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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Harold G. Hines, Jr., Respondent,

Kristen C. Hines, Appellant.

Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court Judge

Unpublished Opinion No. 2012-UP-112
Heard December 6, 2011 – Filed February 22, 2012

AFFIRMED

Everett P. Godfrey, Jr., of Greenville, for Appellant.

H. Michael Spivey, and Melissa D. Spivey, of Mauldin, for Respondent.

Robert A. Clark, of Greenville, Guardian ad Litem.

PER CURIAM: In this family law action, Kristen C. Hines (Wife) appeals, arguing the family court erred in issuing a divorce decree without setting forth the specific findings of fact and conclusions of law that support the decision. Wife further contends the family court erred in awarding custody of the parties' children to Harold G. Hines, Jr. (Husband) as he has a history of violence and exposed the children to other women after he and Wife separated. We affirm.

FACTS/PROCEDURAL HISTORY

Husband and Wife married in December 2001. Two daughters (Children) were born of the marriage; T in 2004 and H in 2005. Around June 24, 2008, the parties separated following an altercation; the two struggled over Wife's bag of pills[1] and Wife hit her head on a doorframe. Husband claimed he found Wife with a bag in which she kept drugs and while the two struggled over the bag, Wife hit her head on the doorframe. Husband eventually let Wife have the bag and she snorted some crushed pills with a straw. Wife claimed the altercation occurred because she told Husband she wanted a divorce; he grabbed her and dragged her outside, hitting her head on the wall and pushing her into the door jamb, and she snorted the drugs as part of a temper tantrum.

Husband contacted the Greenville County Sheriff's Office. Sergeant Chris Taylor, one of the officers who responded, counted Wife's pill bottle and discovered that 76 pills were missing from a 120-pill bottle of Lortab that was refilled four days prior. The prescription called for her to take four pills a day. Wife refused to go with EMS to be evaluated. Wife told Sergeant Taylor that she had snorted the pills. Wife also told Joshua Franseen with the Sheriff's Office she had snorted the pills, Husband had not abused her, and she was not fearful for her life. Franseen informed Husband how to obtain an order of protection. According to the Sheriff's Office report, the judge the officers called denied a warrant for criminal domestic violence. Husband took Children to his father's home for the night. Wife moved to Tennessee to live with her parents following the parties' separation.

On June 26, 2008, Husband filed a complaint for divorce on the statutory grounds of habitual drunkenness based on her use of prescription drugs and requested temporary and permanent custody of Children. Wife filed an answer and counterclaim on June 30, 2008, requesting a divorce based on physical cruelty and custody of Children.

On June 30, 2008, the family court held an emergency hearing due to Husband's motion for emergency temporary relief. At the conclusion of the hearing, the court placed the children in the custody of the South Carolina Department of Social Services (DSS), finding based on the testimony and evidence presented, Children were in imminent and substantial risk of danger and must be removed from the physical custody and care of both Husband and Wife. On July 1, 2008, DSS filed its pleadings. The guardian ad litem (GAL) moved to have Children placed in Husband's parents' custody, and the family court granted the order on July 24, 2008. The court issued an order on August 15, 2008, dismissing DSS's complaint and returning Children to Husband with alternating custody week to week by agreement of the parties. In June 2009, Husband was given temporary primary placement of Children beginning on August 19 for T to begin attending school in Greenville County.

At the beginning of the final hearing, Husband moved to amend his pleading to seek a divorce based on one year's continuous separation and Wife consented. The parties also informed the family court they had settled all of their financial and property issues.

At trial, Husband testified that during the marriage, Wife stayed at home with Children and he worked full-time as well as attended school full-time. He provided that when he would return home, he would "straighten the girls up, you know, spend time with them, get laundry started. Either fix something to eat or go out and get something for us to eat, you know." He indicated that Wife cooked occasionally, about once a week. He stated "it wasn't like every night but she has cooked." Husband provided he did all of his and Children's laundry, as well as the household linens and towels. He testified he would change Children's clothing when he got home from work if they were dirty. He also stated that when he was present, changing diapers was his responsibility. He testified that he had completed a co-parenting class when Children were in DSS custody because it was required.

Husband provided that he has been able to take care of Children since he has had full-time custody. He testified he gets T up in the morning and gets her ready for school. He calls Ashley, his girlfriend, to come over and lets H sleep while he takes T to school. He comes home from work, plays with Children, and takes them to the library, bowling, roller skating, or to dinner with his father. On the weekends, they go to the park to ride bicycles. In the evening, he helps T with her homework, which they spread out over the week. On Wednesday and Sunday nights, Children go to programs at church, and on Sunday morning they attend church services. He testified Children seemed to enjoy living with him in Greenville. He provided that they have lots of fun and "they do really well." He said that although Wife claimed otherwise, H is "a well-behaved little four year old."

