THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Kaitlin Kimbrell Harper Whitesell, Respondent, 

v. 

Jeremy Page Whitesell, Appellant. 

Appellate Case No. 2017-002601 

Appeal From York County 

Karen S. Roper, Family Court Judge 

Opinion No. 5771 

Submitted June 1, 2020 – Filed August 26, 2020 

AFFIRMED 

Thomas Franklin McDow, IV, and Erin K. Urquhart, 

both of McDow and Urquhart, LLC; and Barrett Wesley 

Martin, of Barrett W. Martin, P.A., all of Rock Hill, for 

Appellant. 

Daniel Dominic D'Agostino and Jacqueline N. Davis, 

both of D'Agostino Law Firm, of York, for Respondent. 

HEWITT, J.: This family court case involves requests to modify child support 

and custody. Father argues the family court erred by not specifically addressing 

which witnesses were credible and why. He also argues that the family court made 

several other errors depriving him of a fair trial and that Mother did not properly 

plead a claim for attorney's fees. 
 

 

 

We respectfully disagree with these arguments. The family court's order reveals 

the reasons for its decision, and after reviewing the record, we agree with those 

reasons. This case began with Mother's request to modify child support per a 

provision in the parties' divorce decree. The lengthy and contentious trial 

proceeded because Father pursued a request to change the custody arrangement. 

We agree with the family court's decision to resolve that claim against Father. 

Given that outcome, we agree it is equitable for Father to pay a portion of Mother's 

attorney's fees as the family court ordered. We also agree Mother properly pled a 

claim for attorney's fees. Thus, we affirm. 

BACKGROUND 

Father and Mother married in February 2006. They separated in October 2009 and 

divorced in March 2011. They are the parents of two girls: Daughter 1, born in 

July 2006, and Daughter 2, born in March 2008. 

Father and Mother met while they were students at York Technical College. They 

married shortly thereafter. Both Father and Mother went to school part-time after 

Daughter 1 was born. 

This seems to have been a rocky relationship. Father claimed Mother was a 

habitual liar. Mother claimed Father spent too much time with other female 

students when he began a full school schedule. 

Both parties claimed the other was physically abusive and some of the conduct 

described in the record is alarming. Father admitted throwing a block through the 

window of Mother's car and tying an extension cord from the bumper of his 

mother-in-law's car to the mother-in-law's garage door. The parties were, 

nevertheless, able to reach a final agreement at the end of their marriage. The 

divorce decree ratified that agreement. 

Two parts of the divorce decree are relevant here. First, the parties agreed to joint 

physical custody with Mother being the primary custodial parent, subject to the 

agreed parenting plan. The parenting plan provided Father would have the 

children from the time school ended on Thursday until 6:00 p.m. on Sunday, every 

other week, and overnight on the Thursdays during the weeks of his "off" 

weekend. The decree provided "[b]oth parents will have reasonable and at all 

times private telephone contact with the children, and the children will be allowed 

to have reasonable, private telephone contact with either parent." 
 

 

 

 

 

Second, the parties agreed to deviate down from the DSS Child Support Guidelines 

and that Father would pay $400 per month in child support. The divorce decree 

noted both parties were enrolled in college and lacked a steady source of income. 

The decree explained "[b]ecause of the temporary nature of each party's financial 

situation, a change in either party's income or any of the other factors taken into 

consideration in the calculation of child support . . . will be a substantial change of 

circumstances upon which child support may be recalculated." 

Mother filed this case in April 2016—roughly five years after the divorce. She 

sought an increase in Father's child support. 

Father responded and sought more parenting time as well as an order terminating 

his child support and requiring child support from Mother. 

Father claimed Mother would not work with him in co-parenting and was trying to 

alienate him from the children. His evidence included several disparaging text 

messages Mother sent him in the months before she filed this case. The messages 

were insulting and inflammatory. 

Mother's chief allegation against Father is prolonged harassment. She claimed her 

disparaging messages were due to frustration at Father failing to timely pay child 

support, threatening to "take the girls" if Mother sued for an increase in child 

support, and failing to timely respond to her questions about the children's 

education, medical issues, and extracurricular activities. 

