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2010-UP-318 - Marrero v. Hankins

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

Joyce Marie Marrero, Appellant,

v.

Michael Joseph Hankins, Respondent.


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


Unpublished Opinion No.  2010-UP-318
Submitted June 1, 2010 – Filed June 21, 2010


REMANDED


C. Lawrence Simmons, III, of West Columbia, for Appellant.

Douglas J. Robinson, of Camden, for Respondent.

Danyese Hobbs, of Columbia, for Guardian Ad Litem.

PER CURIAM:  In this custody matter, Joyce Marie Marrero (Mother) appeals the family court order changing a prior court-ordered joint custody arrangement and awarding full custody of the minor son to Michael Joseph Hankins (Father).  On appeal, Mother asserts the family court erred in: (1) issuing its order without findings of fact and conclusions of law; (2) continuing custody with Father; (3) issuing a decision where the guardian ad litem failed to issue a written report; and (4) requiring the parties to pay the fee for the guardian ad litem.  We remand to the family court to make specific findings of fact and conclusions of law and to permit arguments by counsel, if requested.[1]

1. While we recognize the preservation concern about the lack of specific findings by the family court, we also recognize that where the best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties.  Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000).  Here, we find remand is appropriate because (1) in order to decide this matter, we must speculate as to the findings that would support the family court's decision to award custody to Father; (2) the attorneys did not make any legal arguments on the record, so we are constrained to rely upon the pleadings; (3) if the family court relied on the temporary order as the framework for the final order, we find our review problematic as the transcript of that hearing is not a part of this record; and (4) the guardian ad litem did not submit a report or testify at the hearing.  See Rule 26(a), SCRFC ("An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision."); In re Treatment & Care of Luckabaugh, 351 S.C. 122, 133, 568 S.E.2d 338, 343 (2002) ("The absence of factual findings makes our task of reviewing the court order impossible because the reasons underlying the decision are left to speculation.") (internal quotation omitted); Atkinson v. Atkinson, 279 S.C. 454, 456, 309 S.E.2d 14, 15 (Ct. App. 1983) ("Proper appellate review is extremely difficult, if not impossible, where a lower court omits specific findings of fact to support its legal conclusions."). 

2.  As to whether the family court erred in assigning precedential value to the temporary order:  Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) ("Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.").

3.  As to whether the family court erred in issuing its decision when the guardian ad litem failed to submit a written report:  Joiner ex rel. Rivas, 342 S.C. at 107, 536 S.E.2d at 374 (finding that where the best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties); S.C. Code Ann. § 63-3-830(A)(6) (2010) (making a guardian ad litem responsible for "presenting to the court and all parties clear and comprehensive written reports, including, but not limited to, a final written report regarding the child's best interest.").  Even though this issue is not properly preserved, because we are remanding for specific findings of fact and conclusions of law, we find it appropriate for the guardian ad litem to prepare the required statutory report for submission into the record prior to the issuance of an order by the family court.

4.  As to whether the family court erred in requiring the parties to split the fee for the guardian ad litem:  S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (holding an issue must have been raised to and ruled upon by the trial judge in order to be preserved for appellate review).

REMANDED.

FEW, C.J., THOMAS, and PIEPER, JJ., concur.


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