Husband testified Wife told him that her uncle sexually molested her as a child, and when she told her parents about it, her mother called her a "slut," and her father, who worked for DSS in Tennessee, did not do anything about it. He also stated she told him about her grandfather touching her inappropriately. He testified that as far as he knew, the uncle still lived in the same town as Wife's parents. He also indicated that everyone who lives in Wife's parents' house who smokes does so in the house. He admitted he smokes as well but does it on his back porch. He further provided that during his marriage to Wife, Wife's brother beat her up while she was at her parents' house over an argument about her using drugs. He testified Wife filed charges but her parents' bought her a Jeep and the charges were dropped. Husband believed Wife's brother would regularly throw parties at their parents' house at which people would get drunk and pass out. He also stated that when Children were taken into DSS custody, Wife gathered all of her and Children's possessions and took them to Tennessee.

Husband testified that after he separated from Wife, he dated a woman, Leanne, for a few months. He stated Children had met her and her son at a park one time. About three weeks after he stopped seeing Leanne, he began dating his current girlfriend, Ashley, who he intends to marry. He indicated he introduced her to Children a few months later and about a month after that he found out she was pregnant with his child. He provided that Ashley does not spend the night in his home when Children are present.

Husband did not believe he had an anger management problem. He stated he had never abused Wife. He admitted he had left small bruises on Children's bottoms from spanking them. He said he now spanks them with his hand but he and Wife previously used a spatula. He stated that he took anger management classes as a result of a recommendation from the GAL. He provided that he learned some things in that class. He also testified about an incident that occurred shortly before the hearing at which a process server came to his house at 6:30 in the morning. He stated that his dogs "were going absolutely crazy, which they seldom do unless something is wrong." He testified that he saw a small car that he did not recognize and a person standing his front porch in "loose attire, didn't look professional." He admitted that he opened his door and pointed a gun in the process server's face because he felt threatened. He admitted that he currently has three pistols in his home.

Wife also testified at the hearing. She testified that she currently lived with her mother and father at their home in Clarksville, Tennessee. She stated she moved to Tennessee because her entire support system, her family and friends, is there. She said, "It's where I grew up. I know how to get around in Clarksville." She indicated she lived in her parents' basement, which had a private access and was about 1,300 square feet. She believed the space was suitable for her and Children. She provided the home she has made for Children is

very large, very open, very fun. We have a lot of kid's toys and we've got little areas set up for the children all over the house. My area specifically is specifically set up for the children. It's safe, it's very open, so they have plenty of play area. They have their toys. They have their own bedroom that's done all in princesses and it's very -- it's a very good environment for them.

She testified the home was in the country so her parents had a lot of room for the farm animals they owned. She planned for H to stay with her mother during the day and T to be at school when she went back to work. Wife believed Children would be better off living with her because she had taken care of them since they were born. She stated:

I have been up all night with them. I have been with them when they were sick. I have changed their dirty diapers, wiped their snotty noses. I have taught them their ABC's. We were almost reading before this happened with [T]. We are so well-bonded and I mean they're my girls. We're so close. And I just think it would be a tragedy to take that away from either one of us.

Wife admitted that three people who live in her parents' house smoke, including herself. She also provided that her family has parties at their home on holidays but no one passes out from drinking. She testified that people do smoke at their parties either in her father's shop area or outside. She indicated she had not lived with her brother since they were children. She also testified about a fight she and her brother had while she and Husband were married. She was visiting Tennessee, and she and her brother got into an argument over a business deal that her brother and Husband made. She said she pushed him and he pushed her back. She admitted that he choked her and she bit his finger and stabbed him with her keys. She provided that her brother's home is thirty miles away from her parents' house but he is currently in Afghanistan serving in the military. She testified her parents had bought her a car after she dropped the charges against her brother but it was an "inspiration gift" so she could go back to school because Husband did not provide her with adequate transportation. She dropped the charges against her brother because she did not want to prosecute him for something in which they were equally involved.

