Wendy Grungo-Smith v. Joseph Grungo ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Wendy Grungo-Smith, Respondent,
v.
Joseph Grungo, Appellant.
Appellate Case No. 2020-000934
Appeal From York County
Thomas Henry White, IV, Family Court Judge
Opinion No. 5969
Heard November 16, 2022 – Filed February 10, 2023
REVERSED
John Brandt Rucker and Allyson Sue Rucker, both of
The Rucker Law Firm, LLC, of Greenville, for
Appellant.
James R. Honeycutt, of Fort Mill, and James B.
Richardson, Jr., of Columbia, both for Respondent.
LOCKEMY, A.J.: Wendy Grungo-Smith (Mother) appeals an order from the
family court awarding primary custody of Child 1 and Child 2 (collectively,
Children) to Joseph Grungo (Father) and granting an award of child support to
Father. We reverse.
FACTS/PROCEDURAL HISTORY
In 2012, Mother and Father divorced. Pursuant to a court-approved agreement, the
parties were 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 March 2019, Mother filed a custody modification action, asserting Father failed
to "take advantage of shared visitation." She sought sole custody of Children,
standard visitation for Father, and child support. Father filed an answer and
counterclaim seeking essentially the same relief in his favor and alleging numerous
changes in circumstances.
At the June 2020 trial, Mother testified Children were eleven and twelve years old.
Mother testified she had two jobs and worked during weekdays, every other
weekend, and at night, from home, after Children went to sleep. She explained
Father never exercised his full custody time, even though she and her husband,
Kenneth Smith (Stepfather) did not prevent him from doing so. Mother stated she
had moved five or six times since the parties' divorce and each move was to a
larger home or closer to Children's school. Mother testified she moved into her
current home, which was twenty minutes or twenty-two miles from Father, shortly
before trial and was required to live there for fifteen years as a condition of her
loan. She stated her current home was closer to Father than her previous home,
and the longest Father ever had to travel to her home was thirty-five minutes,
assuming there was no traffic. Mother testified Children behaved well and
excelled physically, mentally, socially, and academically. Mother indicated
Stepfather was a father figure to them, and neither she nor Stepfather spoke badly
of Father to Children or discouraged their relationship with him. She stated that
although she and Stepfather argued like normal married people, they discussed
their issues outside Children's presence.
Stepfather testified Mother was Children's primary caretaker, and neither he nor
Mother discouraged Children from having a relationship with Father. He stated
although no one prevented it, Father never utilized all of his allotted custody time.
However, he acknowledged Father recently visited Children more often because
they were out of school.
Father testified he had lived in Fort Mill for the past thirteen years and owned his
own business. He admitted he occasionally missed Monday and Tuesday
overnight visits but explained he usually took Children to dinner on those nights.
He testified he did not exercise his full custody time because of his work schedule
and traffic. Father testified he provided only $1,200 to Mother during the year
prior to trial. Father acknowledged he could have taken Children to school earlier
or modified his work hours and further acknowledged that neither Mother nor
Stepfather prevented him from exercising his custody time. He averred Mother's
moves had a negative effect on his ability to spend time with Children because of
his commute to pick up Children and drop them off at school. Accordingly, he
requested primary custody of Children so they could go to school in Fort Mill.
On cross-examination, Father credited Mother for Children's academic success.
He admitted the divorce decree did not prevent either party from moving and it
required the parties to share Children's expenses equally. Father also admitted he
never tried to legally enforce the school provision.
Several additional witnesses testified about Mother, Father, and Children. Gwen
Catron, Children's maternal grandmother, testified Mother was a loving mother,
Stepfather was a good father-figure, and Father was a good dad. John Willfong, a
former administrator from Children's school, testified he believed Children
excelled academically due, in part, to Mother's involvement in their education.
The guardian ad litem (Guardian), testified she conducted five in-person visits with
Children and spoke to them five or six additional times on the phone, with the last
occurring on the day of trial. She testified she was welcomed at Mother's and
Father's homes, and both parties were cooperative throughout her investigation.
The Guardian stated Children indicated Mother and Stepfather yelled and fought a
lot in front of them and belittled Father to them. The Guardian testified Children
told her Mother put oil on their heads to "be blessed" before they spoke to her and
so they would not say anything negative about her to the Guardian. She stated that
at Mother's home, Children were "much more uptight," appeared "very nervous,"
whispered to her so no one would overhear them, and requested to go to their
bedrooms for the visits. She also stated that during one visit, Child 1 showed her
videos of Mother and Stepfather arguing. The Guardian testified that at Father's
home, Father let her speak to Children privately and Children appeared very
relaxed. She stated Children loved both parents, did not want to be torn between
the situation, and were credible. The court requested the Guardian provide a
recommendation because "of the disparity in the testimony before [it] today" and
that neither party provided "a middle ground." Upon the court's request, the
Guardian stated she believed Father would be the better suited custodial parent
based on the information provided by Children.
In her written report, the Guardian stated Children were happy, well-mannered
children and were always willing to speak with her, regardless of whether they
were at Mother's home or Father's. However, she stated they told her they felt
comfortable at Father's home and liked his home better because there was "so
much peace" and no "stress." She indicated Children told her that at Mother's
house, they performed most of the chores and watched their sibling and other
children Mother babysat. The Guardian also reported Mother gave her videos of
visitation exchanges, which showed Mother telling Father not to come close to her
car and Children appearing stressed. She stated she had not found any reason to
believe Father was a threat to Mother.
