Last week, in Tillman v. Oakes, 398 S.C. 245, 728 S.E.2d 45 (Ct. App. 2012), the Court of Appeals reversed and remanded a family court custody order due to insufficient factual findings. On June 6, 2012, in Buist v. Buist, 399 S.C. 110, 730 S.E.2d 879 (Ct. App. 2012), the Court of Appeals reversed and remanded a family court equitable distribution order due to insufficient factual findings. Think the Court of Appeals is trying to send a message to family court judges (and the attorneys who draft these orders)?
As the Court of Appeals noted:
Here, the family court failed to make the appropriate findings in apportioning the marital estate. The family court did not identify all the parties’ marital property, but instead selectively divided certain real and personal property without determining the fair market value of all the property. In particular, the family court did not determine the fair market value of Landscape Supply, which constituted a considerable debt of the marriage. Moreover, the family court failed to determine the direct and indirect contributions of the parties to the acquisition of the marital property. It is unclear from our review of the record the value of the marital estate or the fairness of the overall apportionment. Additionally, counsel for both Husband and Wife conceded during oral argument that the family court never placed a value on Landscape Supply or the entire marital estate.
The Court of Appeals affirmed the custody and visitation issues raised by the Husband. It found the family court properly weighed the factors in awarding Wife primary custody of their child. It found the family court did not error in making some modifications to the temporary order regarding Husband’s visitation in shaping its final order. These modifications were requested by Wife and the family court found each of these modifications were in the child’s best interests. The Court of Appeals took “this opportunity to reiterate that temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”
The Court of Appeals refused to address Husband’s challenge to the award of attorney’s fees, holding that he failed to preserve this issue for review. After the family court ordered him to pay $8,000 in fees within 180 days, he filed a post-trial motion pursuant to Rule 59(e), SCRCP, arguing that he lacked the ability to pay these fees within this time frame. The Court of Appeals held this issue wasn’t preserved because Husband could have raised this issue at trial. It is hard to understand how he could have raised this issue at trial as he had no idea until the final order issued of what time frame he would have to pay any ordered fees. Further, it appears from the opinion that Husband did present evidence on his ability to pay Wife’s fees at trial. Unless clairvoyance is a required component of error preservation, it’s hard to understand what more Husband was expected to do.
Finally the Court of Appeals reversed the requirement that Husband pay his child support through the court (thereby incurring the 5% administrative fee). There were three different rationales for this reversal. First, the family court’s order was inconsistent in its factual finding and its conclusions of law. The factual finding required Husband to pay support through the court but the conclusion of law stated the payments “will continue to be paid in the amount and method he currently pays” and the current method was directly to Wife. Second, Wife’s brief indicated she did not oppose Husband paying his support directly to her. Finally, it was undisputed at trial that Husband had consistently made his payments directly to Wife.
It would be nice if Buist was authority for the proposition that a party who regularly pays support timely directly to the obligee should not be required to pay support through the court. However, given the three distinct bases for the reversal on this issue, it is unclear whether a history of timely payments is sufficient to reverse an order requiring support be paid through the court.