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Can miscarriage expenses be considered an incident of child support?

Today’s Court of Appeals opinion in Susan R. v. Donald R., 389 S.C. 107, 697 S.E.2d 634 (Ct. App. 2010), affirmed, with one seemingly insignificant modification, the family court’s ruling on the three contested issues.

Two appealed issues were simply affirmed.  Husband appealed imputation of income for the purpose of setting child support.  The family court included $100 per month in proceeds from a rental property and $400 per month from his part-time farrier business in setting his child support obligation.  It has sometimes been my experience that the family court imputes business income without subtracting for business expenses when calculating part-time self-employment income, but that does not seem to have been the case here.  The Court of Appeals opinion describes in substantial detail the factual findings made by family court to justify these income figures.  Further the Court of Appeals noted the propriety of imputing income for what was a then-unoccupied mobile home that husband had traditionally rented. See S.C. Regs. 114-4720(A)(2) (“Gross income includes income from any source including . . . rents (less allowable business expenses) . . . .”).

The Court of Appeals also affirmed the family court ruling that Husband pay half of Wife’s attorney’s fees, finding that Wife’s success on some contested issues plus Husband’s greater ability to pay fees justified the award.  Husband had what reads like a reasonable argument on the fee issue regarding “fees assessed for time that Wife’s counsel billed relating to a rule to show cause hearing and a separate DSS action.”  However since Husband failed to preserve this issue for appeal, the Court of Appeals didn’t address it.

The one issue the Court of Appeals modified was the provision of the order requiring Husband to pay half of the medical expenses Wife incurred from a miscarriage-related surgery that occurred prior to the parties’ marriage. The family court classified this as a marital debt and Husband appealed this finding.  While the Court of Appeals found that this debt was not properly classified as marital, it found two statutory bases to require Husband to pay a portion of it.  First, the Court of Appeals noted that certain classes of pre-marital debts could be subject to apportionment, under S.C. Code Ann. § 20-5-60 (Supp. 2007), which reads, “[a] husband shall not be liable for the debts of his wife contracted prior to or after their marriage, except for her necessary support and that of their minor children residing with her.”

The Court of Appeals further found that a miscarriage-related expense could be considered a form of child support under S.C. Code Ann. § 63-3-530(15) (Supp. 2009), which provides the family court jurisdiction “to include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, both before and after [] birth, . . . and other proper and reasonable expenses . . . .” (emphasis in opinion).

This provision of the child support code has, to my knowledge, never been applied to miscarriage-related expenses but only to live births.  The Court of Appeals’ opinion in Susan R. would appear to open the door for women to seek reimbursement of miscarriage-related expenses from the fetus’ father even if they did not have a living child together.  While this would rarely be cost effective, a fair reading of this opinion, however unintended, would seem to allow just such a claim.  Though the requirement of paying child support would appear to require the birth of a live child, it is unclear how equal protection would authorize a mother to seek reimbursement for miscarriage-related expenses if the parties had a living child together but disallow reimbursement for such expenses if they did not.

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