                     THE STATE OF SOUTH CAROLINA
                         In The Court of Appeals

             Samuel James Tomlinson, Appellant,

             v.

             Jenna M. Melton, (f/k/a) Jenna M. Tomlinson,
             Respondent.

             Appellate Case No. 2016-002329



                         Appeal From Richland County
                     Gwendlyne Y. Jones, Family Court Judge


                                 Opinion No. 5692
                  Heard April 9, 2019 – Filed November 13, 2019


                        REVERSED AND REMANDED


             Kenneth M. Mathews, of Columbia, and Katherine
             Carruth Goode, of Winnsboro, both for Appellant.

             Harry C. Wilson, Jr., of Lee, Erter, Wilson, Holler &
             Smith, LLC, of Sumter, for Respondent.


SHORT, J.: In this child custody action, Samuel Tomlinson (Father) appeals the
family court's final order, arguing the family court erred in (1) ordering a week-to-
week alternating custody arrangement, rather than continuing; (2) failing to make a
finding as to Jenna Melton's (Mother's) child support arrearage and failing to offset
that amount; and (3) abusing its discretion in its awards to Mother of child support
and attorney's fees. We reverse and remand.

FACTS
Father and Mother married in Lexington County on March 8, 2008. In September
2008, Mother and Father had a son together (Child). On January 4, 2011, the
family court issued a final order and decree of divorce. At the time of divorce,
Child was three years old. The original divorce decree incorporated the custody
agreement formed by the parties. In it, Mother and Father share joint custody of
Child with Father as the primary custodial parent. The agreement stipulated
Mother would have Child every other week from Wednesday at 4:00 p.m. until
Monday at 3:00 p.m., various holidays, and equal time during summer months.
The family court ordered Mother to pay child support of $100 monthly. The
agreement stipulated a de novo review of child custody may be conducted before
Child began kindergarten.

Prior to the start of kindergarten, Father filed an action for modification of custody,
seeking "the full care, control and custody of [Child]" and requesting Mother
receive visitation every other weekend. Mother answered, seeking full custody of
Child. The family court held a temporary hearing on September 9, 2014, and
subsequently issued a pendente lite order on October 7, 2014, that provided there
was insufficient information to change the terms of the 2011 order.

Father lived in a large home in Kingstree and was employed as a physician at
Williamsburg Regional Hospital. Mother remarried on July 5, 2016. Mother lived
in Sumter with her husband, Cory Mickle, and their newborn daughter. Mother
recently accepted a job at the Williamsburg School District, signed a rental
contract for a two bedroom house in Kingstree, and purchased land in Kingstree in
order to build a home near Child.

After a three-day hearing, the family court altered the original custody agreement
and ordered divided week-to-week custody, with Father retaining final decision
making authority. The family court modified custody to week-to-week because
Child was in school and both parents would soon live in the same city. The family
court stated, "it is inappropriate to reduce the amount of parenting time for
[Mother] when she is now in the same city," when "[s]he received more than
alternating weekends . . . while living in another city." The family court ordered
Father to pay child support in the amount of $659.00 a month and attorney's fees of
$8,500. The order did not reflect any offset for arrears Mother owed Father.
Father filed a motion to reconsider—arguing the family court failed to consider
Child's stability and failed to offset Mother's arrears—which the family court
denied. Father appealed.
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).
Thus, the appellate court has the authority to find the 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, 709 S.E.2d at 651-62.
Therefore, the appellant bears the burden of convincing the appellate court that the
family court committed error or that the preponderance of the evidence is against
the court's findings. Id. at 392, 709 S.E.2d at 655.

LAW/ANALYSIS

I.    Week-to-Week Alternating Custody

Father argues the family court erred in establishing a week-to-week divided
custody arrangement. We agree.

"The family court has exclusive jurisdiction . . . to order joint or divided custody
where the court finds it is in the best interests of the child." S.C. Code Ann. § 63-
3-530(A)(42) (2010). "However, '[a]lthough the legislature gives family court
judges the authority to order joint or divided custody whe[n] the court finds it is in
the best interests of the child, . . . joint or divided custody should only be awarded
whe[n] there are exceptional circumstances." Clark v. Clark, 423 S.C. 596, 606,
815 S.E.2d 772, 777 (Ct. App. 2018) (alterations by Clark court) (quoting Lewis v.
Lewis, 400 S.C. 354, 365, 734 S.E.2d 322, 327 (Ct. App. 2012) (omission by Lewis
court)) (finding one parent's attempt to alienate the other, the excessive "passage of
time," and "good reports on [c]hild's welfare and mental adjustment to the situation
comprise exceptional circumstances warranting joint custody"); see also Scott v.
Scott, 354 S.C. 118, 125-27, 579 S.E.2d 620, 623-25 (2003) (finding exceptional
circumstances where the alternating periods of custody were not brief, but four
week periods, and where both parents were fit, loved, and wanted their children);
Spreeuw v. Barker, 385 S.C. 45, 61, 682 S.E.2d 843, 851 (Ct. App. 2009) (finding
exceptional circumstances where "a seven year delay occurred between the
issuance of the family court's final order . . . and oral argument . . . .").
"[D]ivided custody is usually harmful to and not conducive to the best interest and
welfare of the children." Scott, 354 S.C. at 125, 579 S.E.2d at 623 (footnote
omitted) (quoting Mixson v. Mixson, 253 S.C. 436, 446, 171 S.E.2d 581, 586
(1969)). The Scott Court explained why it disfavored divided custody:

             The courts generally endeavor to avoid dividing the
             custody of a child between contending parties, and are
             particularly reluctant to award the custody of a child in
             brief alternating periods between estranged and
             quarrelsome persons. Under the facts and circumstances
             of particular cases, it has been held improper to apportion
             the custody of a child between its parents . . . for
             ordinarily it is not conducive to the best interests and
             welfare of a child for it to be shifted and shuttled back
             and forth in alternate brief periods between contending
             parties, particularly during the school term. Furthermore,
             such an arrangement is likely to cause confusion,
             interfere with the proper training and discipline of the
             child, make the child the basis of many quarrels between
             its custodians, render its life unhappy and discontented,
             and prevent it from living a normal life.

Id. at 125-26, 579 S.E.2d at 624 (quoting Mixon, 253 S.C. at 447, 171 S.E.2d at 586).

Here, the family court made no specific findings of exceptional circumstances to
justify divided custody, nor do we find any from our de novo review. The record
reflects both parents are fit, loving, and want custody of Child. While we applaud
both parents for their part in raising a respectful, intelligent, and caring child, the
record reflects no exceptional circumstances to justify week-to-week divided
custody.

On the contrary, the circumstances of this dispute reflect that divided custody is
not in Child's best interest. Here, the family court ordered divided custody for
week-to-week periods. Week-to-week divided custody will rarely be in the best
interest of the child, especially during the school year. See Courie, 288 S.C. at
168, 341 S.E.2d at 649; Scott, 354 S.C. at 125-27, 579 S.E.2d at 623-25 (providing
that week-to-week custody was brief, but four week periods of custody was
sufficiently long enough to negate harmful effects of divided custody); Woodall v.
Woodall, 322 S.C. 7, 12-13, 471 S.E.2d 154, 158 (1996) (holding visitation that
shuttled child back and forth for brief periods of two weeks at a time was not in
child's best interest).

Additionally, the record reflects both Mother and Father have a divisive
relationship and fail to communicate effectively. The record reflects over 4,500
text messages, calls, and emails from Mother to Father where she regularly and
frequently requests changes to the schedule. Further, both parties think the other is
a bad influence on Child. See Lewis, 400 S.C. at 367, 734 S.E.2d at 329 (finding
divided custody is not in best interest of the child when there is an "acrimonious
relationship between Husband and Wife"). Because we find there are no
exceptional circumstances, the divided custody is in brief periods, and Mother and
Father's relationship is acrimonious, we hold divided custody is not in the best
interest of Child.

II.   Failure to Offset Child Support

Father argues the family court erred in failing to find Mother's child support
arrearage and failing to offset that amount against the child support Father was
required to pay. We agree.

The original child custody agreement ordered Mother to pay $100 a month in child
support. Mother admitted she did not pay child support since the 2011 order.1
Mother argues this issue was not preserved because Father did not request arrears
in his pleadings. While the pleadings did not contain a specific request for
arrearage, it did request Mother to pay child support. Mother and Father both
testified Mother did not pay child support for five years, from the 2011 order, until
the family court hearing on October 11, 2016.

In addressing Father's pleading for child support, the family court as a court of
equity must consider the matter as thoroughly as possible. See Burch v. Burch, 395
S.C. 318, 331, 717 S.E.2d 757, 764 (2011). Courts have "the inherent power to do
all things reasonably necessary to insure that just results are reached to the fullest
extent possible." Id. at 318, 331, 717 S.E.2d at 764. Additionally, during Mother's


1
 Mother gave Father a check for $2,300, in August dated September 24, 2014, for
some of the three years of back child support. Father stated because the check was
postdated he was unable to cash the check when he first received it; however, he
attempted to cash the check on November 18, 2014, but failed because Mother
placed a stop pay order on it.
testimony she admitted one of the requests Father made at the hearing was for
payment of her child support arrears.

The family court should have considered Mother's arrearage because the issue was
presented to the family court through both parties' testimony and because it was
necessary in the interest of equity. Therefore, we hold Father did not have to
separately plead the issue of arrearages to preserve the issue; when he pled for
child support, the issue was raised through testimony, and Mother's failure to pay
was confirmed from the testimony of both parties. Because the family court was
responsible for determining when child support payments should begin and what
each party owes, the family court should have offset Father's child support by
$6,000.

Father also argues the family court abused its discretion in its award of child
support and attorney's fees. Because we held the family court erred on custody, we
reverse and remand for the determination of primary custody and child support.
As to the issue of attorney's fees, we also remand for the family court to reweigh
the "beneficial results obtained" pursuant to the custody determination. Lewis, 400
S.C. at 372, 734 S.E.2d at 331.

CONCLUSION

Accordingly, the family court's order is

REVERSED AND REMANDED.

