In Camp, the mother and father were already divorced. Later the son began attending USC. The divorce decree did not address college tuition. Mother and son successfully sued father for seventy percent of the tuition and expenses. Father filed a motion to reconsider:

PLEASE be advised that the Defendant through his undersigned attorney, will move before the Honorable David Sawyer, Jr., to reconsider the ruling in his Order dated July 26, 2006, in awarding Plaintiff, William James Camp’s college expenses and costs.

This motion hearing is set to be heard on the 18th day of October, 2006, at 3:45 o’clock, p.m.

Please be present to defend if so minded.

That was it. That was the entire motion. Not surprisingly, the family court denied father’s motion. Father appealed.

It is important to look at the timeline for father’s motion and appeal. He filed the motion to reconsider on time. He filed the appeal on time. The appeal was filed within thirty days of the family court’s denial of the motion. Unfortunately, it was filed over three months after the original order. Mother argued the motion didn’t comply with the Rule 7, South Carolina Rules of Civil Procedure and therefore, it shouldn’t toll the time for filing the appeal. The court of appeals agreed and dismissed the appeal as untimely.

The South Carolina Supreme Court first noted that the case raised a novel question, then cited federal court jurisprudence in its analysis and then reversed. Here is the analysis.

Rule 7, SCRCP requires that motions “shall state with particularity the grounds therefor.”  According to the opinion, the particularity requirement is flexible for each case and should not be applied in an overly technical manner. The policy of the rule is to prevent prejudice and to allow the court to consider the motion fairly. That was done in this case according to the opinion.

Justice Waller dissented. He quoted from the Court of Appeals opinion:

Our rules clearly state the requirements for motions and for appeals.  Permitting a post-trial motion that identifies neither the grounds on which it relies nor the relief sought to stay the time for appeal under Rule 59(e), SCRCP, would undermine our procedural rules.  Moreover, it would encourage parties to file baseless post-trial motions with the expectation of “filling in the blanks” at a later date.

He went on to add the following concerning the Majority’s conclusion:

[I]t will create unnecessary fact-intensive inquiries by our appellate courts to determine whether parties were – in fact – prejudiced by an insufficient motion.

A novel question has been answered and I guess we can file a motion to reconsider without setting out too many particulars. But I don’t think I would. I will follow up on this in my next post.

I should say the answer is still no. This issue was previously decided in 1989 by the S.C. Supreme Court in Donahue v. Donahue. Because goodwill is personal and because it will depend on the professional, it is speculative and therefore, not part of the marital estate.

The family court in Dickert placed a value on husband’s dental practice and included what it termed “enterprise goodwill.” Husband appealed this decision based on Donahue. The wife argued that the S.C. Supreme Court should follow other jurisdictions that subject “enterprise goodwill” to equitable apportionment.

Chief Justice Toal wrote the opinion and it didn’t include any cases from any jurisdictions recognizing wife’s theory. The opinion, did however, make it clear that because of the intangible nature of the goodwill asset, “enterprise goodwill” is not subject to equitable distribution.

(1) S.C. Code Ann. § 2-19-10(B) (2005) is unconstitutional, and (2) the Judicial Merit Selection Commission’s finding petitioner not qualified to be a family court judge violated the constitution and laws of South Carolina.

The South Carolina Supreme Court granted the petition for original jurisdiction.

In Dawkins, the husband and wife were married for twenty-two years. The family court ordered a 60/40 % equitable division of the marital estate.  The family court attempted to give 60% to wife and 40% to husband, but the award was actually 56% – 44% due to a mathematical error.

Husband appealed the award and the S.C. Court of Appeals agreed with him that the 60/40% equitable division was an abuse of discretion. The court of appeals suggested that a 50/50% split is the appropriate starting point in equitable distribution when dealing with a long-term marriage and remanded the case for a 50/50% division.

The S.C. Supreme Court reversed and reinstated the family court order. According to the opinion, there is nothing wrong with a 50/50% split and it is appropriate in some cases. However, it’s not an abuse of discretion to deviate from it.

The purpose behind case law’s imprimatur of a 50% – 50% division was to foster amicable resolutions in family court matters and provide guidance on what would in effect be a safe harbor in most cases in the division of marital property in a long-term marriage.  Yet what was intended as guidance on an “appropriate” division has seemingly mutated into a mandatory division.

It is interesting to note that the S.C. Supreme Court opined that this case was appropriate for a 50% – 50% division, but found, however, that an attempted 60-40% split was not an abuse of discretion.

It is well-settled that the apportionment of marital property is within the discretion of the family court.

This means that an appellate court should presume that the family court acted within its broad discretion. As long as the end result is equitable, it doesn’t matter that the appellate court might disagree with the actual award. It can only be reversed if the appellant demonstrates an abuse of discretion.

The second issue in Dawkins was special equity in marital property. The marital residence was a gift to husband from his mother, but transmuted into marital property. Husband appealed this issue to the court of appeals seeking a separate award for his contribution to the marital home. The court of appeals agreed and gave him $25,000.00 in addition to his 50% of the marital estate under Cooksey v. Cooksey.

Under Cooksey, if one spouse inherits property that later transmutes into marital property, he or she still has a right for special consideration at divorce. Cooksey was decided before our equitable distribution statute. The principle in Cooksey is still good law. However, the S.C. Supreme Court overruled Cooksey to the extent it would allow a family court to separately award the special equity to the inheriting spouse in addition to his or her portion of the marital estate.

The sole method to calculate a spouse’s special equity now is the approach set forth in Toler v. Toler. Under this approach, an inheritance is treated as a contribution to the acquisition of the marital property. This contribution is taken into account in determining the inheritor’s percentage at distribution.

Some answers to this question range from the “that’s the way it’s always been done” to the “it’s just in case something different comes up in the trial.”  Obviously, these answers are not satisfactory. The answer might as well be: in case I forgot something, the judge can help me out. That, of course, is equally unsatisfactory and a little disturbing.

An example of a better answer, by implication, is contained in Smith v. Smith, a South Carolina Court of Appeals case decided last month. One of the issues addressed in this case was child support. The mother asked for child support in her complaint. She did not, however, ask for a deviation from the child support guidelines to include the costs of private school tuition for the parties’ daughter.

Generally speaking, child support will be awarded in the amount set pursuant to the child support guidelines. The guidelines do not take into consideration the economic impact of private school tuition. They do, however, specifically list private school tuition as a possible reason for deviation from the guidelines.

The family court has the discretion to decide whether to deviate from the child support guidelines in a given case. Here, the family court refused to deviate from the child support guidelines because the request was not contained in the mother’s pleadings.

The S.C. Court of Appeals Remanded the issue back to the family court:

Contrary to the decision of the family court, Mother’s pleadings and the evidence presented at trial sufficiently placed this issue before the court. [Although]  Mother did not specifically ask the family court to deviate from the child support guidelines in her complaint … Mother asserted she was entitled to receive child support as set forth by the guidelines and, in addition, prayed for “such other relief as the Court may deem appropriate.”

Therefore, it appears the language in Mother’s prayer for general relief saved the day. This, coupled with a general request for child support, made her pleadings sufficient for the family court to consider the issue.

The opinion in this case puts an emphasis on Rule 8, SCRCP, which provides for liberal construction of the pleadings. I agree with this, however, I would offer two suggestions that hopefully would avoid an appeal on the “pleadings.”

First, make your pleadings simple, concise, and direct. You should know the issues prior to filing. Simply plead the relief the party is seeking.

Second, you can always consider a motion to amend the pleadings to conform to the evidence. Under Rule 15, SCRCP, when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Steven Simkin had been married to his wife, Laura Blank, for more than 30 years. They spent the better part of two years fighting over the value of certain real estate investments and Mr. Simkin’s law practice.  One item that was not subject to dispute was their account at Bernard L. Madoff Investment Securities LLC, which reflected a value of $5.4 million.  In the divorce, Laura Blank took $2.7 million in cash for her share of the Madoff investments.  Presumably for tax and other reasons, Mr. Simkin left most of the money in the Madoff investment fund.

We all know what happened next with the Madoff investment fund. It turned out to be one of the largest ponzi schemes in the history of the world.  As a result, the account kept by the ex-husband was rendered worthless. Naturally, he wanted a do-over and asked the court to set aside the agreement. He lost.

A Final Order is just what it says it is: final. I think the confusion with family court agreements lies in the fact that issues regarding children are always modifiable if there is a material change of circumstances. There is no material change of circumstances modification for property issues. Equitable division of property is final once approved by the court.

This case made the news because it concerned a substantial amount of money. The lessons learned from this case however, can be applied in almost every divorce case. After all, your client may not have a lot, but what he or she has is a lot to him or her.

In Floyd v. Morgan, the agreement provided that the father would have custody of the children and the mother would have visitation in excess of 109 overnights per year.  The significance of 109 overnight visitations is that it meets the threshold for shared visitation. Under shared visitation, the mother would pay a lower amount for child support than she would under a sole custody arrangement. Nevertheless, she agreed to pay child support pursuant to the guidelines for a sole custody arrangement.

The mother filed a motion to have her child support payments lowered. The family court judge may modify child support payments if there is a substantial change of circumstances. At trial the family court agreed with mother and recalculated her payments under the shared custody guidelines.

The S.C. Supreme Court reversed. The burden of proof is always on the party moving for the change. However, this burden is increased if the child support amount is based on a settlement agreement. The Court found that the mother didn’t meet this heightened burden of proof and noted that one of the “changes” – elimination of child care expenses – was contemplated in the parties’ agreement.

The agreement in Eason v. Eason contained a provision where neither party would seek a divorce on the grounds of adultery.  This agreement was signed by both husband and wife and incorporated into the final order. Wife later filed for divorce on the grounds of living separate and apart for more than one year. She was awarded alimony at the temporary hearing.

Husband amended his answer and counterclaimed for a divorce on the grounds of adultery. In South Carolina, adultery is a complete bar to alimony. The family court ruled that the agreement was unenforceable and in contravention of public policy. Therefore, wife was barred from receiving alimony. She appealed.

The S.C. Supreme Court reversed. The Court found that the husband waived his right to use adultery as a bar to alimony.

The family court lawyer should keep these two cases in mind when drafting an agreement. The agreement should be as detailed and comprehensive as possible. The client should know exactly what he or she may be giving up because it appears that you can waive some pretty substantial rights in family court.  It also appears that there is now a heightened burden of proof for modifying an agreement based on change of circumstances.

Agreements have always been important in family court. The majority of cases are settled by agreement. The advantages of an agreement are numerous: They are much less expensive than a trial, the case can usually be concluded in less time and the client knows what the outcome will be when he or she goes to court. The important thing is to make sure the agreement is done right the first time; there probably won’t be a second time.

The juvenile was convicted in North Carolina for Indecent Liberties Between Children. He was placed on probation and the probation was transferred to South Carolina. The SC Department of Juvenile Justice notified the juvenile that he had to register as a sex offender. He filed a motion in family court to have his name removed from the registry. The family court denied his motion. The juvenile appealed.

On appeal, the state argued that the family court did not have subject matter jurisdiction to consider the juvenile’s request to have his name removed from the Sex Offender Registry and that he should have filed a declaratory judgment in the court of common pleas to challenge the requirement.

The South Carolina Supreme Court (SCSCt) rejected the states argument. Family court has jurisdiction of juveniles.  That jurisdiction continues until the juvenile has completed his probation. This juvenile was still on probation when he filed his motion with the family court, therefore the family court had jurisdiction to hear the matter.

Regarding the merits of the motion, the SCSCt looked at the South Carolina Sex Offender Registry Act.

In general, persons of any age who are convicted or adjudicated delinquent in South Carolina of an offense enumerated in the Act or who are convicted or adjudicated delinquent for a similar offense in a comparable court in the United States are required to register.

Clearly this applies to juveniles.

The SCSCt went on to compare the elements of the crime the juvenile was “adjudicated delinquent” of in N.C. to the elements of a “similar” crime in S.C., Lewd Act on a Minor under the age of Sixteen.

The N.C. offense can only be committed between minors. It is a misdemeanor and is punishable by a sentence of up to 45 days incarceration.  Furthermore, it does not require the defendant to register as a sex offender. The S.C. offense, on the other hand, is one that can be committed by an adult. The defendant must register as a sex offender. The crime is a felony and it carries a sentence of up to 15 years in prison.

The S. C. Supreme Court, in a 3-2 opinion, agreed with the juvenile that the two offenses are not substantially similar. Therefore, the juvenile did not have to register and his motion to have his name taken off the registry should have been granted.

Chief Justice Toal and Justice Kittredge joined in a dissenting opinion. In their view, if the juvenile committed the act in South Carolina, as opposed to North Carolina, he could have been charged with lewd act with a minor and therefore, he would have to register. For this reason, his name should not come off the sex offender registry.

In Posner v. Posner, the husband and wife had previously divorced in 2001. The divorce settlement included the entry of a Qualified Domestic Relations Order (QRDO) to divide husband’s tax deferred savings plan. In 2004, a Rule to Show Cause was issued and husband was found in contempt of court for failure to comply with the terms of the agreement. He did not show for the hearing. He was found in contempt and sentenced to 90 days, provided however, that he could be released if he complied with the previous order. A bench warrant was issued for his arrest and was still outstanding at the time of the appeal.

In 2006, IBM distributed the tax deferred savings plan to husband and to wife. Then the husband filed a motion in family court seeking to have the QDRO amended to conform with the agreement. Wife objected to the motion because husband was still in contempt and further that his motion should be dismissed under the Fugitive Disentitlement Doctrine (FDD). The family court heard the motion on its merits and found that husband had still failed to purge the contempt and therefore, dismissed his motion.

The court of appeals dismissed husband’s appeal under the FDD. This doctrine is a discretionary right of an appellate court to dismiss an appeal by a person who is in contempt for the very action he is appealing.

The rationales for this doctrine include: (1) the difficulty of enforcement against one not willing to subject himself to the court’s authority, (2) the inequity of allowing the “fugitive” to use the resources of the courts only if the outcome is an aid to him, (3) the need to avoid prejudice to the non-fugitive party, and (4) the discouragement of flights from justice.

For the appellate court to invoke this right, there are two requirements:  first, the appellant must be a fugitive; and second, there must be a connection between appellant’s status as a fugitive and the process appellant seeks to utilize.

Both requirements were met in this case.  Appellant was a fugitive and there was a sufficient nexus between his status and what he was appealing.

What makes this case unusual is not that the husband was found in contempt, but that he appealed it without ever showing up for the family court hearings. There are contempt hearings all most everyday in family court. Don’t bother trying to appeal one if you don’t show up.

This case reminded me of another scenario that is too often attempted in family court. That is, when one party files a rule to show cause accusing the other party of some misconduct while at the same time the accuser is committing the same misconduct. You shouldn’t expect the court to help you if you don’t have clean hands. Family court is a court of equity. To seek equity, one must do equity. Rules to Show Cause are serious business. They should be treated seriously.

Tomorrow I will continue the countdown with the SC Supreme Court cases involving family court issues.