Brian Barber v. Ella Smith and Sheila Eison

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals Brian Barber, Appellant, v. Ella Smith and Sheila Eison, Respondents. __________ Appeal From Union County Richard W. Chewning, III, Family Court Judge __________ Unpublished Opinion No. 2010-UP-157 Submitted February 1, 2010 – Filed February 23, 2010 __________ REMANDED __________ Fletcher N. Smith, Jr., of Greenville, for Appellant. David Michael Collins, Jr., and N. Douglas Brannon, both of Spartanburg, for Respondent, Sheila Eison. Joanne Hughes Burkett, of Spartanburg, for Guardian Ad Litem. PER CURIAM: In this custody action, Brian Barber appeals the family court's award of custody of his minor child (Child) to Child's maternal aunt, arguing the family court erred in awarding custody to a nonparent without making a finding Barber was unfit. We remand[1] to the family court for a determination of Barber's fitness and for specific findings of fact. In an appeal from the family court, an appellate court may correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Semken v. Semken, 379 S.C. 71, 75, 664 S.E.2d 493, 496 (Ct. App. 2008). This standard of review does not require the appellate court to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008). In particular, an appellate court should be reluctant to substitute its own evaluation of the evidence on child custody matters for that of the family court. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). In contemplating a change of custody, the family court must examine the effect the change would have upon the child: The paramount and controlling consideration in a custody dispute is the best interests of the child. The family court must consider the character, fitness, attitude, and inclinations on the part of each parent as they affect the child. Psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects of the child's life should also be considered. In sum, the totality of circumstances unique to each particular case constitutes the only scale upon which the ultimate decision can be weighed. In order for a court to grant a change in custody, the moving party must demonstrate changed circumstances occurring subsequent to the entry of the order in question. 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. 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. Spreeuw v. Barker, 385 S.C. 45, 59-60, 682 S.E.2d 843, 850 (Ct. App. 2009) (internal citations and quotes omitted); see also Moore v. Moore, 300 S.C. 75, 79-80, 386 S.E.2d 456, 458 (1989) (enunciating the factors a family court must evaluate in making custody determination between a parent and a nonparent). An appellate court reviewing a custody determination has authority to find facts in accordance with its own view of the preponderance of the evidence. Gandy v. Gandy, 297 S.C. 411, 414, 377 S.E.2d 312, 314 (1989). However, this scope of review does not enable the appellate court to overlook the requirements of Rule 26, SCRFC, which directs the family court to "'set forth the specific findings of fact and conclusions of law to support the court's decision.' The failure of a decree to adequately comply with Rule 26(a) constitutes reversible error." Id. (internal citations omitted); see also Hogan v. Platts, 312 S.C. 1, 4, 430 S.E.2d 510, 511 (1993) (requiring remand where family court's order awarding custody to child's aunt and uncle following mother's death omitted any finding concerning father's fitness for custody). Our supreme court's decisions in similar matters have made it clear an appellate court does not have the authority to substitute its own findings of fact where the family court failed to rule on whether a parent was fit to have custody. See, e.g., Gandy, 297 S.C. at 414, 377 S.E.2d at 314; Hogan, 312 S.C. at 4, 430 S.E.2d at 511. Here, the family court awarded Eison custody and Barber unsupervised visitation but made no finding Barber was unfit to have custody of Child. Absent such a determination, it would be inappropriate for this court to make its own findings of fact on this issue. Rather, we are required to remand this matter to the family court for a determination of Barber's fitness and for specific findings of fact supporting the family court's decision. REMANDED. PIEPER and GEATHERS, JJ., and CURETON, A.J., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.