Couch v. Couch

431 S.C. 170

847 S.E.2d 260

Charles Ashley COUCH, Appellant,

v.Rita Ana Del Carmen Patinto Tejada COUCH, Respondent.

Appellate Case No. 2017-002031

Opinion No. 5744

Court of Appeals of South Carolina.

Submitted May 8, 2020

Filed July 15, 2020

Elizabeth Dalzell, of Columbia, for Appellant.

Pamela Wray Blackshire and Bree R. Kennedy, both of Kennedy & Blackshire, LLC, of Hilton Head Island, for Respondent.

HEWITT, J.:

Charles Couch (Father) appeals a family court order requiring him to pay roughly $250,000 in fees and costs to his ex-wife Rita Couch's (Mother) attorneys and to the guardian ad litem (GAL), all within ninety days of the family court's June 2017 final order. He also appeals the family court's ruling that Mother may claim the parties' children as dependents on her income tax return. Father claims that he cannot pay the fees, both parties achieved some beneficial results, he acted reasonably and should not be penalized with fees, and the family court erred in finding Mother would derive greater benefit from the tax deduction. We affirm all issues except the ninety-day requirement, which we reverse and remand with limited instructions.

FACTS

This appeal arises from an action Father filed seeking to modify previous family court orders and obtain sole custody of his and Mother's minor daughters, IC and AC. Father and Mother divorced in Florida in 2006.

The parties were able to reach an agreement resolving nearly all issues related to their marriage's dissolution before they divorced. The divorce decree ratified this agreement. The agreement recognized that Father had already moved to Arizona and that Mother planned to relocate to South Carolina. The parties agreed IC and AC would primarily reside with Mother and would have specified periods of visitation with Father.

There has never been a sustained truce. Since the divorce decree, the parties have been in multiple family court disputes and investigations involving the Arizona Department of Child Safety. This started as early as 2007; the year after the divorce. In many, if not all, of these instances, Father's claims have been denied or dismissed as unsubstantiated. Additionally, the family court has modified the divorce decree in Mother's favor, giving Mother more decision-making authority with regard to the children and ordering Father to pay attorney's fees and costs.

The key events giving rise to this particular case happened in April 2015 when the children traveled to Arizona for spring break visitation at Father's home. During that visit, AC showed Father photos of cuts IC made on her upper arm. Father took IC to the emergency room later that day.

Father did not notify Mother that he had taken IC to the emergency room. Mother only discovered IC was in the emergency room when IC sent a message to a friend via one of her social media accounts, which both parents had the ability to monitor. After Father and IC did not answer Mother's phone calls, Mother sent Father emails asking what was going on. Father wrote Mother that IC was in the emergency room and that a social worker would call Mother soon.

According to hospital records, IC had "superficial cuts" on her arms. IC reported she had been cutting for approximately one month and noted it was due to "stress at school with a peer group." Father apparently also told hospital workers that Mother had a history of mental illness and asserted Mother was physically and emotionally abusive toward the children. A physician recommended that IC see a therapist and contacted Arizona child safety officers due to the nature of Father's allegations. The social worker contacted Mother and noted Mother was concerned and asked appropriate questions about IC's condition. Officers in Arizona attempted to follow up with Father in April 2015; however, no one was at the home and the agency was unable to interview the children. Arizona closed its file in May 2015, noting the claims of abuse and neglect were "Unsubstantiated."

When the children returned to South Carolina, Mother made appointments for IC to see her pediatrician and a counselor. Mother chose a counseling group she believed was in Father's health insurance network and both children began seeing therapists.

In June 2015 Father initiated this action with a complaint and motion for an ex parte emergency order for sole custody. This was roughly three months after Father discovered the cutting in Arizona, but shortly after the girls returned to Arizona for their summer visitation. He alleged a change of circumstances and sought an immediate custody transfer. Father claimed that Mother was negligent for not being aware of IC's "cutting" behavior, she made the children eat rotten fruit, she made the children go without dinner several nights per week, and she engaged in other abusive conduct. Father also cited the by-then unsubstantiated allegations he made in Arizona and the fact that Mother had not baptized AC in the Latter-Day Saints Church as grounds for a custody modification. Father sought a "no-contact order" between Mother and the children until a GAL was appointed, or in the alternative, that Mother only be allowed supervised visitation.

