The February 1, 2012 Supreme Court decision Chisholm v. Chisholm, 396 S.C. 507, 722 S.E.2d 222 (2012), caps decade-long litigation into the amount of attorneys fees Husband is required to pay Wife. Meanwhile, the Supreme Court’s majority opinion unwittingly implicates issue preservation concerns that might seem to require a prevailing party on appeal in the Court of Appeals to appeal a favorable decision if that decision isn’t based on all the claims raised in the appeal.
Chisholm has a lengthy appellate history. In 2003 the family court required Husband to pay all of Son’s private school tuition for his junior and senior year and required Husband to pay Wife 67% of her attorney’s fees. Husband appealed. In an unpublished opinion from 2005 the Court of Appeals awarded more visitation to Husband and remanded the issues of private school contribution and attorney’s fees. In remanding attorney’s fees the Court of Appeals stated, “[i]n view of the beneficial results obtained by the husband in this appeal, we remand to the family court for further consideration.”
On remand the family court chose not to alter the private school expense allocation and reduced the amount Husband had to pay in attorney’s fees from $13,000 to $10,500 “[b]ecause [Husband] achieved beneficial results from the appeal.” Husband appealed, and the Court of Appeals reversed the entire award of attorney’s fees, holding that the family court erred by relying solely on the beneficial results obtained in determining how much attorney’s fees to award. The Court of Appeals also reversed the family court’s finding that Husband should be 100% responsible for Son’s junior and senior year and private school.
Wife sought certiorari with the Supreme Court on both the attorney fee issue and the private school issue. The Supreme Court granted cert. only on the attorney fee issue and reinstated the family court’s attorney fee award. This was despite the fact that Husband had, again, obtained successful results from the Court of Appeals. In reaching this decision the Supreme Court noted that the original appeal had remanded attorney’s fees as a result of the change in beneficial results and so the family court only needed to reconsider beneficial results in awarding attorney’s fees, holding:
Chisholm I did not address any error as to the manner in which the family court awarded the attorney’s fees but instead remanded “in view of the beneficial results obtained by the husband.” Given this directive, the family court proceeded to reduce the award based on the beneficial results achieved, while noting that Wife had prevailed on the most heavily contested issue at trial. It would be improper for the court to then, on subsequent review, reach back to declare the original order was in error. Furthermore, when the court gives guidance so plainly by noting that the remand is due to “beneficial results obtained by the husband,” it would be inconsistent for the same court to then find consideration of this element was insufficient to support the award. This is especially true given the fact that the court of appeals itself has altered awards of attorney’s fees solely on the basis of the beneficial results it awarded in the appeal.
This Supreme Court opinion is odd for a couple of reasons. First, the Court of Appeals’ modification of the private school tuition allocation would seem to mandate a modification of the family court’s attorney fee award (as the beneficial results had changed). While one can understand why the Supreme Court wanted to avoid a third trial on attorney’s fees, typically beneficial results on appeal result in adjustment to the attorney’s fee award. Further as Husband was successful on the first appeal in getting attorney’s fees remanded, what does the Supreme Court expect a litigant to do when he or she obtains success on an issue in the Court of Appeals but not on all grounds raised in the appeal.
Was Husband really expected to seek reconsideration from the Court of Appeals and certiorari from the Supreme Court to preserve additional grounds to sustain a modification of Wife’s fee award? We expect the losing party to move the appeal further; Chisholm implies that the winning party will also need to move the appeal further to preserve issues. At least Justice Pleicones had the sense to dissent.