Opinion
16057
March 8, 1948.
Appeal from Common Pleas Circuit Court of Chesterfield County; J. Woodrow Lewis, Judge.
Habeas corpus proceeding by Martha Griffin Morris and James Wilson Morris against Sanford Donahue to recover custody of a minor child. From an adverse judgment, the defendant appeals.
Case remanded for trial de novo for purpose of completing record.
Mr. George K. Laney, of Chesterfield, for Appellant, cites: As to the best interest of a child being the paramount issue in an action for award of custody: 25 S.E.2d 745, 202 S.C. 530; 26 S.E.2d 20, 203 S.C. 41; 109 S.E. 114, 117 S.C. 307; 32 S.E. 448, 54 S.C. 388, 44 L.R.A. 277; 103 S.E. 535, 114 S.C. 295; 51 S.E. 269, 72 S.C. 16. As to the choice of the child being given great weight by the court in determining who shall have custody of the child: 2 Hill 363; 6 Rich. 344; 107 S.E. 742, 130 Va. 302; 54 S.E. 775, 74 S.C. 546.
Messrs. James E. Leppard and Wm. P. Gulledge, of Chesterfield, for Respondents.
March 8, 1948.
This appeal comes to this Court from a habeas corpus proceeding instituted in the Court of Common Pleas for Chesterfield County where the case was heard at chambers by the Honorable. J. Woodrow Lewis upon the petition and answer, with certain affidavits submitted by both parties, and oral testimony given by other witnesses, as a result of which His Honor passed his Order awarding the custody of Byron Belk Autry, a minor child approximately seven years of age, to the respondents. This appeal now comes to this Court upon exceptions which raise several questions.
A study of the Judge's Order reveals that he gave great weight to the testimony presented at the time, but the record presented to this Court discloses only the petition and answer and the supporting affidavits filed at the time of the hearing, and is therefore incomplete. At the time of oral argument, counsel stated that the proceedings were very informal and the rules of Court not strictly adhered to by reason of agreement between counsel. "Neighborhood justice" may be convenient and effective upon occasion when counsel is in accord, but where an appeal is taken, this Court can only act upon such matters as are contained in the record. The question of custody of minor children is always one of grave concern to the Courts, and we are unwilling to accept such responsibility without a full and complete record.
The case is therefore remanded to the Court of Common Pleas for Chesterfield County with instructions that it be tried de novo for the purpose of completing the record.
Remanded.