Father later amended his complaint, claiming the counselors the children were seeing were unqualified because they were not licensed. Mother filed an answer denying Father's allegations and asserted counterclaims. Both parties moved for attorney's fees and costs.

After the first hearing, the family court denied Father's motion for an ex parte emergency order and admonished him for serving Mother with his amended complaint at the "eleventh hour." At a later hearing, the family court found there was insufficient evidence to support many of Father's claims and denied all relief Father requested with the exception of a custody evaluation, which it set for trial.

Although the case initially proceeded to trial in October 2016, the trial was adjourned due to Hurricane Matthew. The trial resumed in late November 2016 but on the second day of that trial, Father's trial counsel moved to withdraw citing health issues, a "breakdown in the attorney/client relationship," and a "severe irreversible conflict of interest" with Father. The family court allowed Father's initial trial counsel to withdraw and granted a continuance to give Father time to hire new counsel. The trial was rescheduled for April 2017.

After a four-day trial in which the family court heard from multiple witnesses and received a substantial amount of evidence, the court found Father failed to meet his burden to prove that there had been a substantial change in circumstances negatively affecting the welfare of the children warranting a change in custody. Specifically, the family court found that although there was some evidence Mother occasionally engaged in unusual methods of discipline, there was no evidence she injured or harmed the children. The family court determined Father failed to offer any credible evidence to support his claim that Mother was mentally or emotionally unstable, was negligent in failing to discover IC's cutting behavior, or was negligent in her choice of counselors. The family court also denied Mother's counterclaims and requests for modifications of the custody agreement.

There does not appear to have been much dispute about the testimony and evidence concerning the parties' financial conditions. Mother's financial declaration stated she made $2,652.36 per month as a teaching assistant (about $31,000 per year), and incurred about $2,400 in expenses per month. Her financial declaration reported roughly $70,000 in total assets, including $6,500 in a checking account, real estate worth approximately $48,000, and about $10,000 in her retirement accounts. The financial declaration also showed Mother owed roughly $177,000 for attorney's fees, guardian fees, and loans from friends and family she took out to pay her attorney's fees. Mother testified she had nearly exhausted her retirement savings and taken out loans from friends and family to pay her attorney's fees.

Mother's legal fees were substantial. According to her affidavits, Mother incurred $252,304 in total legal fees and litigation costs; $192,032.59 from Kennedy & Blackshire, LLC, and $60,271.41 from John O. McDougall.

Father's financial declaration indicated he made $9,341 per month as a civil engineer (about $112,000 per year), and incurred about $9,400 per month in expenses. Father's monthly expenses included $2,308 for mortgage payments, $2,425 in installment payments, $451 for household maintenance, $416 for entertainment, and $1,197 for incidental expenses, which included a 10% tithe to his church and gifts for family and friends.

Father's financial declaration also stated he had roughly $277,000 in total assets, including $3,257 in a checking account, approximately $52,000 in real estate equity, and approximately $197,000 in his pension account. However, according to documents filed with his financial declaration, Father was prohibited from accessing his pension before retirement or taking out a loan against it. Furthermore, Father's financial declaration showed he owed roughly $176,000 for attorneys' fees and had also received loans from his parents to make prior payments. Father also had debt of approximately $90,000 from two different home equity lines of credit and about $43,000 in credit card debt.

Father's fees were roughly $110,000 more than Mother's. According to his affidavits, Father incurred $366,226.74 in total legal fees and litigation costs; $165,722.75 from Ken H. Lester and $200,503.99 from Emma I. Bryson.

Father testified he had been on multiple vacations and ski trips over the course of the litigation, although he disputed that some of those trips occurred during the pendency of the current action. Father acknowledged that the promissory notes to his parents were dated within days of the start of the trial and that his father was "wealthy."

The GAL submitted an extensive report and...