar duty to notify Mother on
OFW of any events when Mother selects her weekend or within twenty-four hours
of learning of the event. In the event Mother chooses not to exercise her summer
weekend, Mother shall notify Father seven days prior to the weekend or within
twenty-four hours for Father notifying her of an event. Father's summer visitation
shall begin at 2:00 P.M. on the eighth day of summer break and end at 6:00 P.M.
seven days prior to the first day of school. We find these changes allow Daughters
time to adjust to the beginning and end of summer break and alleviate unnecessary
stressors, such as bringing luggage to school before the break begins. Therefore,
Father's summer visitation is accordingly modified.
D. Holiday Visitation
Father asserts the family court erred in setting his Christmas visitation. We agree.
Under the current visitation schedule, Father receives every Thanksgiving holiday,
and his Christmas visitation begins at dismissal on the last day of school and ends
on December 23. Under that arrangement, there will be years when Father has
possibly only one day or less with Daughters for his Christmas visitation. It is in
Daughters' best interest to continue to spend time with both parents during the
Christmas holiday. Therefore, the visitation schedule is modified as follows.
Father will continue to have every Thanksgiving holiday. Father's Christmas
visitation will begin on December 26 at 2:00 P.M. and end on January 1 at 6:00 P.M.
Based on the foregoing, we affirm the family court's visitation schedule and
Parenting Plan as modified.
III. Contempt
Father argues the family court erred in finding him in contempt for willfully
violating the Divorce Decree and the Evaluation Order. We disagree.
"An adult who wi[l]lfully violates, neglects, or refuses to obey or perform a lawful
order of the court" may be charged with contempt. S.C. Code Ann. § 63-3-620
(Supp. 2020). "Once a moving party makes out a prima facie case of contempt by
pleading the order and showing its noncompliance, the burden shifts to the
respondent to establish his defense and inability to comply." S.C. Dep't of Soc.
Servs. v. Johnson, 386 S.C. 426, 435, 688 S.E.2d 588, 592 (Ct. App. 2009). "To
find one in contempt of court, the record must clearly reflect contemptuous
conduct." Sweeney v. Sweeney, 420 S.C. 69, 82, 800 S.E.2d 148, 155 (Ct. App.
2017); Eaddy v. Oliver, 345 S.C. 39, 43, 545 S.E.2d 830, 833–34 (Ct. App. 2001)
(finding the father's testimony established a prima facie showing of contempt and
the family court correspondingly erred in not finding the mother in contempt after
she presented no evidence to defend or explain her noncompliance). The burden of
proof for civil contempt is clear and convincing evidence, and the burden for
criminal contempt is beyond a reasonable doubt. Poston v. Poston, 331 S.C. 106,
113, 502 S.E.2d 86, 89 (1998). Civil contempt is remedial in nature and aims to
benefit the complainant, but criminal contempt is punitive and aims to vindicate
the court's authority. Id. at 111, 502 S.E.2d at 88.
A. Violation of the Divorce Decree
Father argues the family court erred in finding him in contempt for violating the
Divorce Decree. The Divorce Decree prohibited the parties from "harass[ing] or
burden[ing] the other with excessive or abusive telephone calls or any
non-productive or harassing communication." Specifically, Father asserts the
family court failed to cite the communications that violated the provision. Father
contends some of the emails Mother presented as evidence were the subject of a
previous contempt action against Father in July 2013 and by failing to cite the
contemptuous communications, it is unclear whether the family court relied on this
older evidence. We disagree.
In its Final Order, the family court noted some of the emails relevant to Mother's
testimony were previously litigated and specifically stated those emails were
excluded from consideration. As to whether the record supports the family court's
finding that Father violated this provision, we find it does. During a visitation
exchange in August 2014, Mother was late in getting Daughters to Father. For the
next two hours, Father sent Mother an email every fifteen minutes telling her how
many minutes she was late and that she was not following the court order. Mother
tried to call Father multiple times to try and resolve the issue, but he would not
answer despite continuing to send emails. This is clear and convincing evidence of
"non-productive or harassing communication." Accordingly, the family court did
not err in finding Father willfully violated the Divorce Decree, and we affirm.5 See
Poston, 331 S.C. at 113, 502 S.E.2d at 89 ("Civil contempt must be proven by
clear and convincing evidence."); Sweeney, 420 S.C. at 82, 800 S.E.2d at 155 ("To
find one in contempt of court, the record must clearly reflect contemptuous
conduct.").
B. Violation of the Evaluation Order
Father argues the family court erred in finding him in contempt for violating the
Evaluation Order because the evaluation was unnecessary and based on false and
misleading information. We disagree.
The facts underlying Father's failure to submit to a psychological examination are
not in dispute. The family court ordered Father to undergo a psychological
evaluation prior to the final hearing, and the GAL scheduled an appointment for
Father, but Father did not go to the appointment. The GAL attempted to
reschedule with multiple psychologists and informed Father of the potential
make-up appointments. Despite scheduling a make-up appointment, Father still
failed to meet with a psychologist and complete an evaluation. Although the
record indicates Father missed the first appointment because he had a flat tire and
5
Father also asserts the family court erred in relying on the GAL's testimony
concerning Father's harassing and derogatory emails because the GAL did not give
specific examples of the objectionable verbiage. Because our finding above is
dispositive, we need not address this argument. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an
appellate court need not address remaining issues when disposition of a prior issue
is dispositive).
was in Tennessee, he offered no explanation for his failure to complete the
examination at a later appointment.
We find the record supports the family court's finding of contempt. The family
court ordered Father to undergo a psychological evaluation, and he failed to
comply. Father did not present any evidence showing he was unable to comply
despite a good faith effort, and his objections to the evaluation's necessity and
validity, even if in good faith, are not an excuse. See Sweeney, 420 S.C. at 82–83,
800 S.E.2d at 155 (affirming the family court's finding of contempt because the
husband willfully violated a temporary order despite his argument that he did it
without a "bad purpose"). At the time it was issued, the Evaluation Order bore the
judicial authority of the family court and required compliance absent a stay of the
order's effect. See Jennings v. Jennings, 104 S.C. 242, 245, 88 S.E. 527, 528
(1916) ("The orders of the court, even though erroneous, must be respected and
obeyed, until vacated or modified by competent authority."). The only acceptable
reasons for not complying with the order would be appealing and obtaining a
supersedeas—which Father did not do—or being thwarted from obeying the order
despite his good-faith effort to comply—which Father has not shown. See Rule
241(c), SCACR ("The effect of the granting of a supersedeas is to suspend or stay
the matters decided in the order . . . . ."); Terry v. Terry, 400 S.C. 453, 456 & n.2,
734 S.E.2d 646, 648 & n.2 (2012) (providing the method for obtaining relief from
a family court's temporary order); Miller v. Miller, 375 S.C. 443, 454, 652 S.E.2d
754, 760 (Ct. App. 2007) ("Where a contemnor is unable, without fault on his part,
to obey an order of the court, he is not to be held in contempt." (quoting Smith-
Cooper v. Cooper, 344 S.C. 289, 301, 543 S.E.2d 271, 277 (Ct. App. 2001))).
Accordingly, the record supports the family court's finding of contempt regarding
the Evaluation Order, and we affirm.
IV. Attorney's Fees
Father appeals the family court's award of attorney's fees, asserting the family
court failed to properly consider the relevant factors when deciding whether to
award attorney's fees and the amount to award. Mother appeals the family court's
order, arguing she should have been awarded the full amount of her attorney's fees.
Section 20-3-130(H) of the South Carolina Code (2014) authorizes the family court
to order payment of litigation expenses such as attorney's fees to either party.
When determining whether fees should be awarded, the court considers "(1) the
party's ability to pay his/her own attorney's fee; (2) [the] beneficial results obtained
by the attorney; (3) the parties' respective financial conditions; [and] (4) [the]
effect of the attorney's fee on each party's standard of living." E.D.M. v. T.A.M.,
307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992). Failing to cooperate and
prolonging litigation can serve as an additional ground for awarding attorney's
fees. See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App.