LOCKEMY, C.J., concurs.

MCDONALD, J., concurring in a separate opinion.
MCDONALD, J., concurring in result:

I concur in the result reached here, as I agree with the majority's reversal of the
family court's custody award and the majority's analysis of the child support
arrearage offset question. I respectfully concur in result only as to the child
custody analysis, however, because I am concerned that the continued application
of our language disfavoring awards of joint or divided custody is incompatible
with the realities of family court practice today. Moreover, I believe this judicially
created language of disfavor—as well as our requirement that a family court find
"exceptional circumstances" to support an award of joint custody—is inconsistent
with the General Assembly's grant of jurisdiction to our family courts "to order
joint or divided custody where the court finds it is in the best interests of the child."
S.C. Code Ann. § 63-3-530 (A)(42) (Supp. 2018).

In 1996, when the General Assembly codified joint custody as an option for family
courts to consider in child custody determinations, it added no caveat of disfavor
nor any "exceptional circumstances" element to the statute.2 Our supreme court
readopted the "exceptional circumstances" language in 2003, when it reasoned:

             This Court has stated that "[d]ivided custody is usually
             harmful to and not conducive to the best interest and
             welfare of the children." Mixson v. Mixson, 253 S.C. 436,
             446, 171 S.E.2d 581, 586 (1969). Therefore, only under
             "exceptional circumstances" should joint custody be
             ordered. Id. at 447, 171 S.E.2d at 586; see also Courie v.
             Courie, 288 S.C. 163, 168, 341 S.E.2d 646, 649 (Ct.
             App. 1986) ("Divided custody is avoided if at all
             possible, and will be approved only under exceptional
             circumstances.").

             In 1996, the Legislature amended the statute governing
             the family court's jurisdiction to specifically grant the
             family court the exclusive jurisdiction "[t]o order joint or
             divided custody where the court finds it is in the best
             interests of the child." S.C. Code Ann. § 20-7-420
             (Supp. 2002). Thus far, the only published decision to
             comment on this subsection is Stanton v. Stanton, 326
             S.C. 566, 484 S.E.2d 875 (Ct. App. 1997), where the
             Court of Appeals stated the following: "Although joint or
             divided custody is now permitted under S.C. Code Ann.
             § 20-7-420(42) (Supp. 1996), visitation amounting to



2
  When enacted, the subsection granting family courts jurisdiction "to order joint
or divided custody" was codified at § 20-7-420(42). However, in 2008, the
General Assembly created the South Carolina Children's Code by adding Title 63
and transferring all provisions of Title 20, Chapter 7 to Title 63. See Act. No. 361,
2008 Acts 3623. This language from § 20-7-420(42) is now found in § 63-3-
530(A)(42).
             divided custody is disfavored by our supreme court." Id.
             at 573, 484 S.E.2d at 878-79.

             It is our opinion section 20–7–420(42) did not change the
             law in this State that, generally, joint custody is
             disfavored. Mixson, supra. Nevertheless, our focus
             remains on the best interest of the child. See Patel,
             supra; § 20–7–420(42). The issue therefore is whether
             this case presents exceptional circumstances such that the
             best interest of the child requires an award of joint
             custody. We conclude it does.

Scott v. Scott, 354 S.C. 118, 125, 579 S.E.2d 620, 623-24 (2003) (footnote
omitted). 3

Further, language suggesting "divided custody is usually harmful" or requiring a
finding of "exceptional circumstances" appears incongruous with Section 63-5-30
of the South Carolina Code, which provides:

             The mother and father are the joint natural guardians of
             their minor children and are equally charged with the
             welfare and education of their minor children and the
             care and management of the estates of their minor
             children; and the mother and father have equal power,
             rights, and duties, and neither parent has any right
             paramount to the right of the other concerning the
             custody of the minor or the control of the services or the
             earnings of the minor or any other matter affecting the
             minor. Each parent, whether the custodial or
             noncustodial parent of the child, has equal access and the
             same right to obtain all educational records and medical
             records of their minor children and the right to participate
             in their children's school activities unless prohibited by
             order of the court. Neither parent shall forcibly take a


3
 Notably, the Scott court's focus appropriately remained on the best interests of the
child, and it affirmed the family court's award of joint custody. Id. at 127, 579
S.E.2d at 624-25.
             child from the guardianship of the parent legally entitled
             to custody of the child.

S.C. Code Ann. § 63-5-30 (2010).

While our supreme court in Scott recognized divided custody is not a perfect
solution in disputed custody cases (and in many cases, may be inappropriate), we
should not continue to graft outdated, judicially created considerations to child
custody analyses. This limits the options available to parties, family court
practitioners, and family court judges seeking the best custody plans for families
under the particular circumstances of their cases and family situations.

Thus, I respectfully concur in result here, as I believe it is time for our supreme
court to reconsider this language disfavoring joint custody—along with any
requirement that our family courts find "exceptional circumstances" to justify joint
custody awards—to alleviate any concerns our family courts may have regarding
the circumstances in which they may award "joint or divided custody" pursuant to
the legislature's grant of jurisdiction in § 63-3-530(A)(42).
