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The authoritarian nature of anticipated substantial change of circumstances jurisprudence

No modern authoritarian government acts “lawlessly.”  Instead such governments cloak their actions with the veneer of due process but they manipulate the law so that due process is meaningless.  There are (at least) two ways they can accomplish this.  The first is by creating a web of laws so complex and contradictory that no one can possibly obey them and then selectively apply the law only against the state’s enemies.  The second way is to create jurisprudential rules that allow for completely opposite results under apparently neutral legal principles.

I don’t think that our state Supreme Court intends to create an authoritarian family court system but its jurisprudence regarding modifying family court orders upon a showing of a “substantial change of circumstances” is genuinely disturbing.

For good reasons, South Carolina family law allows orders involving minor children and orders involving permanent periodic alimony to be changed upon a showing of a substantial change of circumstances.  This is smart jurisprudence.  A child’s needs change as the child ages and locking parents into custody, visitation and support orders that are non modifiable would do injustice to both children and parents.  Further, if the state is going to require ex-spouses to contribute the financial support they provided when married, the law needs to allow for adjustments as each ex-spouse’s financial circumstances change.

However, the South Carolina Supreme Court has created, and allowed, exceptions to the rule allowing such orders to be modified upon a showing of substantial change of circumstances, denying such modifications when such changes were “anticipated.”  See e.g., Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009), which denied mother a reduction in child support because it was “anticipated” that the children would eventually no longer have day care expenses.  However, the Supreme Court has also created an exception to the exception: when the court cannot “know what conditions will exist in the future,” it can modify an order despite the change of circumstance being anticipated.  See e.g., Sharps v. Sharps, 342 S.C. 71, 535 S.E.2d 913 (2000), which increased ex-wife’s alimony upon the termination of her child support despite the children’s emancipation being anticipated at the time of the divorce because the circumstances at the time of emancipation were unknown at the time of divorce.

I defy anyone to reconcile the holdings in Floyd and Sharps.  I further defy anyone to provide a rule or rationale that separates appellate decisions denying modifications because the change in circumstances were anticipated from those decisions granting modifications because the conditions at the time of the anticipated change were unknowable at the time of the previous decree.  What we have created, instead, is jurisprudence that allows the family court to deny many litigants a requested modification by finding the change in circumstance was anticipated or allowing them that modification by finding that conditions at the time anticipated change were unknown at the time of the previous decree.  Since neither proposition can be factually disputed–many changes in circumstances are anticipated; no one can known what future conditions might be–the courts basically have unfettered discretion when deciding cases based upon anticipated changes of circumstances.  My own experience is that sympathy often trumps justice when the courts make these decisions.

Until the South Carolina Supreme Court fixes this flaw in its jurisprudence (and I ain’t holding my breath), I suggest all family law attorneys drafting agreements that are subject to modification and that their clients are likely to want modified to include language, “There are no changes of circumstance anticipated by this agreement.”

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