2010). When determining the reasonableness of attorney's fees, the family court
considers "(1) the nature, extent, and difficulty of the case; (2) the time necessarily
devoted to the case; (3) [the] professional standing of counsel; (4) [the]
contingency of compensation; (5) [the] beneficial results obtained; [and] (6) [the]
customary legal fees for similar services." Glasscock v. Glasscock, 304 S.C. 158,
161, 403 S.E.2d 313, 315 (1991). The family court can also consider a litigant's
uncooperative and evasive behavior when determining the reasonableness of the
fees. See Spreeuw v. Barker, 385 S.C. 45, 72–73, 682 S.E.2d 843, 857 (Ct. App.
2009) (holding although an attorney's fee award representing 40% of the husband's
annual income is concerning, the award was not excessive because the family court
also considered how the husband's uncooperative conduct during discovery and
evasive answers regarding his finances greatly contributed to litigation costs).
Appellate courts review a family court's award of attorney's fees de novo. Stone v.
Thompson, 428 S.C. 79, 92, 833 S.E.2d 266, 272 (2019).
We find the family court considered the appropriate factors in awarding Mother
attorney's fees. Mother obtained more beneficial results by prevailing on custody
and in her contempt action. See E.D.M., 307 S.C. at 476, 415 S.E.2d at 816
(stating the family court should consider the beneficial results obtained by the
attorney). Our above modifications of the visitation schedule and Parenting Plan
do not displace Mother's beneficial results. The court noted an attorney's fee award
would not severely impact Father's financial condition because he testified he has
the freedom to pursue business activities and to take entrepreneurial risks because
of family support. See id. at 477, 415 S.E.2d at 816 (stating the family court
should consider the award's effect on the parties' standard of living). The court
noted both parties had the ability to pay their attorney's fees. See id. at 476–77,
415 S.E.2d at 816 (stating the family court should consider the parties' financial
condition and ability to pay). Father prolonged the litigation by refusing to comply
with the psychological evaluation and his conduct during the trial. He was evasive
in responding to questions, especially relating to his employment and finances.
The family court had to interrupt the proceedings many times to instruct Father to
answer the attorney's questions or allow the attorney to ask questions. At one
point, the family court instructed Father that he was flirting with contempt.
Fitzwater v. Fitzwater, 396 S.C. 361, 372, 721 S.E.2d 7, 13 (Ct. App. 2011)
(finding an award of partial attorney's fees to a party with a superior financial
position was appropriate in light of all the E.D.M. factors and because the
obligated party was uncooperative and unnecessarily prolonged the case). Based
on our de novo review, we find the record supports the family court's findings, and
we affirm an award of attorney's fees to Mother.
However, we find the family court erred in setting the amount of Mother's
attorney's fee award. The family court awarded Mother $5,400 of her incurred fee
amount of $51,482.50. Custody cases involving relocation are difficult cases, and
this trial involved ten witnesses, ninety-one exhibits, and required five days to
complete, despite originally being scheduled for one. See Latimer, 360 S.C. at
380, 602 S.E.2d at 34 (stating relocation cases are among the most difficult the
family court encounters). Further, we find Father's refusal to undergo a
psychological evaluation and his conduct and evasiveness on the witness stand
increased this case's difficulty and length. See Glasscock, 304 S.C. 158, 161, 403
S.E.2d 313, 315 (stating the family court should consider "the nature, extent, and
difficulty of the case" when determining the amount of awarded attorney's fees);
Spreeuw, 385 S.C. 45, 72–73, 682 S.E.2d 843, 857 (considering a party's
uncooperative and evasive behavior when determining the attorney's fee amount).
Accordingly, we adjust Mother's awarded fees to $10,000.
V. GAL Fees
Father appeals the family court's division of the GAL's fees. However, he does not
cite any authority to support his argument. See Bryson v. Bryson, 378 S.C. 502,
510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and
will not be considered on appeal if the argument is raised in a brief but not
supported by authority."); see also Butler v. Butler, 385 S.C. 328, 343, 684 S.E.2d
191, 199 (Ct. App. 2009) (declining to address issues on the merits after finding
the issues were abandoned on appeal because the appellant cited no statute, rule, or
case to support his arguments and made conclusory statements without supporting
authority). Accordingly, we affirm the family court's division of the GAL's fees.
CONCLUSION
Based on the foregoing, the family court's order is
AFFIRMED AS MODIFIED.
HUFF and MCDONALD, JJ., concur.