Mother also claimed Father harassed her by keeping her under constant 

surveillance. Father, who is himself a private investigator, admitted to hiding 

under Mother's home in order to eavesdrop. He also, with his father's involvement, 

had investigators place cameras around Mother's family beach house during 

Mother's vacation and place GPS trackers on Mother's vehicle and her boyfriend's 

vehicle. Father also secretly recorded his phone calls with Mother, recorded 

Mother's calls with the children, and recorded conversations he had with the 

children. At one point, Father apparently had a physical altercation with Mother's 

then-boyfriend and was charged with assault and battery. 

The family court tried this case for four days in June 2017. Thirteen witnesses 

testified. The court entered an order in August 2017, roughly two months later. 

The family court increased Father's child support to $1,335 per month and ordered 

Father to pay his support through the clerk of court. The court also ordered Father 

to pay $20,000 of Mother's attorney's fees. This was slightly less than half of 

Mother's total attorney's fees. The court denied Father's requests to change custody 
and modify the parenting plan. The court ordered the parties to complete 

psychological evaluations that had been ordered four months before the trial and 

explained that the report from those evaluations would be submitted to the 

court-appointed co-parenting counselor. This appeal followed. 

ISSUES ON APPEAL 

1. Whether the family court erred in failing to directly and specifically address 

witness credibility. 

2. Whether any of Father's numerous alleged errors warrant reversal or 

combine to deprive him of a fair trial. 

3. Whether the family court erred in determining Mother properly pled a claim 

for attorney's fees and whether the trial court erred in awarding her $20,000 

in attorney's fees. 

STANDARD OF REVIEW 

In family court appeals, this court reviews factual and legal issues de novo. 

Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. 

Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court 

reviews the family court's findings de novo, we are not required to ignore 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. Lewis, 

392 S.C. at 385, 709 S.E.2d at 651–52. The appellant has the burden of showing 

this court the greater weight of evidence is against the family court's findings. Id. 

at 392, 709 S.E.2d at 655. 

WITNESS CREDIBILITY 

Father argues that before making findings of fact the family court should have 

determined witness credibility and made specific credibility findings. His brief 

relies on cases explaining the jury's role in judging credibility. Father also cites 

cases in which appellate courts have admonished trial courts for issuing orders that 

lack a sufficient explanation and leave a reviewing court to "grope in the dark." 

We agree that witness credibility can be important and that nobody—not the 

parties, a reviewing court, or anyone else—should be left to grope in the dark for 

the reasons a family court made a decision. Rule 26(a) of the South Carolina Rules 

of Family Court speaks to this by requiring the family court to support its decision 
with specific findings of fact and conclusions of law. We know of no authority 

requiring the family court to give a witness-by-witness account of its credibility 

assessments. Epperly v. Epperly explains an order is sufficient as long as a 

reviewing court can determine the basis for the family court's ruling. 312 S.C. 411, 

414, 440 S.E.2d 884, 886 (1994). 

The final order in this case is sixteen pages long. It explains the family court judge 

reviewed all of the exhibits, considered the testimony, and considered witness 

credibility. The order also summarizes and explains the rulings on each issue. 

Father's core argument centers on Mother's credibility. He believes many 

examples in the record show Mother as being untruthful. It would be wasteful to 

list all of these examples here. The basic point is that Father believes Mother is 

generally dishonest and he asserts that numerous instances reveal this to be true. 

Neither the guardian ad litem (the GAL) nor the family court agreed with this 

characterization. We agree with them. While the record suggests both parties 

were not always completely forthcoming and transparent with each other, the 

family court's decision was grounded in its finding that Mother and Father were fit 

and capable parents despite their substantial difficulties with each other. 

A large part of Father's case hinged on the breakdown of a constructive 

co-parenting relationship. Father claims this breakdown was Mother's fault. 

The family court disagreed and found "both parties" contributed to this 

relationship's deterioration and made co-parenting "extremely difficult." The court 

conspicuously mentioned that Father had continued conducting surveillance on 

Mother "[d]espite being divorced for over six years" and ordered Father to "cease 

to intrude" on Mother's life. The family court likewise ordered Mother to stop 

directing profane language at Father and suggested she use better self-control. 

Father's argument relies largely on his view of the facts as he saw them at trial. 

