THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Wendy Grungo-Smith, Respondent,

v.

Joseph Grungo, Appellant.

Appellate Case No. 2020-000934

Appeal From York County

Thomas Henry White, IV, Family Court Judge

Opinion No. 5969

Heard November 16, 2022 – Filed February 10, 2023

REVERSED

John Brandt Rucker and Allyson Sue Rucker, both of 

The Rucker Law Firm, LLC, of Greenville, for 

Appellant.

James R. Honeycutt, of Fort Mill, and James B. 

Richardson, Jr., of Columbia, both for Respondent.

LOCKEMY, A.J.: Wendy Grungo-Smith (Mother) appeals an order from the 

family court awarding primary custody of Child 1 and Child 2 (collectively, 

Children) to Joseph Grungo (Father) and granting an award of child support to 

Father. We reverse.

FACTS/PROCEDURAL HISTORY

In 2012, Mother and Father divorced. Pursuant to a court-approved agreement, the 
parties were to share joint custody of Children; specifically, a 5-2-2-5 schedule. 

The divorce decree provided, among other things, that (1) if one parent had 

Children for more than fifty percent of the time, the other parent would "contribute 

to the support and maintenance of Children"; (2) Children would be enrolled in any 

private school agreed to by each party; and (3) each party would abstain from 

using profanity or making derogatory comments about the other party and ensure 

others would not make such comments in Children's presence. 

In March 2019, Mother filed a custody modification action, asserting Father failed 

to "take advantage of shared visitation." She sought sole custody of Children, 

standard visitation for Father, and child support. Father filed an answer and 

counterclaim seeking essentially the same relief in his favor and alleging numerous 

changes in circumstances. 

At the June 2020 trial, Mother testified Children were eleven and twelve years old. 

Mother testified she had two jobs and worked during weekdays, every other 

weekend, and at night, from home, after Children went to sleep. She explained 

Father never exercised his full custody time, even though she and her husband, 

Kenneth Smith (Stepfather) did not prevent him from doing so. Mother stated she

had moved five or six times since the parties' divorce and each move was to a

larger home or closer to Children's school. Mother testified she moved into her 

current home, which was twenty minutes or twenty-two miles from Father, shortly 

before trial and was required to live there for fifteen years as a condition of her

loan. She stated her current home was closer to Father than her previous home,

and the longest Father ever had to travel to her home was thirty-five minutes, 

assuming there was no traffic. Mother testified Children behaved well and 

excelled physically, mentally, socially, and academically. Mother indicated

Stepfather was a father figure to them, and neither she nor Stepfather spoke badly 

of Father to Children or discouraged their relationship with him. She stated that 

although she and Stepfather argued like normal married people, they discussed 

their issues outside Children's presence. 

Stepfather testified Mother was Children's primary caretaker, and neither he nor 

Mother discouraged Children from having a relationship with Father. He stated 

although no one prevented it, Father never utilized all of his allotted custody time. 

However, he acknowledged Father recently visited Children more often because 

they were out of school. 

Father testified he had lived in Fort Mill for the past thirteen years and owned his 

own business. He admitted he occasionally missed Monday and Tuesday 

overnight visits but explained he usually took Children to dinner on those nights. 
He testified he did not exercise his full custody time because of his work schedule 

and traffic. Father testified he provided only $1,200 to Mother during the year 

prior to trial. Father acknowledged he could have taken Children to school earlier 

or modified his work hours and further acknowledged that neither Mother nor 

Stepfather prevented him from exercising his custody time. He averred Mother's 

moves had a negative effect on his ability to spend time with Children because of 

his commute to pick up Children and drop them off at school. Accordingly, he 

requested primary custody of Children so they could go to school in Fort Mill. 

On cross-examination, Father credited Mother for Children's academic success. 

He admitted the divorce decree did not prevent either party from moving and it 

required the parties to share Children's expenses equally. Father also admitted he 

never tried to legally enforce the school provision. 

Several additional witnesses testified about Mother, Father, and Children. Gwen 

Catron, Children's maternal grandmother, testified Mother was a loving mother, 

Stepfather was a good father-figure, and Father was a good dad. John Willfong, a 

former administrator from Children's school, testified he believed Children 

excelled academically due, in part, to Mother's involvement in their education. 

The guardian ad litem (Guardian), testified she conducted five in-person visits with 

Children and spoke to them five or six additional times on the phone, with the last 

occurring on the day of trial. She testified she was welcomed at Mother's and 

Father's homes, and both parties were cooperative throughout her investigation. 