The family court found Father showed a material change in circumstances to
warrant a change of custody and such change was in Children's best interests. It
stated Father admittedly did not exercise his full custody time. However, it found
the parties initially lived twenty to thirty minutes of each other but after Mother's
changes in residences, Father's home was forty-five minutes to an hour away. It
found Children had changed schools six times and a daily commute for Father
rendered the parenting plan "extraordinarily" difficult. The court determined
Mother did not consult with Father about any of her moves or obtain Father's
agreement before selecting Children's schools and concluded Mother's moves and
Children's schools were not conducive to the 5-2-2-5 parenting plan.
The family court found although Mother and Stepfather denied it, Children told the
Guardian that Mother and Stepfather argued in front of them and called Father
disparaging names, which impeached Mother's and Stepfather's credibility and lent
credence to Father's allegations. It acknowledged Children told the Guardian they
loved both parents; however, it found Children also told the Guardian they liked
Father's home better because there was "so much peace" and no arguing or stress.
The family court determined Children showed the Guardian videos of Mother and
Stepfather arguing and told the Guardian they could not speak to her on the phone
because they were at Mother's home. It further noted the Guardian recommended
Father be granted custody. Accordingly, the family court granted Father's request
for sole custody and awarded him child support. This appeal follows.
ISSUE ON APPEAL
Did the family court err in awarding custody of Children to Father?
STANDARD OF REVIEW
"In family court appeals, this court reviews factual and legal issues de novo."
Whitesell v. Whitesell, 431 S.C. 575, 584, 848 S.E.2d 588, 592 (Ct. App. 2020).
"Although this court reviews the family court's findings de novo, we are not
required to ignore 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.LAW/ANALYSIS
Mother argues the family court erred in awarding custody of Children to Father.
She asserts the evidence showed Children were thriving in her care and all parties
agreed Children were exceptional. We agree.
"The paramount and controlling factor in every custody dispute is the best interests
of the children." Brown v. Brown, 362 S.C. 85, 90, 606 S.E.2d 785, 788 (Ct. App.
2004). In modifying a custody order, the family court must consider the children's
best interests and other statutory factors. S.C. Code Ann. § 63-15-240(B) (Supp.
2022).
"In order for a court to grant a change in custody, there must be a showing of
changed circumstances occurring subsequent to the entry of the [custody order]."
Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004). "A change in
circumstances justifying a change in the custody of a child simply means that
sufficient facts have been shown to warrant the conclusion that the best interests of
the children would be served by the change." Id. (quoting Stutz v. Funderburk, 272
S.C. 273, 278, 252 S.E.2d 32, 34 (1979)). "[T]he change of circumstance relied on
for a change of custody must be such as would substantially affect the interest and
the welfare of the child, not merely the parties, their wishes or convenience."
Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct. App. 2000)
(quoting Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971)).
We hold the family court erred in awarding Father custody because Father did not
establish a substantial change in circumstances. First, we find the record did not
show a change in circumstances sufficient to modify the custody order. 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. See
§ 63-15-240(B)(1-2), (10-11) (stating that when modifying a custody order, the
court should consider "the temperament and developmental needs of the child;"
"the capacity and the disposition of the parents to understand and meet the needs of
the child;" "the child's adjustment to his or her home, school, and community
environments;" and "the stability of the child's existing and proposed residences").
Second, we find the family court erred in concluding Mother's moves and
Children's schooling arrangements were not conducive to the parenting plan
because she did not consult Father. Rather, we find each move was in the best
interests of Children. See § 63-15-240(B). Mother testified she moved into a
larger home each time or was closer to Children's school and that she was required
to live in her current residence for fifteen years as a condition of her loan.
Further, we conclude the family court erred by finding that the moves and changes
in schools were not conducive to the current parenting plan because the record did
not support such a finding. Rather, the 5-2-2-5 plan was not in practice because
Father did not exercise his full custody rights and Mother had custody of Children
more than fifty percent of the time. Additionally, though the divorce decree
provided that 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," Father
testified that for the year prior to trial, he only contributed $1,200 while Children
were in Mother's care.
We express our 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. See Pirayesh v.
Pirayesh, 359 S.C. 284, 296, 596 S.E.2d 505, 512 (Ct. App. 2004) ("Rather than
merely adopting the recommendation of the guardian, the court, by its own review
of all the evidence, should consider the character, fitness, attitude, and inclinations
on the part of each parent as they impact the child as well as all psychological,
physical, environmental, spiritual, educational, medical, family, emotional and
recreational aspects of the child's life."); Shirley, 342 S.C. at 339, 536 S.E.2d at
435 ("The role of the [Guardian] in making custody recommendations is to aid, not
direct, the court. Ultimately, the custody decision lies with the trial judge."). At
oral arguments, Father's counsel only pointed to the family court's determination
that the 5-2-2-5 plan was rendered difficult to follow, but was unable to identify
any other findings in the family court's order establishing a change in
circumstances favoring Father that derived from something other than the
Guardian's testimony and report.
Father did not present evidence of a substantial change in circumstances. Under
Mother's care, Children were well-mannered and excelled academically and
socially. Additionally, any changes did not adversely affect Children's well-being
and no issues were reported as to their welfare. See Latimer, 360 S.C. at 381, 602
S.E.2d at 35 ("The change of circumstances relied on for a change of custody must
be such as would substantially affect the interest and welfare of the child.").
However, this appeal derives from Mother's custody modification action and
Father's counterclaim. As such, both Mother and Father were required to show
sufficient facts demonstrating a substantial change in circumstances warranting a
change of custody in the best interest of Children. Id.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. Accordingly, we
reverse the family court.
REVERSED.
WILLIAMS, C.J., and THOMAS, J., concurs.