THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Terri Lynn Porter,        Appellant,

v.

Robert Scott Porter,        Respondent.

Appeal From Oconee County
Rolly W. Jacobs, Family Court Judge

Unpublished Opinion No. 2003-UP-030
Submitted December 10, 2002 � Filed January 8, 2003���

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Cheree  Gillespie, of Clemson; for Appellant

Julian L. Stoudemire, of Seneca; for Respondent.

PER CURIAM:� In this domestic case, Terri Lynn Porter (the mother) appeals several aspects of the family court�s order.� The issues on appeal include numerous findings of fact by the family court, the award of divorce to both the mother and Robert Scott Porter (the father) on the ground of one year�s continuous separation, the award of joint custody of the parties� minor child with primary placement awarded to the father, the family court�s failure to order the father to pay retroactive child support to the mother, and the family court�s failure to order that the father�s name be removed from the birth certificate of another child of the mother.� We affirm in part, reverse in part, and remand. [1]

FACTS

The parties married in August 1997, but lived together for approximately four years prior to the marriage.� The mother has three minor daughters, Sara, born in 1991, Haley, born in August 1994, and Faith, born in January 1997.� Of the three minor children, only Faith is the father�s biological child.� Haley is not the father�s biological child; however, she was born during the time the mother and father were cohabitating before they married, and the father is designated as her father on her birth certificate.�

The parties separated in July 1998, and the mother commenced this action against the father in September 1998.� After the mother filed suit, the parties reconciled briefly and separated for the final time in November 1998.� In her complaint, the mother sought a divorce on the statutory grounds of physical cruelty or, in the alternative, habitual drunkenness or drug abuse.� The mother also sought child custody and support for Haley and Faith, alleging the father �has acknowledged two children have been born of their union.�

The father answered, admitting to so much of the mother�s complaint as alleged two children were born to the parties� union.� He otherwise denied the mother was entitled to the relief sought in her complaint.� The father also counterclaimed against the mother, seeking a divorce on the ground of adultery and an order awarding him joint custody of the two children.

In a pretrial order dated August 2, 1999, the family court required the father to inform the mother�s attorney in writing by August 16, 1999, if he desired a paternity test for Haley.� There is no indication in the record that the father ever sought such testing.� Thereafter, by temporary order dated February 24, 2000, the family court awarded the mother continued custody of Faith and ordered the father to pay her child support in the amount of $108.00 per week commencing on January 1, 2000.� The family court also restrained the father from harassing the mother, appointed a guardian ad litem to represent Faith, and declined to order visitation for the father pending the outcome of an investigation by the Department of Social Services of allegations of child abuse.

In April 2000, the mother petitioned the family court for a rule to show cause why the father should not be held in contempt for failure to remit court-ordered child support payments.� The family court issued the rule to show cause and scheduled a hearing on the matter for July 12, 2000.� The hearing was thereafter rescheduled and subsumed into the final hearing on the merits of the underlying divorce action.

The family court held the final hearing on July 20, 2000.� At the onset of the hearing, the mother sought and received leave to amend her complaint to request a divorce on the ground of one year�s continuous separation.� The mother also unsuccessfully sought to amend her pleadings to include a request for divorce on the ground of adultery.� The family court found, however, that the mother could present evidence of the father�s post-separation adultery to establish any effect it might have had on the break-up of the marriage.

By order dated September 29, 2000, the family court did the following: awarded both parties a divorce on the ground of one year�s continuous separation, awarded the parties joint custody of Faith with primary placement with the father and visitation for the mother, ordered the mother to pay child support to the father in the amount of $437.00 per month, declined to award either party attorney fees, declined to hold the father in contempt for failing to make child support payments as mandated in the prior order, and ordered that the amount of any arrearage the father had accumulated would be applied as a credit to the mother against her child support obligation until such arrearage was exhausted.

LAW/ANALYSIS

1.� On appeal, the mother asserts error in nineteen separate findings of fact by the family court.� We decline to address separately the propriety of each of the contested findings; nevertheless, we note virtually all the mother�s challenges involve findings of credibility, veracity, and character of witnesses at trial, most particularly the mother herself.� The family court found the mother was less than forthcoming in a number of ways, including her use of illicit drugs, her misleading statements to the guardian ad litem regarding her cohabitation with a paramour during the pendency of the litigation, and her role in encouraging or remaining silent as to her two older daughters� unfounded allegations of sexual abuse against the father and other adult males.� In addition, the family court found the mother denied the father visitation with Haley in an effort to punish him and made exaggerated claims of domestic violence against him in order to gain advantage over him for purposes of these proceedings.�

The appellate courts of this State recognize the superior position family court judges possess to gauge the credibility of the witnesses and assign weight to their testimony. [2] � We discern no sound reason to depart from this standard in the present case.� Accordingly, giving due deference to the family court, we decline to disturb the portion of the order containing factual findings relating to witness credibility.

