Nelson v. Brooks

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

Eric Nelson, Appellant,

v.

Tonya Kennon Brooks f/k/a Tonya Kennon, Respondent.

Appellate Case No. 2014-000259

Appeal From Charleston County
Jocelyn B. Cate, Family Court Judge

Unpublished Opinion No. 2015-UP-422
Submitted July 1, 2015 – Filed August 12, 2015

AFFIRMED

Robert Lee Gailliard, of Robert L. Gailliard, Attorney at
Law, of Charleston, for Appellant.

James Kristian Falk, of Falk Law Firm, LLC, of
Charleston, for Respondent.

Elizabeth J. Stringer, of Stringer & Stringer, of
Charleston, Guardian ad Litem.
PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities:

1. The family court did not err in finding it would be in the child's best interest to
award the parties joint custody with Tonya Kennon Brooks as the primary
custodial parent. See Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666,
667 (2011) ("In appeals from the family court, this [c]ourt reviews factual and
legal issues de novo."); Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655
(2011) ("[W]hile retaining the authority to make our own findings of fact, we
recognize the superior position of the family court judge in making credibility
determinations." (footnote omitted)); Simcox-Adams v. Adams, 408 S.C. 252, 259-
60, 758 S.E.2d 206, 210 (Ct. App. 2014) ("The burden is upon the appellant to
convince the appellate court that the preponderance of the evidence is against the
family court's findings."); Lewis, 392 S.C. at 388–89, 709 S.E.2d at 654 ("Stated
differently, de novo review neither relieves an appellant of demonstrating error nor
requires us to ignore the findings of the family court." (italics omitted)); Brown v.
Brown, 362 S.C. 85, 95, 606 S.E.2d 785, 790 (Ct. App. 2004) ("[T]he [child's] best
interests—not the [child's] preference—is the cardinal determination in custody
decisions.").

2. This court does not have an adequate record to review whether the family court
erred in not finding the guardian ad litem violated the standard of impartiality by
displaying a bias for Brooks over Eric Nelson: The record does not contain a
transcript from the hearing on Father's motion to relieve the GAL; thus, Nelson has
not provided this court an adequate record to review the family court's decision.
See Schultze v. Schultze, 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013)
("[T]he appellant bears the burden of providing a record on appeal sufficient for
intelligent review and from which an appellate court can determine whether the
[family] court erred."); id. ("For this court to evaluate the merits of a disputed
issue, the appellant must provide the court with a sufficient record pertaining to
that issue; otherwise, there is nothing for this court to review.").

3. The family court did not err in prohibiting Nelson from exercising overnight
visitation with the child at the residential care facility. The family court made
several findings to support its decision, and those findings are supported by the
record. Nelson has not persuaded this court that a preponderance of the evidence is
against the family court's findings. See Wilburn v. Wilburn, 403 S.C. 372, 380, 743
S.E.2d 734, 738 (2013) (noting the de novo standard of review "does not relieve
the appellant of the burden of identifying error in the family court's findings" and
"the decision of the family court will be upheld unless [this court] finds that a
preponderance of the evidence weighs against the family court's decision").

4. Nelson's argument that the family court erred in requiring Nelson to pay the
balance of the guardian ad litem's fees is not preserved. See Buist v. Buist, 401
S.C. 569, 574, 766 S.E.2d 381, 383 (2014) ("It is well settled that an issue cannot
be raised for the first time on appeal, but must have been raised to and ruled upon
by the [family] court to be preserved."); id. at 576-77, 766 S.E.2d at 384-85
(holding a motion to reconsider constitutes a timely challenge to a fee award but
finding the husband failed to preserve his argument when his motion to reconsider
was not sufficiently specific); Dodge v. Dodge, 332 S.C. 401, 418, 505 S.E.2d 344,
352-53 (Ct. App. 1998) ("The father's argument regarding the amount of the
guardian ad litem's fee is not preserved for appeal inasmuch as the father failed to
specifically raise the issue in his Rule 59(e), SCRCP, motion for
reconsideration.").

AFFIRMED.1

SHORT, LOCKEMY, and MCDONALD, JJ., concur.

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