From guest blogger, the Formerly Honorable Barry W. Knobel.
I jokingly refer to Barry W. Knobel as “formerly honorable” because he stepped down from the family court been in 2009 to start a practice devoted to family law mediation and arbitration. His analysis of the May 9, 2011 Supreme Court decision in Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), finds the opinion to be of greater significance than my blog on Lewis finds it to be. However, as he’s been a family court judge and I haven’t, his insight into what the Supreme Court is attempting to communicate to the family court bench is possibly more accurate and certainly worthy of consideration:
During the years I have practiced law, and especially family law, I would guess there have been most probably a dozen appellate court opinions which could be categorized as having altered the “family law landscape” in terms of how we practice family law from the first client interview through a family court trial or final hearing (see: Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988) [alimony]; Panhorst v. Panhorst, 301 S.C. 100, 390 S.E.2d 376 (Ct. App. 1990) [equitable division of marital property]; McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct. App. 2007) and Paparella v. Paparella, 340 S.C. 186, 531 S.E.2d 297 (Ct. App. 2000) [custody]; Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009) [modification of child support] and Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010) [college “support” for an adult child] to name a few of those “game changers”).
Yesterday, the South Carolina Supreme Court filed an opinion which will have the equivalent of creating a seismic shift in the appellate court world, and one which will be discussed and debated in the legal circles of this State for years to come. The opinion will also change the way in which family court judges issue their written instructions for final orders and/or craft the orders which they author, and in crafting these orders, it will also require the family court judge to be even more sensitive to the development of his or her trial record. For attorneys who are skilled both inside the family courtroom and inside the appellate courts, the decision in this case will give them an emboldened new sword-and-shield. Finally, and unfortunately, for those family law attorneys who have never known “how to protect your trial record”, this opinion will either force you to learn how, or it will force you to call your malpractice insurance carrier to up your policy limits.
Please take a moment of your day to read and digest the artfully crafted majority opinion written by Associate Justice John Kittredge in the case of Lewis v. Lewis. Of interest and significance to me, personally, is that Lewis reviewed an unpublished 2008 Court of Appeals decision (2008-UP-645) in which the issues on appeal centered on the value of the marital residence (the family court judge accepted the wife’s expert’s appraised value) and the court’s award of expert fees. And yet, the South Carolina Supreme Court granted a writ of certiorari and used this virtually unknown case to clarify, but certainly redefine, the “abuse of discretion standard” which has been a bulwark in the practice of family law and a companion to every family court judge.
Without taking a great deal of your time, but to give you a gist of what you will read in Lewis, Justice Kittredge writes: “We take this opportunity to give historical context to the appellate court standard of review of family court factual findings. … Our standard of review, therefore, is de novo. Our modern day usage of the term ‘abuse of discretion’ does not comport with our constitutionally authorized standard of review.”
For the family law attorney, I believe that Lewis will either force you to take harder looks at the “certainty of settlement” of your cases, or will force you to create as perfect a trial record as you can with the intention of now satisfying not one, but two audiences…first and obviously, your family court judge, but, if you fail to prevail, then your appellate courts (both appellate courts) if your clients can afford to appeal. If you fail to prevail at the trial level, then you will most certainly hope that the judge’s order is (1) poorly crafted and (2) contains some findings of fact unsupported by the trial evidence and testimony. Most certainly, at the appellate level, Lewis has thrown open the door wider for you, and given you a potential safety net, than at any time in the recent past.
For the family court judge, I would believe that Lewis will require that final orders are detailed enough to not only support the judge’s decision, but also to support the evidence and testimony in the trial record…and in that order of concern.
Finally, I don’t know why – and of course I will never know why – the Supreme Court selected this unpublished opinion as the vehicle to sharpen its appellate sword; however, I can only guess that our Supreme Court wanted to send a very clear message to the entire bench (at all levels) and bar that, in matters of equity, it is also “the ultimate and final trier of the facts.”
There has been a paradigm shift at this level, and I would urge that you study this case and know how to use it in the future.