When asked about an uncle molesting her, she stated, "Technically he's not my uncle, he's a cousin that I -- he's so much older than me I called him uncle but he's my third cousin." She indicated that she was eleven years old when the abuse occurred. She stated that the abuse happened in her parents' home, where she currently lives. She said the incident occurred when her extended family had gathered at the home due to an ice storm. She provided that he lives twenty miles away from where she currently lives and he is not allowed anywhere she will be. She stated although no court order required him to stay away, Tennessee has no statute of limitations for statutory rape and he knew that if he comes near her, she will press charges. She testified that she would never allow Children to be around him.

Wife also explained her mother called her a slut when she was seventeen or eighteen years old because she was acting promiscuously. She then informed her mother she was being promiscuous because of the molestation, which her mother did not know about. She stated that once she told her mother she was molested, her mother apologized and said she would talk to her father to decide what they should do. She stated that her cousin was not arrested because her parents felt it would be more traumatic for her to sit through a court case and testify than it would be to let him know he would be prosecuted if he ever came around her or a young girl again. She also indicated that her grandfather, who she said inappropriately touched her when she was two, was dead. She indicated she did not tell her parents about that abuse until around the same time she told them about the other abuse and he was diagnosed with Alzheimer's shortly thereafter.

Additionally, Wife testified about her prescription drug problem. She stated she injured her back in July 2001. She testified she was diagnosed with fibromyalgia and had a disk in her back removed and it continued to degenerate. She indicated she was prescribed medication typically reserved for cancer patients. She became addicted to pain medication and forged a prescription to get more of it. She testified she pled guilty to forging four prescriptions. She attended several different clinics to treat her addiction. She stated she eventually completed a program with honors. Wife also testified she had been diagnosed with bipolar disorder and post-traumatic stress disorder and was receiving treatment for both. She stated her treatment for bipolar disorder was to take a medicine called Abilify to keep her on an even keel. She also sees a therapist once or twice a month for counseling and a psychiatrist once every four weeks. She stated she was diagnosed as being bipolar after she sought counseling due to the incident between her and Husband.

Additionally, Wife testified about the incident that occurred on the night of June 24, 2008. She stated that she had just returned from Tennessee and decided that she wanted a divorce. She informed Husband she wanted a divorce and locked him out of the room. She then let him into the room because he was beating on the door and she was afraid he was going to wake Children. She testified Husband said she must be high if she wanted to divorce him and he grabbed her bag containing Lortab^[2] and Topamax^[3]. She provided he pulled her around the corner as she was trying to get the bag back, causing her to hit her ribs and breast on the wall. She stated that he dragged her down the hallway, which skinned the tops of her feet and knees. He then handed her bag back to her and said "'You'll never divorce me. You'll never get the kids. I will use your drug addict, yourself, your past against you and you'll never get the kids.'" Wife then told Husband, "'I'll show you drug addict and you can't do anything about it.'" Wife then "got the paraphernalia and [she] crushed the pills up and snorted them in front of him." Wife stated that after she finished, Husband pulled her back through the house, this time pulling her face into the door frame, knocking a tooth loose and fracturing her jaw. She testified Husband called police and when they arrived, she told them she did not feel threatened because "'He's done now. He's over it now.'" Wife indicated she told the officers she did not have a drug problem because she "was throwing a temper tantrum basically." She stated she did not want to go to the hospital because she did not want to leave Children but the officers had Husband take Children.

Wife testified Husband had hurt her before that night but had not been "quite that violent" in previous incidents; one time he had thrown her off the bed and thrown the mattress on top of her because one of Children would not stop crying. She indicated that another time, he had raped her the night before she had to go to the hospital to have a procedure performed due to a miscarriage. She did not believe Husband abused Children because he did not mean to bruise them but "sometimes he was overly excessive with his discipline. [He] spanked the girls with a rubber hose so that it didn't leave marks and he spanked them with a spoon." She further stated he spanked H eleven times with a spoon when she was fifteen months old.

T's teacher testified at the hearing as well. She stated that T is on time, has perfect attendance, and is well-dressed. She also indicated Husband had met with her and is a concerned father. She provided T is a good student, is in the high group for reading, and comes prepared.

The court-appointed counselor also testified. She provided that she had met with Children five times. She believed Husband is an excellent father, provides a stable home, is very consistent, and provides structure. She testified Husband is very appropriate with Children, loves them, and keeps them in line. She noted that Children have good manners, are compliant, show affection towards Husband, and obey him well. She recognized that Husband "makes mistakes like a lot of people do, but" she thought he had learned from his mistakes.