The Guardian stated Children indicated Mother and Stepfather yelled and fought a 

lot in front of them and belittled Father to them. The Guardian testified Children 

told her Mother put oil on their heads to "be blessed" before they spoke to her and 

so they would not say anything negative about her to the Guardian. She stated that 

at Mother's home, Children were "much more uptight," appeared "very nervous," 

whispered to her so no one would overhear them, and requested to go to their 

bedrooms for the visits. She also stated that during one visit, Child 1 showed her 

videos of Mother and Stepfather arguing. The Guardian testified that at Father's 

home, Father let her speak to Children privately and Children appeared very

relaxed. She stated Children loved both parents, did not want to be torn between 

the situation, and were credible. The court requested the Guardian provide a 

recommendation because "of the disparity in the testimony before [it] today" and 

that neither party provided "a middle ground." Upon the court's request, the 

Guardian stated she believed Father would be the better suited custodial parent 

based on the information provided by Children.

In her written report, the Guardian stated Children were happy, well-mannered 
children and were always willing to speak with her, regardless of whether they 

were at Mother's home or Father's. However, she stated they told her they felt 

comfortable at Father's home and liked his home better because there was "so 

much peace" and no "stress." She indicated Children told her that at Mother's 

house, they performed most of the chores and watched their sibling and other 

children Mother babysat. The Guardian also reported Mother gave her videos of

visitation exchanges, which showed Mother telling Father not to come close to her 

car and Children appearing stressed. She stated she had not found any reason to 

believe Father was a threat to Mother. 

The family court found Father showed a material change in circumstances to 

warrant a change of custody and such change was in Children's best interests. It 

stated Father admittedly did not exercise his full custody time. However, it found 

the parties initially lived twenty to thirty minutes of each other but after Mother's

changes in residences, Father's home was forty-five minutes to an hour away. It 

found Children had changed schools six times and a daily commute for Father 

rendered the parenting plan "extraordinarily" difficult. The court determined

Mother did not consult with Father about any of her moves or obtain Father's 

agreement before selecting Children's schools and concluded Mother's moves and 

Children's schools were not conducive to the 5-2-2-5 parenting plan. 

The family court found although Mother and Stepfather denied it, Children told the 

Guardian that Mother and Stepfather argued in front of them and called Father 

disparaging names, which impeached Mother's and Stepfather's credibility and lent 

credence to Father's allegations. It acknowledged Children told the Guardian they

loved both parents; however, it found Children also told the Guardian they liked 

Father's home better because there was "so much peace" and no arguing or stress. 

The family court determined Children showed the Guardian videos of Mother and 

Stepfather arguing and told the Guardian they could not speak to her on the phone 

because they were at Mother's home. It further noted the Guardian recommended 

Father be granted custody. Accordingly, the family court granted Father's request 

for sole custody and awarded him child support. This appeal follows. 

ISSUE ON APPEAL

Did the family court err in awarding custody of Children to Father?

STANDARD OF REVIEW

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

Whitesell v. Whitesell, 431 S.C. 575, 584, 848 S.E.2d 588, 592 (Ct. App. 2020). 
"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." Id. 

LAW/ANALYSIS

Mother argues the family court erred in awarding custody of Children to Father. 

She asserts the evidence showed Children were thriving in her care and all parties 

agreed Children were exceptional. We agree.

"The paramount and controlling factor in every custody dispute is the best interests 

of the children." Brown v. Brown, 362 S.C. 85, 90, 606 S.E.2d 785, 788 (Ct. App. 

2004). In modifying a custody order, the family court must consider the children's

best interests and other statutory factors. S.C. Code Ann. § 63-15-240(B) (Supp. 

2022). 

"In order for a court to grant a change in custody, there must be a showing of 

changed circumstances occurring subsequent to the entry of the [custody order]." 

Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004). "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 children would be served by the change." Id. (quoting Stutz v. Funderburk, 272 

S.C. 273, 278, 252 S.E.2d 32, 34 (1979)). "[T]he change of circumstance relied on 

for a change of custody must be such as would substantially affect the interest and 

the welfare of the child, not merely the parties, their wishes or convenience." 

Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct. App. 2000)

(quoting Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971)).

We hold the family court erred in awarding Father custody because Father did not

establish a substantial change in circumstances. First, we find the record did not 

show a change in circumstances sufficient to modify the custody order. During 

trial, Father admitted, among other things, that: he failed to take advantage of his 

shared visitation blaming his failure on his work schedule and traffic; he never had 

Children in his care for more than fifty percent of the time and failed to provide for 

them financially pursuant to the joint custody agreement; he did not take Children 

to school because it interfered with his work schedule, yet acknowledged he could 

have taken Children to school earlier or modified his work hours; neither Mother 

nor Stepfather prevented him from exercising his custody time and he praised 

Children's academic success and credited Mother for it; and the divorce decree did 

not prevent either party from moving, he never tried to enforce the school 
provision, and the divorce decree required the parties to share Children's expenses 

equally. 

