Some of the more cryptic opinions to come out of the South Carolina Supreme Court simply state “We granted a writ of certiorari to review the court of appeals’ decision in [case name]. We now dismiss the writ as improvidently granted.”
Between the request for certiorari and such brief dismissals, the petitioner and his or her attorney are whipsawed through emotions: the initial burst of hope when the Supreme Court grants certiorari; the concerted, thoughtful effort of crafting briefs; the zealous attempt to persuade the Supreme Court at oral argument of the injustice done by the Court of Appeals; and, finally, the crushing realization that the Supreme Court found your argument was so weak that it didn’t merit further discussion. I imagine it would be less depressing to have certiorari denied than to have it granted but then dismissed as improvident.
When the Supreme Court granted certiorari in Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct.App. 2011), I was hopeful that it might provide some clarity to the 2002 amendment to S.C. Code § 20-3-150 that defined “continued cohabitation” for the purpose of terminating permanent periodic or rehabilitative alimony as:
mean[ing] the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.
Since this amendment no reported appellate decision has found a supported spouse’s cohabitation met this requirement: not Biggins; not Eason v. Eason, 384 S.C. 473, 682 S.E.2d 804 (2009); not Fiddie v. Fiddie, 384 S.C. 120, 681 S.E.2d 42 (Ct.App. 2009); not Feldman v. Feldman, 380 S.C. 538, 670 S.E.2d 669 (Ct.App.2008); not Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008); not Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007); not Degenhart v. Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct.App.2004).
I was hopeful that Biggins might finally determine, that in at least one case, the evidence was sufficient to terminate alimony based on “continued cohabitation.” Instead it took seven days for our Supreme Court to go from oral argument to certiorari dismissal, 401 S.C. 362, 737 S.E.2d 502 (2013). I am beginning to think that no fact pattern short of an admission of continued cohabitation by the supported spouse will be sufficient to invoke the alimony termination provision.
Next Tuesday I have the second Supreme Court oral argument of my career for a case in which I was granted certiorari. Even before today I was wary of the dreaded “DISMISSED AS IMPROVIDENTLY GRANTED.” My sympathies go out to Mr. Biggins and his attorney.