Barber v. Smith, 2010-UP-157

• Decision Date: 23 February 2010
• Docket Number: 2010-UP-157
• Court: South Carolina Court of Appeals
• Parties: Brian Barber, Appellant, v. Ella Smith and Sheila Eison, Respondents.

Brian Barber, Appellant, v. Ella Smith and Sheila Eison, Respondents.

No. 2010-UP-157

Court of Appeals of South Carolina

February 23, 2010

UNPUBLISHED OPINION

Submitted February 1, 2010

Appeal From Union County Richard W. Chewning, III, Family Court Judge.

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...