THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James Whitney Powell, Respondent,

Carol Ann Hemelt, Appellant.

Appeal From York County
Brian M. Gibbons, Family Court Judge
Alvin D. Johnson, Family Court Judge
Henry T. Woods, Family Court Judge
Robert E. Guess, Family Court Judge

Unpublished Opinion No. 2008-UP-246
Submitted April 1, 2008 – Filed April 28, 2008

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Carol Ann Hemelt, of Tega Cay, pro se.

Michael Benjamin Smith and Thomas F. McDow, both of Rock Hill, for Respondent.

PER CURIAM: In this domestic action, Carol Ann Hemelt (Mother) appeals various family court orders finding her in contempt and changing custody. We affirm in part, reverse in part, and remand.[1]

FACTS

James W. Powell (Father) and Mother were married on February 7, 1992. One son (Child) was born of this marriage. Mother and Father separated on April 16, 1994, and in October 1994, Father moved to Houston, Texas, for employment. The couple was divorced pursuant to a 1995 North Carolina order. When the marital litigation commenced, Child was one year old. Child is now fourteen.

Father moved to Texas while the divorce action was pending and traveled to Charlotte by airplane every other weekend to spend three days with Child. In the original child custody order, both Mother and Father were found to be fit and proper parents, and the court granted primary custody to Mother with liberal visitation to Father. Shortly after the issuance of the divorce decree, Mother and Child moved to Tega Cay, South Carolina.

In 2003, Father moved before the North Carolina court for modification of the original custody order, requesting Child be allowed to fly unaccompanied for weekend and holiday visitations. Mother, not present at the modification hearing, previously expressed opposition for airplane travel other than for holiday and summer visitation. On May 21, 2003, the North Carolina court granted Father’s motion for modification of visitation on the ground that Child was attending school and the prior visitation schedule was no longer feasible. Furthermore, the North Carolina court found Child was able to fly unaccompanied for visitation.

On March 11, 2004, Father filed a complaint in South Carolina seeking visitation in accordance with the North Carolina modification order. In the alternative, Father sought custody. On May 21, 2004, the family court issued a temporary order finding it was in Child’s best interest for Father to receive visitation according to the North Carolina order.

In November 2005, the family court, pursuant to contempt proceedings filed by Father, issued a temporary/contempt order finding Mother in contempt of the previous order because of her willful failure to comply with the visitation schedule. The parties eventually reached an agreement, which the family court approved by order dated September 22, 2006.

On October 6, 2006, Mother moved to vacate the order approving the parties’ agreement, claiming she was under duress at the hearing. On March 9, 2007, however, the family court issued a rule to show cause against Mother pursuant to a motion by Father and a verified complaint on his behalf seeking enforcement of the September 22, 2006 order and other relief.

A hearing on Mother’s motion to vacate the September 22, 2006 order took place on March 12, 2007. Neither party appeared; however, their respective attorneys and the guardian ad litem were present. By order dated May 17, 2007, and filed May 23, 2007, the family court dismissed the motion and denied Mother’s request for a new trial. Pursuant to Rule 11, SCRCP, the family court also sanctioned Mother and assessed fees and costs against her.

On May 17, 2007, the family court held a hearing on the rule to show cause. Although Mother was served with the rule and other pertinent documents and filed a responsive pleading, she did not appear at the hearing. The day following the hearing, the family court issued an order in which it found Mother in contempt and ordered her to be confined for a period of one year, subject to provisions under which she could purge herself of contempt. Furthermore, although Father did not seek custody in his rule to show cause, the family court, pursuant to its emergency protective custody powers, ordered the Department of Social Services to take Child into emergency protective custody and directed that Child be placed with Father following an expedited home study of Father’s home. The family court further ordered that “once [Mother] is arrested pursuant to this order, . . . [Father] shall be granted custody of [Child] regardless of the status of the home study.” Mother subsequently filed unsuccessful motions to stay, vacate, and reconsider this order. This appeal followed.[2]

STANDARD OF REVIEW

“In appeals from the family court, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence.” Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). “This broad scope of review, however, does not require the appellate court to disregard the findings of the family court.” Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). Moreover, “[o]ur broad scope of review does not relieve the appealing party of the burden of showing the family court committed error.” Latimer v. Farmer, 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004). The family court abuses its discretion when factual findings are without evidentiary support or a ruling is based upon an error of law. Smith v. Doe, 366 S.C. 469, 474, 623 S.E.2d 370, 372 (2005). Custody decisions are left largely to the discretion of the family court. Kisling v. Allison, 343 S.C. 674, 679, 541 S.E.2d 273, 276 (Ct. App. 2001).

LAW/ANALYSIS

I. Jurisdiction

Mother argues the family court erred in enforcing the modification of visitation by the North Carolina court. We disagree. The South Carolina family court modified the original order, as both parties concede it had jurisdiction to do, rather than enforce the North Carolina order.

A South Carolina family court of this State has jurisdiction to make a child custody determination by initial or modification decree if South Carolina is the home state of the child at the time of the commencement of the proceedings. S.C. Code Ann. § 20-7-788 (1985). Furthermore, a South Carolina family court may modify a custody decree of another state if the following criteria are met:

(1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdic