Davis v. Holloway

265 S.E.2d 264, 274 S.C. 500, 1980 S.C. LEXIS 342

Opinion

Ness, Justice:

Appellant Sandra Ruth Davis appeals from an order declaring respondent Sammy Holloway not to be the father of her four year old child. We reverse.

After appellant testified, the family court dismissed her petition on its own motion. Since this is an action in equity heard by the family court judge alone, we review the record to determine the greater weight of the evidence. Jones v. Jones, 270 S. C. 280, 241 S. E. (2d) 904 (1978); Wood v. Wood, 269 S. C. 600, 239 S. E. (2d) 315 (1977).

The only evidence presented at trial were the results of a blood test and appellant’s testimony. The blood test did not exclude respondent as the child’s father. Appellant testified she had not had sexual relations with anyone other than respondent and he, while never admitting paternity, had not denied it when confronted.

We hold this evidence made out a prima facie case of paternity and shifted the burden of proof to respondent. Since the family court’s dismissal of the action on its own motion prevented him from presenting his case, we reverse and remand for a new trial.

Reversed and remanded.

Lewis, C. J., and Littlejohn, Gregory and Harwell, JJ., concur.