24880 - Pitt v. Olds
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Sonya Lynn Pitt, Respondent,
Brian Todd Olds, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Charleston County
Judy C. Bridges, Family Court Judge
Opinion No. 24880
Heard December 1, 1998 - Filed January 18, 1999
D. Mark Stokes, of N. Charleston, for petitioner.
Greg Myers, Pratt-Thomas, Pearce, Epting and
Walker, of Charleston, for respondent.
Cindy M. Floyd, of N. Charleston, Guardian ad Litem.
WALLER, A.J.: We granted a writ of certiorari to review the Court of
Appeals' opinion in Pitt v. Olds, 327 S.C. 512, 489 S.E.2d 666 (Ct. App. 1997).
This is a custody dispute. Respondent, Sondra Pitt (Mother), and
Petitioner, Brian Olds (Father), were married in Berkeley County in May, 1988.
They had one child, Ashton, born in December, 1988. They were divorced in
September, 1991 based on one year's continuous separation. The divorce decree
granted the parties joint legal custody, with Mother having primary custody,
and father having secondary custody and liberal visitation.
In March, 1993, Mother and Father consented to an order of the family
court enjoining either of them from permanently removing Ashton from the
State of South Carolina on a permanent basis prior to obtaining leave of court.
In April, 1994, Mother, then age 23, married George Pitt, a 49 year old
businessman from Arizona.1 The following month, Mother petitioned family
court seeking to permanently move with Ashton to Arizona to set up residence
with her new husband. After a lengthy hearing, the family court ruled it would
be "clearly adverse to the best interests of Ashton Olds were she to be removed
from her family and friends, familiar surroundings, and her father here in
South Carolina to ... Phoenix, Arizona where she would be essentially a
stranger and not have the necessary family support network..." The family
court found no evidence a move to Arizona would be in the best interests of the
child. Accordingly, the court continued the parties' joint custody arrangement
with Mother having primary custody so long as she established permanent
residency in the geographical area, but that if she failed to do so, Father would
become primary custodian.
The Court of Appeals reversed, holding Mother's desire to join her new
husband in Arizona constituted a "pressing need" sufficient to allow her to
relocate the child to Arizona
Did the Court of Appeals err in holding Mother was entitled to
remove the child to Arizona?
In the absence of a change of circumstances affecting the welfare of the
child, a final decree of divorce awarding custody in accordance with an
agreement of the parties is conclusive between them. Cook v. Cobb, 271 S.C.
136, 245 S.E.2d 612 (1978). In order for a court to modify an existing custody
decree, there must be a showing of changed circumstances occurring subsequent
to the entry of the decree. Heckle v. Heckle, 266 S.C. 355, 223 S.E.2d 590
(1976). See also Pinckney v. Hudson, 294 S.C. 332, 364 S.E.2d 462
(1988)(change of circumstance requirement applies to cases in which a parent
seeks to alter joint custody). A change in circumstances justifying a change in
the custody of a child simply means that sufficient facts have been shown to
warrant the conclusion that the best interests of the child would be served by the
change. Stutz v. Funderburk, 272 S.C. 273,252 S.E.2d 32,34 (1979). This Court
has specifically held that remarriage alone is not sufficient to warrant
modification of a custody decree. Fisher v. Miller, 288 S.C. 576, 344 S.E.2d 149
(1986). See also Sealy v. Sealy, 295 S.C. 281, 368 S.E.2d 85 (Ct. App. 1988)
The Court of Appeals noted Mother's request to move with Ashton to
Arizona was based "solely on her wish to live with her husband in his
state of residence." 327 S.C. at 520, 489 S.E.2d at 670. (Emphasis supplied).
The Court of Appeals then held that, given Mother's close relationship with
Ashton, the trial judge erred in refusing her request. This was error. The effect
of the Court of Appeals' holding is, in essence, to hold that Mother's remarriage,
in and of itself, constitutes a sufficient change to modify the existing decree.
This is contrary to our holding in Fisher v. Miller, supra. Moreover, not only are
there no findings of changed circumstances sufficient to modify the custody
decree, there are no findings by the Court of Appeals that a move to Arizona
would be in Ashton's best interest. In sharp contrast is the order of the family
court which specifically finds the move would not be in Ashton's best interests
As Mother failed to demonstrate a change of circumstances warranting
a modification of the prior decree, the Court of Appeals erred in reversing the
family court's order. Accordingly, the Court of Appeals' opinion is
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur
warranting modification of the custody decree, we need not address the
implications of our opinion in McAlister v. Patterson, 278 S.C. 481, 483, 299
S.E.2d 322, 323 (1981) (setting forth presumption against removal of a child
from the jurisdiction).