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Appellate decisions that reduce clarity

One important feature of appellate decisions is that they generally clarify the law.  This clarity leads to greater justice at lower expense as trial court judges, relying upon these appellate decisions, are more likely to treat similarly-situated individuals similarly and because attorneys, relying upon these appellate decisions, are more likely to be able to agree upon the approximate result should the case go to trial, and therefore are more likely to be able to settle disputes without trial.

Sometimes, however, appellate decisions reduce clarity in order to increase justice.  An example of this is in the history of custody litigation.  Until the mid 19th century (dates very approximate) courts routinely granted husbands custody of their children because children were their father’s property.  From the mid 19th century through the early 20th century, courts routinely granted mothers custody under the “tender years” doctrine.  Beginning in the early 20th century, courts began applying a “best interests of the child” standard to custody determinations.

This new standard led to greater uncertainty but more justice.  Prior to the “best interests” standard a judge merely needed to determine the gender of the child’s parents to decide custody; once the “best interests” standard came into effect a judge now needed to examine the individual circumstances of the child’s parents, which was a more detailed and less clear process.  Because this “best interests” standard required examination of numerous factors (whereas the previous standard only required examination of gender) and examination of factors that were not always clear (unlike the gender of the child’s parents) it took more resources (i.e., attorney time, leading to greater attorneys’ fees) to apply.  However, basing custody decisions upon immutable conditions such as gender was not just.  Much of the history of the law in the past two centuries is a move from deciding cases upon a person’s immutable characteristics to deciding cases upon a person’s unique circumstances: greater justice but at greater expense.  It is a trade off our legal culture believes is reasonable.

However, if it is reasonable to have appellate decisions that lead to greater uncertainty if they also lead to greater justice, appellate decisions that lead to greater uncertainty without leading to greater justice are counterproductive.  Similarly counterproductive are appellate decisions that lead to greater certainty by reducing justice.  The past two years, South Carolina’s appellate courts have issued a few decisions that violate both of these considerations, with no apparent recognition that they are doing so.

Two South Carolina Supreme Court decisions dealing with laches have created greater certainty by reducing justice.  Ables v. Gladden, 378 S.C. 558, 664 S.E.2d 442 (2008) and Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) abolished the defense of laches in the collection of back child support or alimony.  While these decisions led to greater certainty–past due child support and alimony obligations remain valid despite the obligee’s delay in seeking payment–they led to greater injustice.  One element of laches was proving unfair prejudice from the obligee’s delay; if the obligor could not prove this unfair prejudice then laches would not apply.  Thus, by eliminating the laches defense to the collection of past due child support and alimony, our Supreme Court has implicitly allowed the collection of these obligations despite the unfair prejudice such collection may create to the obligor.  Creating greater certainty by imposing injustice is not a trade off I consider equitable, but the Supreme Court fails to acknowledge this concern.

In contrast, two appellate decisions from this year, Smith v. Smith, 386 S.C. 251, 687 S.E.2d 720 (Ct.App. 2009) and Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009), create greater uncertainty without increasing justice.  Floyd upended previous standards for modifying child support agreements while providing little guidance as to what is actually required to modify child custody agreements.  The end result is that I (and most of my colleagues) can provide litigants little more than vague advice as to whether a family court will modify a child support agreement.  Given that Floyd was decided in the midst of the worst recession in 70 years, with numerous parents seeing their incomes greatly reduced through no fault of their own, the decision is especially harsh for some struggling parents.

The Smith decision now apparently allows a family court judge to rule upon any issue raised at trial whether a party’s pleading has explicitly sought the relief or not.  Many experienced family law practitioners already considered family court trials to be almost random in the variability and uncertainty of the rulings; now Smith encourages more variability and uncertainty.  The author of the Smith opinion, Chief Judge Kaye Hearn, is one of the best Court of Appeals judges in drafting appellate decisions on family law and she joins the Supreme Court next month.   However it is not a good sign that her opinion seems oblivious to the uncertainty it is creating.

If there is a logic behind these recent appellate decisions on family law it is not readily apparent.  Instead these decisions are leaving the family court bar collectively confused.

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