Unpublished opinion (doesn’t) make(s) new law on application of Schedule C guidelines

Floyd v. Morgan, 383 S.C. 469 , 681 S.E.2d 570 (2009) is possibly the worst published family law opinion to come out of the Supreme Court since I started writing this blog in April 2009.  Not only did it unduly heighten the burden to modify child custody agreements–a decision since rectified in Miles v. Miles, 393 S.C. 111, 711 S.E.2d 880 (2011)–but it also granted the family court unfettered discretion in deciding whether to apply Schedule A or Schedule C child support guidelines in setting child support when both parties have the child at least 110 overnights, holding that the family court has the “discretion to utilize any Worksheet [it] finds appropriate under the facts of the case” in an action to modify child support.  Floyd, 383 S.C. at 476, 681 S.E.2d at 573.

An unpublished Court of Appeals opinion from November 15, 2011, Fekete v. Fekete, provides some rationale to support the family court’s decision not to use Schedule C guidelines in setting child support:

Mother was Child’s primary custodian, and both parties agreed she paid almost all of Child’s expenses, not only during the parties’ marriage when Mother was employed, but after their separation when she was unemployed.  We find this is not a situation that involves the true sharing of expenses for Child.  Father submitted no proof that Mother’s expenses would be diminished based on the visitation arrangement, and given the parties’ prior history, we conclude utilization of Worksheet C would result in Mother assuming a disproportionate share of Child’s expenses and would be detrimental to Child’s standard of living.  Thus, we affirm the family court’s decision on this issue.

Of course, since this opinion is not published, it cannot be cited as authority. Rule 268(d)(2), SCACR (“Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”)

On Monday I posted a blog “One hundred things I don’t know about South Carolina family law.” Listed at number 52 was, “Other than number of overnights, what criteria should the family court use in deciding whether to use Schedule A or Schedule C child support guidelines?”  A published Fekete opinion would have been useful guidance on answering this question.  Too bad we can’t use it.


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