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Supreme Court engages in scholarly debates on standard of appellate review of family court orders

The May 9, 2011 opinion in Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), finds the South Carolina Supreme Court engaging in a scholarly debate on the standard and scope of appellate review, using the grant of certiorari from the unpublished Court of Appeals opinion as the vehicle for doing so.

The Supreme Court granted cert to review two issues from the Court of Appeals opinion (which had affirmed and reversed numerous issues from the family court’s decision).  In analyzing these issues, the majority opinion took the opportunity to discuss the standard of review from family court appeals.

Starting with the recognition that family courts are courts of equity, the opinion cites Article V, § 5 of the South Carolina Constitution, which provides in relevant part that appellate jurisdiction in cases of equity requires the Supreme Court to “review the findings of fact as well as the law.”   Noting this grant of review is de novo the Supreme Court stated that modern day usage of the term “abuse of discretion” does not comport with the constitutionally authorized standard of review.

Myriad appellate opinions of family court decisions note a review for abuses of discretion and errors of law.  Lewis’s rejection of an “abuse of discretion” standard of review appears to give the appellate courts broader authority to overturn family court decisions.  However, whether this will actually occur remains doubtful.  The majority opinion affirms that:

de novo review neither relieves an appellant of demonstrating error nor requires us to ignore the findings of the family court.  The presence of de novo review and a willingness, after review, to defer to the fact finder should not be viewed as contradictory positions….

The highly fact-intensive nature of family court matters lends itself to a respect for the factual findings of our able and experienced family court judges who are in a superior position to assess the demeanor and credibility of witnesses.  Indeed, life-altering credibility determinations often lie at the heart of family court factual findings.  However, neither our respect for the family court bench nor the special need for finality in family court litigation may serve as a license to lessen our standard of review in family court appeals.

An abuse of discretion occurs when the decision is controlled by some error of law or is based on findings of fact that are without evidentiary support.  De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the trial court’s findings.  We must acknowledge that the term “abuse of discretion is a misnomer in light of the authorized de novo review in article V, § 5 of the South Carolina Constitution.

We are nevertheless persuaded that the inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts’ effort to incorporate the two sound principles underlying the proper review of an equity case.  As discussed above, those two principles are the superior position of the trial judge to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.  Those principles are consistent with our historic approach to de novo review.  This is the appropriate frame of reference for construing the abuse of discretion language in family court cases.

Citations omitted.

To summarize: the appellate courts should not sustain the family court merely because there is some evidence in the record to support the family court’s decision; however, the appellate courts should continue to give strong deference to the family court’s factual findings, especially those based upon credibility determinations.

The Supreme Court then uses this enhanced standard of review to reverse the Court of Appeals and affirm the family court on two issues: approving the family court’s $800,000 valuation on the former marital residence and the allocation of all of the $23,066.25 for expert witness fees to Husband.  In both instances, the Supreme Court cited case law applying an abuse of discretion standard–demonstrating how difficult in practice it will be to apply de novo review without resorting to case law applying this now-rejected standard.

In affirming the allocation of expert witness fees, the Supreme Court noted:

the experts’ valuations were material to the relief Petitioner [Wife] sought and obtained.  We further note the large disparity in the parties’ incomes—Respondent [Husband] makes $24,000 per month, while Petitioner makes $436 per month.

However the analysis of the marital home valuation issue is itself noteworthy.   An expert real estate appraiser valued the home at $800,000.  Husband testified that the value was lower and explained his reasons for believing the appraiser overvalued the home.  The family court accepted the $800,000 valuation but the Court of Appeals reversed expressing sympathy for Husband’s concerns, and finding “the family court’s finding about the worth of the marital home is not supported by the record.”

In reversing the Court of Appeals and affirming the $800,000 valuation, the Supreme Court noted:

Beyond a superficial presentation for a substantially lower value, Respondent elected to approach the valuation issue by challenging the appraiser’s valuation.  Under the facts presented, we reject Respondent’s contention that the appraiser’s valuation is not entitled to weight.  Respondent has failed to demonstrate error in the family court’s valuation.  We, therefore, decline to alter the factual finding of the family court.

The family court has broad discretion in valuing the marital property.  A family court may accept the valuation of one party over another, and the court’s valuation of marital property will be affirmed if it is within the range of evidence presented.  We have stated before, and we reiterate here, that a party cannot sit back at trial without offering proof, then come to this Court complaining of the insufficiency of the evidence to support the family court’s findings.  Because Respondent has failed to establish error in the family court’s valuation, we reverse the court of appeals.

Citations omitted.

In concurring and dissenting opinions, Chief Justice Toal and Justice Pleicones debated whether a different standard of review applied to cases that come to the Supreme Court pursuant to a grant of a writ of certiorari.  Pleicones, in dissent, argued that in review of appellate opinions pursuant to a grant of a writ of certiorari the Supreme Court may only correct errors of law or findings of fact that are wholly unsupported by the evidence.  He based this determination on his analysis of South Carolina Appellate Court Rule 242:

My research convinces me that the first question when determining an appellate tribunal’s scope of review is a determination of the method of review, i.e. by appeal or by certiorari.  That certiorari and appeal are different methods is recognized by the Constitution as well as by statute.  If the method of review is by certiorari, then case law dictates that review is limited to review of errors of law including findings wholly unsupported by the evidence.  E.g. City of Columbia v. S.C. Pub. Serv. C’n, 242 S.C. 528, 131 S.E.2d 705 (1963); Carolina, C. & O. Ry of South Carolina v. Worley, 102 S.C. 302, 86 S.E. 820 (1915).  On the other hand, when the Court’s review is by appeal, then the scope of review is governed by the nature of the action, i.e. whether it is at law or in equity.  S.C. Const. art. V, §5; § 14-3-320; § 14-3-330.

Toal’s concurrence notes that S.C. Const. art. V, §5 grants the Supreme Court de novo review of equity actions and further notes “the dissent’s reasoning would lead to the absurd result wherein the court of appeals had the capability to exercise greater discretion than this Court simply because the case reached that court ‘on appeal’ rather than ‘on certiorari.’”

Often I find Pleicones’ dissents to be better reasoned than the Supreme Court’s majority opinion (I actually prefer his analysis of the home valuation issue) but I simply can’t follow his reasoning here.  The de novo review standard set by S.C. Const. art. V, §5 seems clear and I don’t understand how a procedural rule and a few old appellate decisions could limit this constitutional standard.

The Supreme Court needed to address whether to employ different standard of review for appeals based upon a grant of a petition for a writ of certiorari, as Justice Pleicones would have dismissed the writ of certiorari as improvidently granted based upon his opinion that the Supreme Court had a narrower standard of review.  However, it’s extremely unclear why the Supreme Court chose this case to address the issue of whether an “abuse of discretion” standard comported with de novo review.  The Supreme Court didn’t need an enhanced standard of review to reverse the Court of Appeals and affirm the family court.

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