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Two recent interesting unpublished family law opinions

I rarely blog about unpublished opinions because even when they are interesting, and even when they should have been published, they rarely do anything other than restate legal principals that have been established in published opinions.

However two recent unpublished family court opinions make new law–or would make law if they were published and therefore citable as legal authority: the June 14, 2017 opinion in Lester v. Sanchez and the July 26, 2017 opinion in Murphy v. Murphy. Both should have been published.

Lester was a custody case between the child’s father (Lester) and grandparents (Sanchez). The opinion discusses South Carolina’s recent De Facto Custodian statute, S.C. Code § 63-15-60 (2012), which no published opinion yet interprets. The family court awarded Lester custody and the Sanchezes appealed. One of the arguments they raised on appeal was that they were de facto custodians, and therefore alleged equal custody rights to a natural parent. Under subsection C of the de facto custodian statute, “[t]he family court may grant visitation or custody of a child to the de facto custodian if it finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.”

While the family court did not find the Sanchezes to be de facto custodians, the Court of Appeals addressed their claim by holding that the Sanchezes being de facto custodians would not have changed the trial outcome. To reach this conclusion it gave the following interpretation to Subsection C:

This language does not negate the rebuttable presumption that it is in a child’s best interest to be in the custody of a biological parent or suggest de facto custodians are on equal footing with biological parents.

I have litigated a couple of de facto custodian cases and the issue often arises, what “position” does a party hold as it regards custody and visitation once that party establishes that he or she is a de facto custodian. One obvious interpretation of Subsection C is that, had the legislature wanted to place de facto custodians on equal footing with parents, it would not have required “compelling circumstances” to award such folks visitation. This is an interpretation the Lester opinion adopts. Another interpretation of the statute is that one must have assumed a parental role (and that at least one parent must have abdicated a parental role) for someone to become a de facto custodian–so why shouldn’t that person have equal rights to the child?

What “compelling circumstances” must exist to award such persons custody? If the child’s natural parents are fit does the de facto custodian have a strong claim to visitation? If the child’s natural parents are fit does the de facto custodian have an equal right to custody? Subsection C answers none of these questions. Lester answers that last question but does not answer it in a manner that is binding on the family court. Had it been published it would be binding.

Murphy is interesting because it is a rare case in which rehabilitative alimony was ordered. It is even more interesting because it was the Court of Appeals that ordered it, rather than merely approving the family court’s award.

The last published appellate opinion approving rehabilitative alimony was from 1988: Bryan v. Bryan, 296 S.C. 305, 372 S.E.2d 116, 119 (Ct.App. 1988). Murphy involved a ten year marriage that produced no children. It Wife’s second marriage and she was 53 years old at the time of separation. At trial Wife sought, but was not awarded, alimony. This was one of the issues she raised on appeal. The Court of Appeals found Husband’s actual gross monthly income was at least $8,500 and Wife’s monthly income was $2,913 with an ability to earn at least $4,642 per month if anticipated surgery enabled her to recover sufficiently from a knee injury to go back to work as a teacher. The Court of Appeals awarded Wife alimony of $1,250 per month for a maximum duration of sixty months, which it found to be “just and equitable.”

This was a ten-year marriage with an $8,500/$2,913 income disparity and with a potentially disabled Wife. The opinion does not address marital fault but it does not appear the family court or the Court of Appeals found Wife at fault in the breakup of the marriage. Both parties were of an age in which their anticipated future earnings will decrease, but it is hard to see how this might justify rehabilitative alimony. Normally this situation would call for an award of permanent alimony with the possibility of a downward adjustment if Wife was able to go back to teaching.

Is it that this was a second marriage which produced no children that caused the Court of Appeals to award only rehabilitative alimony? Is the ten-year duration of the marriage the reason for this award? The opinion doesn’t explain its reasoning. However, given how rarely rehabilitative alimony is even approved by the appellate courts, the Murphy opinion is noteworthy. The Court of Appeals should have better explained its reasoning and should have published its opinion.

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