Cole v. Cole

Gregory, Justice:

Appellant Melinda R. Cole commenced this action for divorce on the grounds of physical cruelty and adultery in May of 1975. Respondent Eugene D. Cole answered and counterclaimed for divorce alleging habitual drunkenness and adultery on the part of appellant. C ustody and related matters were also at issue. This protracted litigation culminated in a final decree of divorce dated June 21, 1978. We affirm in part and reverse in part.

By order dated May 13, 1975, Mrs. Cole was granted temporary care and custody of the four children,1 awarded *452temporary support and all issues were referred to the master-in-equity. Some two and one-half years and four hearings later the master issued his report recommending that the court award, among other things, a divorce to Mr. Cole on the ground of adultery and the permanent custody of the four children to Mrs. Cole.

The Family Court heard the exceptions of both parties to the master’s report, reviewed the transcript and exhibits, took further testimony and issued the final decree which:

(1) granted Mr. Cole a divorce on the ground of adultery;

(2) denied Mrs. Cole alimony;

(3) granted Mrs. Cole the continued custody of the two oldest children;

(4) granted Mr. Cole the custody of the two youngest children ;

(5) awarded the marital residence to Mr. Cole.

(6) denied Mrs. Cole an equitable division of property accumulated during the marriage;

(7) awarded Mrs. Cole $200.00 per month per child in child support for the two oldest children; and

(8) awarded Mrs. Cole’s counsel a fee of $3,000.00.

There is no appeal from those portions of the decree granting Mr. Cole a divorce and denying Mrs. Cole alimony. Appeal is taken by Mrs. Cole on the issue of custody of the two youngest children and the amount of child support awarded for the .two oldest children. M r . Cole does not appeal the award of custody of the two oldest children to Mrs. Cole.

The matterrs of the marital residence and the denial of an equitable property division are also appealed by Mrs. Cole, however they come to this Court after the findings of the master were concurred in by the family *453court judge. This being a matter in equity, the “two judge” rule applies. Townes Associates, Ltd. v. City of Greenville, 266 S. C. 81, 221 S. E. (2d) 773 (1976). Since the findings are not without evidentiary support or against the clear preponderance of the evidence, we affirm under our Rule 23. Wilson v. Wilson, 270 S. C. 216, 241 S. E. (2d) 566 (1978).

As to the issue of custody of the two youngest children, the master and the Family Court are in disagreement. This being a matter in equity, we must therefore consider the evidence and make an independent determination of this question. Pullen v. Pullen, 253 S. C. 123, 169 S. E. (2d) 376 (1969); Townes Associates, Ltd., supra.

That the best interest of the child subject to a custody dispute is the paramount and controlling consideration and the rule of the courts in this State needs no citation of authority. We are once again put to the “awesome task of looking into the past and predicting which of the two available environments will advance the best interest of the child[ren].” Cook v. Cobb, 271 S. C. 136, 142, 245 S. E. (2d) 612, 615 (1978). In our view, the two youngest children’s best interest is served if they remain in the custody of their mother and at home with their older brother and sister where they have always been.

The lower court found that Mrs. Cole had dated several men in the three years since the parties separated, and disbelieved her denial of sexual relations and adulterous conduct. In short, Mrs. Cole’s relationships with other men were found to be contrary to the interests of the children. Further bearing on the Family Court’s decision to award Mr. Cole custody of the two youngest children is the fact that Mrs. Cole was hospitalized for the treatment of emotional problems before the parties separated, which led to an allegedly excessive intake of prescription drugs. How*454ever, these factors are important only to the extent they presently bear on the children’s best interest.

The morality of a parent is a proper factor for consideration but is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. Custody of a child is not granted a party as a reward or withheld as a punishment.

Davenport v. Davenport, 265 S. C. 524, 527, 220 S. E. (2d) 228, 230 (1975).

While there is evidence of emotional disturbance and adulterous conduct on the part of Mrs. Cole, neither incapacitates her now insofar as her roles of mother and housekeeper are concerned. The Family Court would apparently agree as far as the best interest of the older children is concerned. We see no reason why Mrs. Cole cannot function equally as well in those roles with the younger children, as she has for the past several years.

The emotional problems are of the past, not the present, and substantially the result of her turbulent marital relationship with Mr. Cole. Mrs. Cole is now gainfully employed and provides the stable and comfortable home environment the children need. The evidence indicates the children are happy and well-adjusted in this environment. Evidence of past emotional disturbance is insufficient justification for removing the two youngest children from their lifelong family environment when there is conclusive evidence of recuperation and the present strength and stability of the mother.

Although we do not condone the alleged acts of sexual misconduct ascribed to Mrs. Cole, to punish all four children therefor by dividing custody and removing the younger ones from their now-accustomed environment free from the discord which existed during the marriage is no solution and contrary to the children’s best interest, the *455paramount consideration. Mixson v. Mixson, 253 S. C. 436, 171 S. E. (2d) 581 (1969). Whatever the extent of Mrs. Cole’s moral lapse by way of post-separation adultery, the record does not support the finding of the lower court that the welfare of the children is adversely affected thereby. See Davenport, supra; Dent v. Dent, S. C., 256 S. E. (2d) 743 (1979).

There is also evidence Mrs. Cole is not a meticulous housekeeper ; however, this is predictable and understandable with four active children at home. Furthermore, Mr. Cole’s proposed arrangements for the care of the two youngest children are less satisfactory than the present arrangement.

Mr. Cole himself does not emerge from the voluminous record any less blemished than Mrs. Cole. His conduct with his oldest daughter prior to the separation is suspect and, like Mrs. Cole, he has not abstained from companionship with the opposite sex since the parties separated.

In light of our decision to reverse the order of the Family Court insofar as custody of the two youngest children is concerned, we remand for a determination of child support for the two youngest children.

Counsel for Mrs. Cole has also excepted to the finding of the Family Court that $3,000.00 is a reasonable fee for representing appellant in this action. From a review of the record and the voluminous testimony taken the contention has, at first, some appeal. A close scrutiny of the record, however, indicates this case was unnecessarily prolonged by counsel for both the wife and the husband. A substantial portion of the eleven hundred page record is irrelevant to the issues submitted to the court. Not only should counsel have shortened the proceeding, but the master should have used his discretion, notwithstanding a failure of objection, to limit the testimony to that truly relevant to the issues. Unneeded testimony is not only a burden to the litigants in the printing of the record, but is *456unnecessarily time consuming to this court in reviewing the same. We find this exception to be without merit.

Affirmed in part; reversed in part and remanded.

Ness and Rhodes, JJ., concur. Lewis, C. J., and Littlejohn, JJ., dissent.

The older children, Kimberly, now 17, and Donald now 16, were born of Mrs. Cole’s former marriage and adopted by Mr. Cole. The younger, Eugenia, now 9, and Angela, now 6, are the natural children of this marriage.