Walters v. Walters
Walters v. Walters are two unpublished November 1999 opinions from the South Carolina Court of Appeals. After Mr. Walters’ divorce trial both of his trial attorneys were elected to the bench. He retained me to handle the appeal his wife filed as well as to handle visitation issues that lead to a second appeal. This was my second major domestic appeal and first divorce or custody appeal.
The first appeal, Walters v. Walters (divorce appeal), was from the parties’ divorce. Mr. Walter’s wife wife raised eighteen issues on appeal. Her primary issue is that she was not granted alimony, despite being the primary homemaker during their eighteen year marriage and despite the court granting her a divorce on the ground of her husband’s adultery. My client attempted to show (at both trial and on appeal) that his wife’s conduct had actually caused the breakup of the marriage and that the denial of alimony to her was therefore justified.
The Court of Appeals mostly affirmed the family court’s decision. Among the noteworthy issues resolved in this unpublished appeal was a determination that a party could be at fault in the breakup of a marriage despite that party obtaining a fault based divorce. This case was part of the inspiration for my article Representing The Innocent Primary Wage-Earner in Custody and Divorce.
Another noteworthy issue in this appeal was whether a party could be compelled to testify when invoking the 5th Amendment privilege against self-incrimination when the only immunity that had been granted was from the local solicitor. This appeal held that only the Attorney General’s office could offer sufficient immunity to require a person to waive his 5th Amendment privilege.
As of 2009, neither of these two issues has been resolved in a published appeal, making the law on these two issues somewhat unclear.
The second appeal Walters v. Walters (custody appeal) stems from a rule to show cause I handled for Mr. Walters while Ms. Walters’ divorce appeal was under consideration in the Court of Appeals. As part of that rule to show cause the family court changed custody of the parties’ youngest daughter from Ms. Walters to my client but denied my client some of his requested relief and put a restraint in place against Mr. Walters allowing his girlfriend around the children (at this point in time the Walters were already divorced). Both parties appealed this order but Ms. Walters dismissed her appeal when the Court of Appeals did not immediately return custody of the youngest daughter to her.
The Court of Appeals superseded the lower court’s restraining order regarding Mr. Walters’ girlfriend being around the children prior to briefing and reversed the lower court’s ruling on appeal, finding there was no basis for such a restraining order. It also required Ms. Walters to pay one half of the expert therapist’s witness fee and reversed an award of fees to Ms. Walters from Mr. Walters’ motion to reconsider. It did not reverse the lower court’s decision not to award Mr. Walters’ fees from the rule to show cause, finding that even if the lower court erred in not considering my fee request in a post-trial motion, it was harmless error.