She further testified Wife was a good mother and loved Children as much as Husband did. She indicated that Children are bonded to both Husband and Wife. However, she noted Children have a lot of anxiety and "residual behaviors" when they return from visitation with Wife. She stated Children have problems getting back into their routine when returning from visitation because Tennessee is in a different time zone and they stay up later when there. She said that Children report they want to live with Wife because she does not put them in time out. She also provided Children told her Wife told them to tell anyone who asked that they wanted to live in Tennessee. The counselor noted that Wife had informed her she had behavioral problems with mostly H but also T and T reported that H misbehaves when in Tennessee. The counselor indicated she did not have any concerns with Husband taking care of Children. However, she did have concerns about Wife because she does not have a house or a job. She further stated, "I worry about her ability to care for the children as far as parent them and set limits and boundaries and structure based upon her own report." She explained that Wife had taken H to a counseling center in Tennessee and had reported to the center that H has tantrums, cries, pouts, and has headaches. Wife also told the counselor T would be in "'super brat mode'" and H would act infantile. The counselor stated Husband and Children had not reported any similar incidents while they were in Greenville.

The counselor believed both parents needed to continue to learn to work together but she believed the best placement for Children was with Husband. She also believed T was doing well in school and was well-spoken. She thought Husband's girlfriend, Ashley, was a good influence on Children. She testified Ashley had not told her that she spent the night at Husband's house when Children were present, but she believed she did and had advised Husband against it because it violated a court order. The counselor further provided Wife had been the primary caregiver during the marriage, with Husband providing "an enormous amount of support," particularly in terms of paying the bills while Wife stayed at home with Children.

The GAL's report was introduced and stated in part:

It was interesting to note that none of [Wife's] fifteen complaints about [Husband] [as to why he should not have primary custody] included the horrible criminal domestic violence alleged to have happened the night of June 24, 2008. The evidence does not tend to support that [Husband] has been a physically abusive husband to [Wife] nor that [Husband] has abused the children by using excessive corporal punishment. I have found evidence supporting [Husband] may have controlling behaviors and anger issues. Husband pulled a gun on the process server recently.

The GAL noted that Wife lives with her parents who she claims failed to protect her from sexual abuse from her grandfather and a cousin as a child. Wife had stated that her mother blamed her for the abuse. The GAL further provided that Wife suffers from both bi-polar and post-traumatic stress disorder. The GAL also noted that Wife and her mother both smoke in the house.

The family court also dealt with Wife's two contempt issues against Husband; Wife asserted he violated the court's orders by having (1) guns in the house and (2) his girlfriend overnight in the presence of Children. The family court found Husband to be in contempt and as a sanction denied him attorney's fees. At the conclusion of the hearing, the family court announced its decision on the issues, including custody. The family court stated, "I take into consideration the Guardian's full report and [am] satisfied from all the evidence, including the Guardian's report . . . that the best interest of the children would be served by their being in the custody of their father." When addressing visitation, the family court stated it did not think it was healthy to have children exposed to the smoking that went on at Wife's home in Tennessee and acknowledged the history of child abuse that had occurred there but found Children did not need any special restrictions while on visitation with Wife. The family court further stated:

I do think that both of these parents love these girls and would try to do what's best for them and I'm satisfied that the mother will not subject these children to a situation that would involve sexual abuse. I do think that both of the parents probably expose them to smoke. It's clearly not in their best interest.

Following the hearing, the family court issued an order awarding custody to Husband. The order stated, "Though neither party came into this Court with 'clean hands,' the Court finds that custody of [Children] is granted to [Husband]." This appeal followed.

STANDARD OF REVIEW

The appellate court reviews decisions of the family court de novo. Lewis v. Lewis, 392 S.C. 381, 390, 709 S.E.2d 650, 654-55 (2011). The appellate court generally defers to the factual findings of the family court regarding credibility because the family court is in a better position to observe the witness and his or her demeanor. Id. at 390-92, 709 S.E.2d at 654-55. The party contesting the family court's decision bears the burden of demonstrating the family court's factual findings are not supported by the preponderance of the evidence. Id. at 392, 709 S.E.2d at 655.

LAW/ANALYSIS

Wife argues the family court erred in issuing a divorce decree without setting forth the specific findings of fact and conclusions of law that support the decision. She contends the central issue at trial was custody of Children and the divorce decree does not set forth any specific findings of fact or conclusions of law to support the family court's decision to award Husband custody. We agree.

