Beaten by implicit credibility determinations

My client, for completely explicable reasons, but much to my disappointment, has decided not to seek rehearing and eventual certiorari of the unpublished May 18, 2011 Court of Appeals opinion in Dulaney v. Dulaney.  In a completely related item, I just finished my second day of cross examining an alleged contemnor in a rule to show cause with further trial set for June.

I lost the appeal in Dulaney (and, according to the Court of Appeals, apparently lost the family court trial) due to a final order that “implicitly reflects a determination Mother was credible on the issue of the parties’ agreement.”  Evidently family court judges are now authorized to make “implicit” factual findings.

This Court of Appeals determination would generally bother me because family court final orders are supposed to make explicit factual findings.  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”) (emphasis added).  It bothers me more in this particular case for myriad additional reasons.

First, I filed a Rule 59(e) motion asking the family court to make explicit factual findings on credibility and on the nature of the parties’ agreement, which the family court refused to do.  Second, the family court curtailed my cross examination of the mother on the issue of credibility.  Third, while curtailing my cross examination of mother on the issue of credibility, the family court judge told me to “move on” because she acknowledged I had made my point that the mother wasn’t credible regarding one part of her testimony regarding the agreement.  Fourth, mother and her attorney made incredible assertions to the family court regarding an alleged typo in one of her pleadings, in which the typos perfectly matched my theory of the case and, even if typos, would only randomly occur one time in one hundred thousand.  Fifth, mother had filed a financial disclosure form in a different case that matched my client’s theory of the case but undermined her theory of the case.  Finally, there was substantial uncontoverted testimony from third parties that supported my client’s claim and undermined the mother’s claim.  That’s a lot of explicit credibility evidence to be undermined by “implicit” credibility findings.

So how is my loss in Dulaney related to my two-day-and-still-going cross examination?  Well, if the family court is allowed to make “implicit” credibility determinations and the appellate courts are going to affirm family court judges by finding these judges made implicit credibility determinations, I am going to spend as much time as the family court judge will allow me to show the opposing party is not credible.  Too often when an opposing party is asked a hard question I am provided a non responsive answer.  I used to figure that a few such non responsive answers demonstrated a lack of credibility.  No more.  Now I’ve got to keep asking until I get a responsive answer and then compare the numerous non responsive answers to determine if the different answers give rise to other lines of attack on credibility.  The image I have is of a pit bull that won’t some chewing someone’s leg.  It ain’t pretty but it appears to be necessary.

A loss based on implicit credibility determinations has a WTF quality to it.  My only solace is that this six page opinion is unpublished and thus few judges and colleagues are likely to learn about this loss.  I remind myself that I criticized the Court of Appeals in 2009 for its numerous non summary unpublished opinions and am reminded of Barry W. Knobel’s wisdom on the five stages of the attorney’s career with the last stage being “hypocrite – the worst of the lot.”  Yup, that’s me.


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