When considered against the entire record, however, Father does not show by a 

greater weight of the evidence that the family court erred. We therefore 

respectfully reject the argument that the lack of specific credibility findings leads 

to a different outcome than the one the family court reached. 

CULMINATION OF ERRORS 

Father argues that the family court made a variety of specific errors and that even if 

those alleged errors are insufficient to warrant relief when standing alone, they 

have combined to prejudice him and deprive him of a fair trial. 
 

As already noted, the family court's decision was driven by a view of the record 

with which we agree. We will briefly examine Father's alleged errors. 

Psychological Evaluations 

Father sought an order requiring Mother to undergo a psychological evaluation. 

Mother initially opposed the request but consented after Father agreed to pay for it 

and to be evaluated himself. This agreement was memorialized in an order issued 

four months before the final hearing. The evaluations were not completed before 

trial. Father argues the family court should not have decided the case without the 

evaluations being completed. 

The family court addressed this directly, stating the court would hold the record 

open if it determined the evaluations were necessary for its final decision. After 

the trial and after considering all the evidence, the family court found Mother and 

Father were both capable parents, there was no evidence of any mental health 

disorder, and it did not need the psychological evaluations to rule on custody. The 

court found the parties would benefit from working with a co-parenting counselor, 

ordered the psychological evaluations to proceed, and instructed the report from 

the evaluations be delivered to the co-parenting counselor. 

Father argues one judge of the same court cannot overrule another. That did not 

happen here. The family court judge who tried this case did not overrule the prior 

order requiring the parties to submit to psychological evaluations. The family 

court, acting with the benefit of a full record, ordered the evaluations to proceed 

and specified the report would be delivered to the parties' co-parenting counselor. 

Change of Conditions 

Father points to the fact that he and Mother got along relatively well in the period 

immediately after their divorce and argues their deteriorating relationship 

constitutes a "change in conditions" warranting a custody modification. 

As mentioned above, the family court found Father shared in the fault for this 

parenting relationship's deterioration. The family court specifically mentioned 

Mother's harmful conduct, but the family court also noted Mother's conduct was 

influenced by Father's invasion of her privacy and continued surveillance. 

Equal Parenting Time 

Father argues the family court misunderstood his claim to be that the children had 

been in his custody roughly fifty percent of the time. 
 

 

 

In Father's supplemental and amended pleading, he alleged the parties deviated 

from the divorce decree's parenting plan and that those deviations "resulted in 

[Father] receiving an average of fourteen (14) overnights per month for the 2015 

calendar year." Fourteen nights a month is equivalent to roughly half the year. 

The family court found both parties substantially followed the parenting plan with 

Father having the children from Thursday to Sunday and Thursday to Friday on 

alternating weeks. We agree with the family court that Father did not establish a 

deviation from the parenting plan that would constitute a substantial change of 

circumstances. 

Father's Income 

Father takes issue with the family court's statement in the final order that he "has a 

far greater income and significantly greater assets at his disposal [than Mother], 

including over $100,000 in his business bank accounts on December 31, 2016 with 

no debt associated with the monies." Father asserts that he is only part owner of 

the private investigation business he shares with his brother and his father and that 

he has no authority to disperse business funds. 

The fact that Father is only a fifty percent owner of the business was not contested 

at trial. The record also supports the fact that Father is in a superior financial 

position as compared to Mother. At the time of trial, Mother's gross monthly 

income was $4,900. She also paid for the children's health insurance and for the 

cost of daycare. Father's financial declaration at the time of trial showed gross 

monthly income of $8,500. The evidence showed his business was thriving. 

Father also disagrees with the family court's finding that he did not accurately set 

forth his income until shortly before trial. This conflicts with the testimony of 

Bernard Ackerman, a CPA who explained in his examination that Father's 

February 2017 financial declaration did not accurately reflect the overtime, 

business income, and other profits Father received from his company. 

Disparaging Text Messages 

Father argues Mother's abusive communications are a sign of a mental health 

disorder. There is no evidence in the record Mother has a mental health disorder. 

The GAL issued an extensive report and testified at the final hearing. The GAL 

believed both parties were capable parents and expressed a desire for the parents 

"to be able to get along." When the family court specifically asked the GAL about 

mental evaluations, the GAL explained she had not seen any evidence of a mental 

health disorder during her investigation. 
We also note, as did the family court, that the record suggests Mother's abusive 

messages were the result of frustration with Father's behavior. 