Rule 26(a), SCRFC, provides that "[a]n order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision." See also Griffith v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534-35 (Ct. App. 1998) (holding the family court must make specific findings of fact on the record for each of the required factors to be considered in making its decisions). "However, when an order from the family court is issued in violation of Rule 26(a), SCRFC, the appellate court 'may remand the matter to the trial court or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.'" Griffith, 332 S.C. at 646-47, 506 S.E.2d at 535 (quoting Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)); see also Bull v. Smith, 299 S.C. 123, 126, 382 S.E.2d 905, 906-07 (1989) (holding an appellate court may independently review the record to make findings of fact when the family court's order fails to make such findings in compliance with Rule 26(a)); Bowers v. Bowers, 349 S.C. 85, 98-99, 561 S.E.2d 610, 617 (Ct. App. 2002) ("[N]ot every violation of Rule 26(a) requires reversal[] . . . . Here, the record on appeal is sufficient for this Court to make necessary findings of fact relating to the award of attorney's fees.").

After reviewing the entire order, we agree with Wife that the family court's order is lacking in regards to custody. Nonetheless, the remedy for a lack of findings is either to remand or to make our own findings of fact if the record is sufficient. The record is sufficient here for us to make our own findings of fact on custody.

Wife contends the family court erred in awarding custody of Children to Husband. We disagree.

In a child custody case, the welfare of the child and what is in the child's "'best interest is the primary, paramount, and controlling consideration of the court.'" Davis v. Davis, 356 S.C. 132, 135, 588 S.E.2d 102, 103-04 (2003) (quoting Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978)).

The family court considers several factors in determining the best interest of the child, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including GAL, expert witnesses, and the children); and the age, health, and sex of the children.

Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d 386, 388 (2001). "In making custody decisions the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed." Parris v. Parris, 319 S.C. 308, 310, 460 S.E.2d 571, 572 (1995).

"In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child." Kisling v. Allison, 343 S.C. 674, 678, 541 S.E.2d 273, 275 (Ct. App. 2001); see also S.C. Code Ann. § 63-15-10 (2010) ("The 'Tender Years Doctrine' in which there is a preference for awarding a mother custody of a child of tender years is abolished."). "'The relative fitness of parents is an important issue in custody litigation. . . . Fitness decisions normally turn on either of two considerations; whether either parent has been the primary caretaker, or whether either parent has engaged in conduct which would affect the welfare of the child.'" Brown v. Brown, 362 S.C. 85, 91, 606 S.E.2d 785, 788 (Ct. App. 2004) (alteration by court) (quoting Roy T. Stuckey, Marital Litigation in South Carolina 433 (3rd ed. 2001)). "'Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker.'" Id. (quoting Patel v. Patel, 359 S.C. 515, 527, 599 S.E.2d 114, 120 (2004)).

In Divine v. Robbins, 385 S.C. 23, 33, 683 S.E.2d 286, 291 (Ct. App. 2009), the mother claimed the pivotal issue in determining custody was who to blame for the outbursts and altercations between the parties. However, the family court's order considered the mother's behavior and the tumultuous nature of the parties' relationship as one of many factors in its decision, as is statutorily required in resolving custody issues. Id. (citing S.C. Code Ann. § 63-15-40 (Supp. 2008) (formerly S.C. Code Ann. § 20-7-1530) (stating that in making a decision regarding child custody, the family court must, in addition to other factors, give weight to evidence of domestic violence)). Further, although a parent's morality is a proper factor for consideration, it is only relevant if it either directly or indirectly affects the welfare of the child. Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975). "Custody of a child is not granted [to] a party as a reward or withheld [from a party] as a punishment." Id.

In support of her argument that the family court erred in awarding Husband custody, Wife points both to Husband's anger issues and that he introduced Children to women with whom he was involved. Wife failed to show that Husband's relationships after their separation have impacted Children negatively. Children's counselor believed that Ashley was a positive influence on Children. Although Husband does seem to have some anger issues, they do not seem to be directed at Children. In comparing the situation at his home to that at Wife's, his is the more desirable situation. Both Children have lived in Greenville their entire lives and one is currently enrolled in school there. Children have been living with Husband since the temporary order and are doing well there. Wife indicates she has no intention of returning to Greenville but instead plans to remain in Tennessee. The testimony presented indicates Children have many more behavioral problems when in Tennessee with Wife. Based on our review of the record, we find the family court properly awarded Husband custody of Children. Accordingly, the family court's decision is

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.

[1] Wife had previously battled a prescription drug habit.

[2] Lortab is used to relieve moderate to severe pain.

[3] Topamax is used to treat seizures in people with epilepsy. It is also used to prevent migraines.