We agree with the mother, however, that the family court erred in determining the father�s income for purposes of calculating the parties� respective child support obligations.� The family court found the father �is employed at the same place that he had been for some time and now earns approximately $1,280 per month gross as an electrician.�� The father, however, testified he had been working at a new job for less than two weeks at the time of trial.� According to his own testimony, the father earns $11 per hour and is guaranteed at least 40 hours pay per week.� This yields a monthly salary of $1,906.� We therefore reverse the award of child support and remand the issue to the family court.� On remand, the family court is directed to recalculate the parties� child support obligations using figures reflective of their current incomes.���

The mother also correctly notes the family court erroneously found the parties separated in July 1998, rather than November 1998.� The family court also erroneously stated the father, rather than the mother, sought leave at trial to go forward with the divorce on the ground of adultery.� Although erroneous, neither of these findings is of any real consequence here.� The parties had been separated for more than one year at the time of the July 2000 final hearing, and neither party suffered any prejudice because of the finding.� Accordingly, we decline to disturb the order in this regard. [3]

The remaining factual findings are either supported by the record or so inconsequentially imprecise as to have no effect whatever on this court�s disposition of the issues raised on appeal.� By way of example, the mother asserts the family court erred in finding that her pleadings �initially alleged the children were the product of the union of Plaintiff and Defendant, and the answer admitted the same.�� The mother would have this court hold this finding was erroneous despite the fact she expressly alleged in her complaint that �the Defendant has acknowledged two children have been born of the union.�� Neither the family court�s failure to repeat her allegation verbatim nor the negative inference drawn by the family court regarding the mother�s reasons for making the allegation renders the finding erroneous.�

2.� The mother next argues the family court erred in awarding both parties a divorce on the ground of one year�s continuous separation.� Specifically, she contends that only she, and not the father, moved to amend her pleadings to include a request for divorce on this ground.� Even assuming error as to the family court�s finding in this regard, the mother suffered no prejudice at all.� The marriage is no less dissolved than it would have been had the family court granted a divorce to her alone on the same ground. [4]

3.� The mother further asserts the family court erred in failing to order the father to pay child support retroactive to the date of her complaint and in failing to issue an order allowing for the removal of his name from Haley�s birth certificate.� These issues are not preserved for our review.�� The family court did not rule on either of these issues in its final order, and the record does not show any post-trial motion by the mother for a ruling on either issue after the order. [5]

4.� The mother asserts the family court erred in failing to hold the father in contempt of court for failure to pay child support as required by the temporary order.� We find no reversible error.

�Contempt results from the willful disobedience of a court order.� [6] � The record before the court must �clearly and specifically� exhibit the contemptuous conduct to sustain a finding of contempt. [7] � A finding of contempt rests within the trial court�s sound discretion and will be disturbed on appeal only if it is without evidentiary support or is an abuse of discretion. [8]

The father admitted he failed to make timely child support payments and accumulated an arrearage.� It is undisputed, however, that the order requiring the father to make child support payments beginning on January 21, 2000, was not filed until February 25, 2000.� Furthermore, the father explained that his efforts to satisfy the arrearage and simultaneously keep up with his ongoing obligation were frustrated by a failed construction contract.�� �

Under these facts and circumstances, we discern no abuse of discretion in the family court�s determination the father�s failure to make timely support payments was not willful in nature and, therefore, did not warrant a finding of contempt. �

4.� Finally, the mother asserts the family court erred in failing to award her sole custody of Faith.� We disagree.

Custody is based on a determination of the character, fitness, attitude, and inclinations on the part of each parent. [9] � Moreover, �the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.� [10]

Notwithstanding the guardian ad litem�s statement that both the parties were loving parents, we agree with the family court that neither party in this case �is a paragon of moral virtue.�

Initially, both parties denied using any illicit drugs during the pendency of this litigation.� The father, however, eventually admitted to using marijuana.� The mother, on the other hand, continued to deny any drug use, even after she tested positive for use of amphetamines.� In addition, despite having leveled numerous accusations of physical abuse against the father, including four separate incidents wherein she caused the father to be criminally charged with domestic violence, the mother later admitted that the father struck her on only one occasion.

Moreover, at the time of the final hearing, both parents were involved in what the guardian termed �nonconventional relationships.�� Specifically, both the mother and father were living with paramours, and both stated their intent to continue their respective living arrangements.

Despite their shortcomings, both parties were found to have good parental qualities.� According to the guardian ad litem, the parents� �are some of the most tuned-in to these children and their likes and dislikes of any I�ve ever seen.�� Both parties also maintain steady employment and, despite the live-in status of their respective paramours, enjoy apparently stable and suitable households.�

In our view, the propriety of the family court�s ultimate determination of the most suitable custody arrangement for Faith turned on the mother�s attitude towards the father and the unlikelihood that she would foster a healthy relationship between the father and Faith if she were granted sole or primary custody of the child.� Throughout the course of this litigation and even on appeal, the mother continued to adamantly express her concerns that the father had in the past or will in the future sexually abuse Faith or one of her other daughters.� Although Haley accused the father of inappropriate touching, the allegations were deemed unfounded after an investigation by the Department of Social Services.� Moreover, the guardian ad litem noted in her report that �Haley attached no particular meaning to the incident and was not afraid of her father.���

Inasmuch as the mother is apparently unwilling or unable foster a loving, healthy relationship between Faith and the father, we hold the family court correctly determined that Faith�s best interests presently dictate a joint custodial arrangement with primary placement vested in the father.� �

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GOOLSBY, HUFF, and SHULER, JJ., concur.