Opinion
20326
December 9, 1976.
Walter Bilbro, Jr., Esq., of Charleston, for Appellant, cites: As to the Trial Judge's having erred in determining that the Respondent-Appellant, Robinson, was the natural father of the two (2) minor children of the Petitioner-Respondent, Johnson and that he should be required to pay child support for them in the sum of Ninety ($90.00) Dollars bi-weekly, when the Pleadings only requested payment of Sixty ($60.00) Dollars bi-weekly, thus denying Robinson adequate notice required by due process of law under the Constitutions of the United States and South Carolina: 312 U.S. 329; 7 S.E.2d 712; 287 U.S. 45; 91 S.E. 307; 138 F. Supp. 661; 237 F. Supp. 404; 42 L.Ed.2d 725; 368 F. Supp. 369 affirmed 94 S.Ct. 2596; 192 S.E.2d 214; 202 S.E.2d 177. As to Respondent's failing to comply with § 10-1506, Code of Laws of South Carolina, 1962, and the rules of equity pleading and practice which require adequate notice, properly pled, of the relief requested: Rule One of Practice and Procedure in the Family Court; 221 S.E.2d 113; 202 S.E.2d 177; 34 S.E.2d 488. As to the Trial Court's having erred in conducting a hearing and taking testimony on important issues in open Court without having any record made of the testimony and proceedings: § 15-1095; § 15-1095.40; Article V, Constitution of the State of South Carolina; Rule Eleven, Rules of Practice and Procedure in the Family Court; Fourteenth Amendment of the United States Constitution; 176 S.E.2d 141. As to the Trial Court's having erred in failing to make a specific finding of the facts on which the Order and Appeal was based, in violation of Rule 13 of the Rules of Practice and Procedure in the Family Court: 211 S.E.2d 555; 181 S.E.2d 13; 194 S.E.2d 392. As to the Respondent-Appellant's being denied due process of law by being required to comply with an Order which was issued February 29, 1972, which according to the record, was prior to the date Robinson was summoned to appear in Court and an alleged Hearing was scheduled to be held: 363 U.S. 420; 42 L.Ed.2d 337; 42 L.Ed.2d 725; 185 S.C. 462, 194 S.E. 868; 106 S.C. 319, 91 S.E. 307; 212 S.E.2d 594.
Darra Williamson Cothran, Esq., of Charleston, for Respondent, cites: As to the Trial Judge's not having erred in determining that the Respondent-Appellant was the natural father of two minor children of the Petitioner-Respondent and in ordering child support for the children since the Appellant had adequate notice of the proceedings: 16 Am. Jur.2d, Constitutional Law, § 549; Vol. 15, p. 73, Cumulative Supplement to 1962 Code; South Carolina Code § 20-303; 254 S.C. 207, 174 S.E.2d 753; S.C. Code § 15-1095.24; § 15-1095.27; § 15-1095.29; 10 Am.Jur.2d Bastards § 90; 128 Ga. App. 218, 196 S.E.2d 183; 237 S.C. 532, 118 S.E.2d 171; 263 S.C. 624, 216 S.E.2d 541. As to a lack of error in determining that the Respondent-Appellant, Robinson, was the father of two minor children of the Petitioner-Respondent, and in ordering child support for the children in the amount of Ninety ($90.00) Dollars bi-weekly, as there was no failure to comply with Section 10-1506, Code of Laws of South Carolina, or equity pleading and practice rules: 225 S.E.2d 849; 264 S.C. 624, 216 S.E.2d 541; § 10-1506 of the S.C. Code of Laws; 253 S.C. 296, 170 S.E.2d 372; 221 S.E.2d 113; 262 S.C. 62, 202 S.E.2d 177; 207 S.C. 63, 34 S.E.2d 488; 27 N.C. App. 134, 219 S.E.2d 194. As to the Family Court Judge's not having erred in conducting a hearing and taking testimony without having a record made of the testimony and proceedings: S.C. Code § 15-1095.1; S.C. Code § 15-1095.10; 92 Va. 794, 23 S.E. 784; 6 Hill, N.Y., 590; 8 Met., Mass., 168; 254 S.C. 501, 176 S.E.2d 141; South Carolina Code § 15-1901 and § 15-605; 131 S.C. 357, 127 S.E. 439; 232 Ga. 381, 207 S.E.2d 22; 268 N.C. 415, 150 S.E.2d 764. As to the Trial Judge's having made sufficient findings of fact in the Order in accordance with Rule 13 of the Rules of Practice and Procedure of the Family Court: Rule 13 of the Family Court Rules; 263 S.C. 509, 211 S.E.2d 555; 181 S.E.2d 13; 260 S.C. 108, 194 S.E.2d 392. As to the Respondent-Appellant's not having been denied due process of law by being required to comply with an order dated February 29, 1976 since the order was dated incorrectly on March 29, 1976 and Respondent-Appellant was not prejudiced thereby: 47 Am.Jur.2d Judgments, § 207; S.C. Code, § 10-1214.
December 9, 1976.
Deloris Johnson, respondent, filed her petition in the Charleston Country Family Court, stating that Richard Robinson, the appellant, was the father of her two children and reciting that he had admitted the paternity to his own parents. She alleged that he had been contributing forty-five dollars ($45.00) every two weeks for their support. The prayer for relief asked the court to direct him to pay sixty dollars ($60.00) biweekly.
The respondent and the appellant appeared in court without an attorney. The petition had been drawn by a court employee. No return was filed by the appellant, and no record was made of the proceedings.
The judge issued his order, declaring the appellant to be the father of the two children and ordering the appellant to pay ninety dollars ($90.00) biweekly, which was thirty dollars ($30.00) more than the prayer for relief in the petition.
Thereafter, both parties employed counsel. This appeal ensued.
The appellant alleges that the court erred in granting more relief than was sought, in failing to make up a record sufficient to enable this Court to review the lower court order, and in failing to set out the salient facts upon which the relief is granted, as required by Rule 13 of the Rules of Practice and Procedure in the Family Court.
We are of the opinion that all exceptions must be sustained. The case is remanded to the Family Court of Charleston Country for the purpose of hearing the matter de novo, with leave to the respondent to amend her petition and leave to the appellant to file a return.
Reversed and remanded.
LEWIS, C.J., and NESS, RHODES and GREGORY, JJ., concur.