Kearns v. Odom

Timothy Paul Kearns, Appellant, v. Falon Elise Odom, Respondent.

No. 2022-UP-191

Appellate Case No. 2019-001862

Court of Appeals of South Carolina

May 11, 2022

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted March 1, 2022

Appeal From Greenville County Thomas T. Hodges, Family Court Judge

J Falkner Wilkes, of Greenville, for Appellant.

Travis Verne Olmert, of Carter Smith Merriam Rogers & Traxler PA, of Greenville, for Respondent.

Milford Oliver Howard, III, of Howard Law Firm, P.A., of Greenville, as Guardian ad Litem.

PER CURIAM:

Timothy Paul Kearns (Father) appeals the family court's order denying his request for a modification of custody of his minor son (Child). On appeal, Father argues the family court erred by (1) finding there was no change in circumstances to support a modification of custody and (2) ordering Father to pay a portion of Falon Elise Odom's (Mother's) attorney's fees and costs. We affirm.

1. We hold the family court properly denied Father's request for a modification of custody because Father failed to prove there had been a substantial change in circumstances affecting the welfare of Child such that a change in custody would be in the best interest of Child. See Stone v. Thompson, 428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019) ("Appellate courts review family court matters de novo, with the exceptions of evidentiary and procedural rulings."); Clark v. Clark, 430 S.C. 167, 175-76, 843 S.E.2d 498, 502 (2020) ("[O]ur de novo review does not discard 'the longstanding principles that trial [courts] are in superior positions to assess witness credibility and that appellants must show the trial [court] erred by ruling against the preponderance of the evidence . . . .'" (quoting Thompson, 428 S.C. at 91-92, 833 S.E.2d at 272)); Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 359 (Ct. App. 1999) ("In any child custody controversy, the controlling considerations are the child's welfare and best interests."); Hollar v. Hollar, 342 S.C. 463, 473, 536 S.E.2d 883, 888 (Ct. App. 2000) ("In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question."); Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004) ("[W]hen a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.").

2. We hold the family court did not err by ordering Father to pay $18, 000 of Mother's attorney's fees and costs because the family court's final order shows the court properly considered the E.D.M.^[1] and Glasscock^[2] factors. See Dickert v. Dickert 387 S.C. 1, 10-11, 691 S.E.2d 448, 453 (2010) (holding the family court did not err by awarding attorney's fees and costs because the court properly considered the E.D.M. and Glasscock factors in a case that required "a great deal of time and energy to assess"); see also Chisholm v. Chisholm, 396 S.C. 507, 510, 722 S.E.2d 222, 223 (2012) ("[The appellate court] review[s] the family court's grant of attorney's fees de novo."); E.D.M., 307 S.C. at 476-77, 415 S.E.2d at 816 ("In determining whether an attorney's fee should be awarded, the following factors should be considered: (1) the party's ability to pay his/her own attorney's fee; (2) beneficial results obtained by the attorney; (3) the parties' respective financial conditions; [and] (4) effect of the attorney's fee on each party's standard of living."); Glasscock, 304 S.C. at 161, 403 S.E.2d at 315 (stating the family court should consider the following factors to determine the amount of an award of attorney's fees: "(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial...