Spreeuw v. Barker
Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843 (Ct. App. 2009), is a published South Carolina Court of Appeals July 2009 opinion from an appeal I handled for a local colleague, Douglas Barker. It represents a small, perhaps Pyrrhic, victory. Ms. Spreeuw did not prevail in a single issue in her appeal; my client prevailed on a few issues regarding child support.
The primary issues in these cross appeals were child custody, child support and attorney’s fees. I was not the trial attorney and the record on these issues, especially the financial issues, was not nearly as well established as it could have been.
The trial court awarded the parties joint physical custody but awarded Spreeuw final decision making authority for the children. On appeal Spreeuw argued that the family court erred in not awarding her sole physical custody and Barker argued that the family court erred in not awarding him primary legal custody. Over six years elapsed since the appeal was filed (one of the children is now nineteen years old) and it is unsurprising that the appellate court did not modify the physical custody.
On the legal custody issue, the Court of Appeals agreed with my client that the family court erred in finding he did not have final decision-making authority under the previous order, finding that the old order “implicitly granted him final decision-making authority by virtue of granting him primary legal custody.” However the Court of Appeals found that the family court properly found a substantial change of circumstances authorizing the change of final decision-making to Ms. Spreeuw.
Since custody was the primary issue at trial, it is not surprising that the court affirmed the award of attorney’s fees. However, I believe the Court of Appeals’ analysis of Barker’s settlement offer misapprehends the applicable law. Barker attempted to argue that Spreeuw was not entitled to an award of fees because she didn’t do much better on that issue at trial than his settlement offer proposed. The Court of Appeals rejected this argument but “also note[d] that statements made during settlement negotiations are inadmissible. See Rule 408, SCRE (‘Evidence of conduct or statements made in compromise negotiations is likewise not admissible.’).”
I believe this analysis misreads Rule 408 of the South Carolina Rules of Evidence, which deals with the admissibility of offers of compromise. That rule excludes such evidence when the evidence if offered “to prove liability for or invalidity of the claim or its amount.” That rule “does not require exclusion when the evidence is offered for another purpose.” Barker did not offer his settlement proposal to prove what the court should have awarded in custody; he offered it to argue that the custody trial was necessitated by Spreeuw’s demand for more than joint custody.
The child support appeal issues provided a small victory. While not finding that the family court should have imputed greater income to Spreeuw or miscalculated Barker’s business income, it did find that the court improperly imputed income to Barker for repayment of a loan from his ex-wife and parking charges for his office parking space. On remand, Barker will be entitled to approximately six years of retroactive child support adjustment. A small small victory.