Father also disputes the family court's statement that "[t]he parties do not 

communicate well, have engaged in disparaging remarks and surveillance, and the 

protracted litigation has further deteriorated their relationship." Father claims he 

has never made any disparaging remarks toward Mother. 

We do not understand the family court to have found Father disparaged Mother. 

We believe the family court's decision was informed by its recognition that both 

parties were at fault for the acrimony in the relationship. 

Preference of Children & Alleged Unilateral Decisions 

Father argues the family court did not give the proper weight to Daughter 1's 

wishes or to the fact Mother allegedly made unilateral parenting decisions 

involving the children. 

The family court found Mother consulted with Father on a host of issues and 

Father did not demonstrate Mother prevented him from participating in decisions 

affecting the children. The court acknowledged evidence Mother did not inform 

Father of some of the children's appointments, but the court also noted evidence 

Mother regularly informed Father of other things and Father would sometimes fail 

to respond. 

Section 63-15-30 of the South Carolina Code (2010) requires the family court to 

consider a child's reasonable preference for custody when evaluating a child's best 

interest and to weigh the preference based on several factors. Though the family 

court's final order did not mention either daughter's preference, the family court 

discussed them in the extensive oral ruling it delivered at the trial's conclusion. 

The family court noted Daughter 1 would prefer to live with her Father and 

Daughter 2 seemed to favor her mother. Despite these preferences, the family court 

did not believe changing custody would be in the girls' best interest. We agree. 

Alleged Poor Supervision 

Father disagrees with the family court's finding that he did not present any credible 

evidence Mother failed to properly supervise the minor children. Father's key 

evidence involves an incident in which the girls allegedly drove a golf cart around 

the neighborhood without adult supervision. 
 

 

 

Mother admitted this occurred and the GAL stated she believed it was an isolated 

incident. The GAL additionally noted that even though Father had private 

investigators following Mother, nothing further was brought to her attention 

warranting concern as to Mother's supervision. 

Cross-examination 

Father argues the family court erred in denying his request to re-cross the CPA. 

Father claims Mother's counsel brought out new matters during the witness's 

redirect examination. 

Rule 611, SCRE, provides "[a] witness may be re-examined as to the same matters 

to which he testified only in the discretion of the court, but not without exception 

he may be re-examined as to any new matter brought out on redirect." This 

argument is reviewed under an abuse of discretion standard. Liberty Mut. Ins. Co. 

v. Gould, 266 S.C. 521, 533, 224 S.E.2d 715, 720 (1976) ("The right to, and scope 

of, recross-examination is within the sound discretion of the trial court."). 

We examined the witness's testimony as well as the exchange between the family 

court and Father's counsel and see no evidence the family court abused its 

discretion. 

Alienation 

Father disagrees with the family court's finding that he failed to demonstrate any 

pattern of Mother refusing to allow the children to participate in events with him 

and his extended family. 

The family court found the evidence demonstrated the children usually attended 

Father's family events and missed events, while disappointing, were a normal 

consequence of conflicting parenting schedules. We agree. There is evidence and 

testimony showing Mother would arrive early and save seats for both Father and 

his family members at events such as graduations or gymnastics performances. 

Mother also testified regarding "extra time" Father would get, explaining 

"[o]ccasionally if there was a birthday party or, like, when one of the cousins had 

a birthday party or his family members or if there is a church activity," she 

accommodated those events and let the children stay the extra night at Father's 

home until Monday morning. 

To be fair, there is evidence Mother may have told Daughter 1 she was not invited 

to a cousin's birthday party when Daughter 1 was, in fact, invited. Still, the record 

illustrates Father has a large extended family with many cousins living nearby. We 
 

agree with the family court that scheduling conflicts are inevitable when children 

are splitting time between multiple homes. 

Camp Cherokee 

In the summer of 2016, both Mother and Father attempted to pick the children up 

from a summer camp. The GAL believed, and we agree, that both parties knew 

they disagreed over who would be picking up the children and that both parties 

nevertheless drove to the camp and knew there would be an argument. Father 

argues the pickup day was one of his days per the parties' written agreement and he 

never agreed to deviate from that agreement. Mother asserts that both Father and 

his attorney refused to respond to Mother's questions about the pick-up. 

