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Not publishing opinions to save the trial court embarrassment

I have been a past critic of the South Carolina Court of Appeals’ failure to publish opinions that do not meet the criteria of S.C. Code Ann. § 18-9-280 for leaving opinions unpublished.  Sometimes I read an unpublished opinion that, to my thinking, clearly doesn’t meet that criteria and the only reason I can figure for why the opinion remains unpublished is that the Court of Appeals wants to spare the trial judge embarrassment.

This certainly seems to be the case with yesterday’s unpublished opinion in Marrero v. Hankins.  There were three giant errors from the family court trial.  First, the family court judge failed to make findings of fact and conclusions of law to support the change of custody. See Rule 26(a), SCRFC (“An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.”).  Second, the family court improperly assigned precedential value to the temporary order. Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).  Third, the family court issued its decision without the guardian ad litem submitting a written report. See S.C. Code Ann. § 63-3-830(A)(6) (2010) (making a guardian ad litem responsible for “presenting to the court and all parties clear and comprehensive written reports, including, but not limited to, a final written report regarding the child’s best interest.”).

Everyone makes mistakes, and expecting trial judges to never error, or seeking to defrock them if they error on occasion, is folly.  Still the unpublished opinion in Marrero seems to indicate an extreme amount of error, so much so that the Court of Appeals, citing Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000),  raised, ex mero motu [of the court’s own accord], issues not raised by the parties at trial in order to protect the best interests of the minor child.  It would have been valuable to publish Marrero, if only to establish when sufficient error occurs for the appellate courts to utilize these ex mero moto powers.

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