In the December 14, 2011 opinion in Lewin v. Lewin, 396 S.C. 349, 721 S.E.2d 1 (Ct. App. 2011), (in which I represented the losing appellant, though I was not his trial counsel), the Court of Appeals affirmed multiple challenges Father brought to the lower court’s award of $18,955 in fees and costs to Mother. Lewin represents an interesting fact pattern in that the parties resolved all issues other than attorney’s fees by consent and then addressed the attorney fee issue on briefs without testimony. I am unaware of any published South Carolina appellate court opinion in which the family court decided attorney’s fees solely on briefs. Oddly, I have another case on appeal in which the only issue is attorney’s fees and in which fees were decided solely on briefs (and again I was not the trial counsel).
The first of Father’s challenges was his claim that Mother was not the prevailing party. Though the Court of Appeals opinion doesn’t mention it, Mother’s complaint had sought sole legal custody and supervised visitation for Father, issues Father ultimately prevailed on. However, the Court of Appeals affirmed the family court’s finding that Mother was the prevailing party:
Although Mother did not receive all of the relief she requested, she did prevail on several issues and obtained beneficial results. The family court temporarily suspended Father’s visitation rights until he provided Mother with a negative drug test. Furthermore, in its final order, the family court ordered Father to undergo quarterly drug testing, and determined Father’s visitation rights would be suspended should he fail any of the drug tests. The family court also approved the appointment of a guardian ad litem and restrained Father from exposing the children to Wife. Accordingly, we do not believe the family court erred in finding Mother obtained beneficial results and was the prevailing party.
Father also challenged the finding that his conduct–he allegedly hid the results of his drug tests and didn’t cooperate in the scheduling of mediation–contributed to Mother’s litigation costs. In sustaining this finding the Court of Appeals rejected factual arguments Father made to the lower court, specifically that he regularly bleached his hair and that a positive drug test could be based on passive exposure. Whether any deference should be made for family court factual findings that are not based on testimony and are not challenged by other evidence is an issue the Lewin court did not address.
The Court of Appeals also rejected Father contention that the family court had inappropriately considered his own, now-estranged, wife’s behavior in awarding fees:
Based on our review of the family court’s order, we find the family court did not consider Wife’s conduct. The family court references Wife three times in its order. First, the family court notes the temporary order provided Father was prohibited from exposing the children to Wife until she obtained a negative drug test. Second, the family court notes Wife withdrew her consent to release her drug test results. Third, the family court notes the final order provided Father would not expose the children to Wife. The family court does not discuss Wife in the context of any of the factors relative to attorney’s fees.
Finally, in affirming the family court’s finding that Father had the ability to pay these fees, the Court of Appeals affirmed the family court finding that Father’s financial declaration, listing $400.00 per month income from his ENT practice, was incredible. It refused to consider Wife’s ability to pay her own fees out of assets because he didn’t raise this issue to the trial court.
As Father’s appellate attorney, I find two things noteworthy in this opinion. First, the Court of Appeals’ opinion ignores facts that are favorable to Father’s position. In a number of blogs I have written regarding appeals from family court decisions, the losing appellate attorney has complained that the opinion’s factual recitation was one-sided. More so than my other appeals, I see something similar in this opinion. Also, on three occasions in this opinion the Court of Appeals defers to the family court’s factual findings because the family court is in a better position to access credibility. This is certainly true when credibility involves testimony. Here, however, the matter was decided on briefs alone. No South Carolina case law discusses whether this deference should applied when there is no testimony. I see no jurisprudential reason why such deference should apply absent testimony. If the Supreme Court ultimately accepts certiorari on this appeal (I filed my Petition for Rehearing today), we may get an answer.