We agree the evidence suggests both parties bear fault for this incident and that the 

incident does not materially affect the outcome of the issues in question. 

Day Care Expenses 

The family court found Mother incurred an average of $60 per month in child care 

expenses. Father asserts the child support guidelines, when properly applied, call 

for his child support to be roughly $40 lower per month when day care expenses 

are adjusted to account for any qualified child care tax credits. 

This argument was not presented to the family court and we may not consider it 

here. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 421–22, 526 S.E.2d 

716, 724 (2000). In Father's motion for the family court to reconsider its decision, 

Father argued the evidence did not establish Mother had $60 per month of 

work-related day care expenses. He did not argue the family court failed to 

properly account for those expenses under the child support guidelines. 

Payment Through Clerk of Court 

Father does not agree with the family court's ruling that "[d]ue to the history of 

conflict between the parties regarding whether [Father] has paid timely, payments 

shall be made through the Office of the Clerk of Court for York County. The 

record shows there is a history of conflict and arguments over child support. The 

family court's decision avoids further disputes about these payments. 

Surveillance 

Father argues Mother did not seek specific relief regarding surveillance and notes 

he objected to any testimony regarding his surveillance of Mother. 
 

 

The family court allowed testimony about surveillance because it believed the 

testimony might shed light on the parties and how they interacted with each other. 

The record re-enforces the wisdom of that decision. The GAL expressed concern 

about the negative relationship between the parents, including Father's regular 

practice of recording his conversations with Mother. The surveillance and 

recording practices were an issue with children as well as with Mother. The family 

court noted Father's continued investigation into Mother was inconsistent with his 

stated goal of having a positive parenting relationship with her. This is 

overwhelmingly supported by the record. 

To sum, Father has not demonstrated any errors that justify modifying or 

remanding this case. 

ATTORNEY'S FEES 

Father argues that Mother failed to properly plead a claim for attorney's fees and 

that the family court did not correctly apply the factors relevant to an award of 

fees. 

Mother specifically requested attorney's fees in her complaint. The sixth numbered 

paragraph in Mother's complaint was titled "Attorney Fees and Suit Money" and 

reads, in its entirety, "Plaintiff has a meritorious cause of action. The Plaintiff 

requests attorney's fees for having to prosecute this action." 

We are not aware of any authority suggesting this pleading was deficient. Father 

cites Anderson v. Tolbert1

 and E.D.M. v. T.A.M.2 Neither case supports the 

proposition that a party in a family court case must plead more than this to state a 

claim for an award of fees. It also bears mentioning that attorney's fees were 

plainly identified during the pre-trial hearing as an issue for trial and there was no 

objection to any claim for fees until the trial began. 

When determining whether an attorney's fee is proper, the court considers "(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; (4) effect of the 

attorney's fee on each party's standard of living." E.D.M. v. T.A.M., 307 S.C. 471, 

476–77, 415 S.E.2d 812, 816 (1992). The amount of fees is determined by: "(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) 

1

 322 S.C. 543, 473 S.E.2d 456 (Ct. App. 1996). 

2

 307 S.C. 471, 415 S.E.2d 812 (1992). 
 

beneficial results obtained; (6) customary legal fees for similar services." 

Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). 

Father disagrees with the family court's findings that Mother had less ability to pay 

her own attorney's fees, that Mother was the prevailing party, and that many of 

Father's complaints were exacerbated by his own negative conduct. 

We respectfully disagree with these arguments. Father's financial situation is 

superior to Mother's. We agree he can afford to pay Mother the amount awarded. 

We also agree Mother was the prevailing party. Mother brought this case for the 

purpose of modifying child support and succeeded in that endeavor. Mother also 

prevailed on Father's claim to adjust the parenting plan and child support in his 

favor. The record amply supports the family court's decision requiring Father to 

pay Mother $20,000 of the roughly $44,000 in fees she incurred. 

CONCLUSION 

Based on the foregoing, the family court's judgment is 

AFFIRMED.3 

LOCKEMY, C.J., and GEATHERS, J., concur. 

3

 We decide this case without oral argument pursuant to Rule 215, SCACR.