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2011 provides further evidence of the dearth of published South Carolina family law appellate opinions

Two of my frequent complaints are that South Carolina family law attorneys don’t appeal enough of the decisions they believe are unjust and that the South Carolina appellate courts don’t publish enough of their family court decisions.   As a result of these two factors the development of family law in South Carolina fails to keep pace with the changing cultural conditions and legal issues that make family law such a fluid practice.  Every year more critical family law issues emerge than the appellate courts answer, and thus each year this “backlog” increases, inspiring this recent blog.

2011 provides further evidence of this dearth of published family law opinions.  There were 35 published family law opinions last year: 9 in the Supreme Court and 26 in the Court of Appeals.   This was actually a 59% increase from 2010’s total of 22.  There were scores of unpublished family law opinions in 2011, two of which I blogged about (one was from my own appeal) and one of which the Honorable Barry W. Knobel blogged about. A family law attorney or judge wanting to keep abreast of family law appellate decisions would have had to read an average of three opinions a month.  We need more appeals and more published family court decisions.

The complete list of published 2011 family law opinions can be viewed in this adobe file:

Download (PDF, 57KB)

The complete list of published 2010 family law opinions can be viewed in this adobe file:

Download (PDF, 51KB)

  • I certainly cannot find any fault in your complaint Greg. I’m just wondering if you have any views on why this may be occurring and what may be done to improve the issue.

    • There are three solutions to this problem. First our appellate courts have to become less enamored about affirming the family court on “abuse of discretion” standards and start setting clear rules in analyzing legal issues. Affirming cases by applying an “abuse of discretion” standard not only makes reversals less likely (which discourages appeals) but results in less clarity in family law.

      Second, more family court attorneys need to try their cases with an eye towards appeal and become less fearful of appealing. Admittedly, losing an appeal because the appellate court decides the family court judge has undefined discretion on the issue being appealed does much to discourage attorneys from filing appeals.

      Finally, the Court of Appeals could publish more of its decisions. I’ve previously explained my belief that the appellate courts fail to follow state law in determining which decisions to not publish. Of my two unpublished losses in 2011, one, Bowers v. College of Charleston, clearly met the criteria to remain unpublished but one, Dulaney v. Dulaney, clearly failed to meet this criteria.

      Eventually I intend to write a blog describing how three years of blogging about every published South Carolina family law opinion has shaped my thinking about family law and the courts. One of my thoughts is that the over-reliance upon an “abuse of discretion” standard inhibits the development of clear rules (making justice in family court appear random) while allowing entirely too much authority for individual judges to make private law.

  • Lilly Collette

    I apologize, I had forgotten about http://www.gregoryforman.com/blog/2009/09/the-problematic-jurisprudence-of-uncitable-appellate-opinions-in-the-internet-era/.

    Keep me on your mailing list when you move forward with your new blog.

  • joe mendelsohn

    Greg, good work, but we must not forget the $$$ issue as it applies to an appeal.

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