On the other hand, the evidence and testimony demonstrate that Children behaved 

well and excelled physically, mentally, socially, and academically while under 

Mother's predominant care while she worked two jobs, working during the 

weekdays, every other weekend, and remotely at night after Children went to sleep. 

She moved five or six times to a larger home or closer to Children's school. 

Several witnesses, including Children's former school administrator, testified 

Children were well-adjusted, great kids, Mother was a good mom, and Children's 

academic success was due in part to Mother's involvement in their education. See

§ 63-15-240(B)(1-2), (10-11) (stating that when modifying a custody order, the

court should consider "the temperament and developmental needs of the child;" 

"the capacity and the disposition of the parents to understand and meet the needs of 

the child;" "the child's adjustment to his or her home, school, and community 

environments;" and "the stability of the child's existing and proposed residences"). 

Second, we find the family court erred in concluding Mother's moves and 

Children's schooling arrangements were not conducive to the parenting plan

because she did not consult Father. Rather, we find each move was in the best 

interests of Children. See § 63-15-240(B). Mother testified she moved into a 

larger home each time or was closer to Children's school and that she was required 

to live in her current residence for fifteen years as a condition of her loan.

Further, we conclude the family court erred by finding that the moves and changes

in schools were not conducive to the current parenting plan because the record did 

not support such a finding. Rather, the 5-2-2-5 plan was not in practice because 

Father did not exercise his full custody rights and Mother had custody of Children 

more than fifty percent of the time. Additionally, though the divorce decree 

provided that if one parent had Children for more than fifty percent of the time, the 

other parent would "contribute to the support and maintenance of Children," Father 

testified that for the year prior to trial, he only contributed $1,200 while Children 

were in Mother's care.

We express our concern with the family court requesting a recommendation from 

the Guardian because it should have only requested a recommendation in 

extraordinary circumstances, which were not present in this case. We are also 

concerned with the family court's heavy reliance on the Guardian's report and 

testimony in its findings because a family court should determine the best interests 

of Children after considering all the evidence presented at trial. See Pirayesh v. 

Pirayesh, 359 S.C. 284, 296, 596 S.E.2d 505, 512 (Ct. App. 2004) ("Rather than 
merely adopting the recommendation of the guardian, the court, by its own review 

of all the evidence, should consider the character, fitness, attitude, and inclinations 

on the part of each parent as they impact the child as well as all psychological, 

physical, environmental, spiritual, educational, medical, family, emotional and 

recreational aspects of the child's life."); Shirley, 342 S.C. at 339, 536 S.E.2d at

435 ("The role of the [Guardian] in making custody recommendations is to aid, not 

direct, the court. Ultimately, the custody decision lies with the trial judge."). At 

oral arguments, Father's counsel only pointed to the family court's determination 

that the 5-2-2-5 plan was rendered difficult to follow, but was unable to identify 

any other findings in the family court's order establishing a change in 

circumstances favoring Father that derived from something other than the 

Guardian's testimony and report.

Father did not present evidence of a substantial change in circumstances. Under 

Mother's care, Children were well-mannered and excelled academically and 

socially. Additionally, any changes did not adversely affect Children's well-being 

and no issues were reported as to their welfare. See Latimer, 360 S.C. at 381, 602 

S.E.2d at 35 ("The change of circumstances relied on for a change of custody must 

be such as would substantially affect the interest and welfare of the child."). 

However, this appeal derives from Mother's custody modification action and 

Father's counterclaim. As such, both Mother and Father were required to show

sufficient facts demonstrating a substantial change in circumstances warranting a 

change of custody in the best interest of Children. Id. 

While the testimony and evidence demonstrate that Children excelled under 

Mother's predominant care, it also demonstrates that Father was a factor in this 

success and a positive influence. Witnesses testified that Father was a good dad 

and saw Children at least once or twice a week; he took Children to dinner and 

spent time with them every other weekend; he demonstrated proactive effort to 

spend time with Children and participate in their lives; he withheld any disparaging 

remarks about Mother or Stepfather; and evidence from the Guardian indicated 

Father created a peaceful atmosphere where Children felt comfortable. 

Therefore, based upon the ample evidence demonstrating Children's emotional, 

social, and academic success under the original joint custody agreement, both 

parties failed to demonstrate a substantial change in circumstances or that the best 

interests of Children would be served by a change in custody. Accordingly, we 

reverse the family court.

REVERSED.
WILLIAMS, C.J., and THOMAS, J., concurs.