Most of my child support and alimony-paying clients hate paying through the courts.  This hatred is completely justified.  The 5% fee associated with paying support through the South Carolina clerks of court is a significant and often unjustified “tax.”  While ostensibly designed to compensate county governments for the labor of child support collection, the fee isn’t per support check processed but on a percentage basis.  I am aware of folks paying over $3,500 per year in “fees” because they pay support through the court.  Meanwhile support payments made through the court cannot be made by personal check so it requires obligors to either obtain certified funds or come to the courthouse to pay cash.

Thus, my clients rarely want to pay support through the family court.  Instead they prefer to pay the obligee directly.  In South Carolina, when the family courts allow direct pay, they typically put in a provision authorizing the obligee to file an ex-parte affidavit and order to have support be paid through the court if the obligor is ever more than five days late.  In the past year I have handled four disputes in which my client alleges his or her support payments have been made timely while the other party claims otherwise.  Often the other party uses this claim of late payment to force support to be paid through the court.

If an obligor has routinely paid support within 5-10 days of its due date, paying through the court is not going to result in quicker delivery of support to the obligee.  The family courts rarely seek enforcement until support is weeks, even months, behind.  Further, the family courts take a few days to turn support deposits into support payments.  Forcing the obligor to pay through the court makes sense when the obligor simply isn’t paying or is routinely months late–as the family court will bring collection proceedings that won’t require the obligee to obtain an attorney.  However having support go through the court when an obligor is 5-15 days late rarely results in payments arriving quicker.

Yet, when the obligee dislikes the obligor, the obligee will often try to have support go through the court merely to impose the 5% fee on the obligor as a form of “punishment.”  This desire to punish the obligor leads to disputes over when support has been mailed and when its been received.  The easiest way to resolve these disputes is to have support paid via direct deposit into the obligee’s account but some obligees balk at allowing this (whether it’s from a desire to cause unnecessary conflict or an unwarranted fear that such direct deposits allow the obligor access to the obligee’s account is impossible to determine).  Thus, the recurring disputes as to when support was actually paid.

Last year I litigated a situation in which my client was served with an ex-parte order to pay his support through the court after his ex-wife filed an ex-parte affidavit claiming he had been more than five days late on two occasions.  He hired me to overturn the order.  This was one of those cases in which when support was mailed and received was disputed by the parties.  However, my client had done something that was then unique in my experience: he had paid his support by having his bank debit his account and mail the support checks directly to his ex-wife.  Thus he had a perfect record of when the support was mailed.  And it was routinely mailed five days before the due date (which would be ten days before it triggered the ex-parte provision).

It’s possible to prove when an obligee deposited a support check but it’s impossible to prove for an obligor to prove when the obligee received it.  Here the ex-wife claimed she received the support late but my client, through his bank records, was able to prove that he mailed the support five days before it was due.  The court found he wasn’t late making his support payments, rescinded the order requiring him to pay support through the court, and made the ex-wife reimburse him my fees and his court costs–including the 5% fees he paid before the order was rescinded.

Now when I encounter disputes regarding the timeliness of support payments, my advice to obligors whose obligees won’t let them pay support through direct deposit is to have the bank issue the support check.  One can’t control or prove when an opposing party receives support but if one can prove support was mailed five days before it was due, I doubt any court would find the obligor was late paying support.  Having the bank mail the check completely undermines a vindictive obligee’s ability to force support through the court based on false allegations of late payment.

An unpublished Court of Appeals opinion from November 15, 2011, Fekete v. Fekete, provides some rationale to support the family court’s decision not to use Schedule C guidelines in setting child support:

Mother was Child’s primary custodian, and both parties agreed she paid almost all of Child’s expenses, not only during the parties’ marriage when Mother was employed, but after their separation when she was unemployed.  We find this is not a situation that involves the true sharing of expenses for Child.  Father submitted no proof that Mother’s expenses would be diminished based on the visitation arrangement, and given the parties’ prior history, we conclude utilization of Worksheet C would result in Mother assuming a disproportionate share of Child’s expenses and would be detrimental to Child’s standard of living.  Thus, we affirm the family court’s decision on this issue.

Of course, since this opinion is not published, it cannot be cited as authority. Rule 268(d)(2), SCACR (“Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”)

On Monday I posted a blog “One hundred things I don’t know about South Carolina family law.” Listed at number 52 was, “Other than number of overnights, what criteria should the family court use in deciding whether to use Schedule A or Schedule C child support guidelines?”  A published Fekete opinion would have been useful guidance on answering this question.  Too bad we can’t use it.

All of these questions are capable of definitive answer by case law or statute.  That none of them are is due to our legislature’s and appellate court’s continued–and inexplicable–preference for vesting great discretion in family court judges.  Huge swaths of family law–equitable distribution; alimony; child custody–vest the family court judge with tremendous discretion.   Child support is the one area of family law in which federal law requires clear guidelines and child support disputes tend to be less expensive to resolve than other disputes because attorneys can more reasonably predict outcomes.  However, when the courts have great discretion in fashioning decisions, it becomes much harder to predict outcomes, and gives parties more incentive to litigate.

These unresolved issues in family law range from the highly technical (treatment of subchapter S income that doesn’t increase a parent’s spendable income) to grandly philosophical (what is a father?).  Some of these questions have clear(er) answers in other states.  Yet, even for issues that call for clear rule setting (when should a party in default be allowed to seek relief?; when should the court employ shared custody child support guidelines) our appellate courts have merely vested our family courts with discretion without providing any guidance on what factors should shape that discretion.  With South Carolina being a state of below average median income, jurisprudence should encourage clear rules in order to reduce legal fees.  Too often our appellate courts favor the vesting of great discretion in family court judges over providing clear guidance to the family court bench and bar.  Unless the goal is to maximize judicial power, this prudential preference is inexplicable.

Divorce

1. Does having sex with one’s spouse during the one year separation period set the clock back to zero on the no fault ground for divorce?

2. What is the burden of proof for adultery?

3. How much detail does the other spouse need to know for adultery to be condoned?

4. Does any sex between the parties after one party has knowledge of the other’s adultery condone that adultery?

5. How much subsequent “fault” does there need to be to negate condonation?

6. Is “third base” adultery?

7. Is “second base” adultery?

8. How long can a spouse remain in the home after the last physical abuse incident without that physical abuse being considered condoned?

9. Are postnuptial reconciliation agreements valid?

10. Can the family court order a spouse out of the house on an ex-parte basis?

11. Is the law prohibiting adultery unconstitutional?

Alimony

12. If the burden of proof for an adultery divorce is “clear and convincing evidence” is that also the burden of proof to invoke adultery’s bar to alimony?

13. If, after the court issues a final order of separate maintenance or divorce, the supported spouse commits adultery, and that order is later vacated or reversed, does that adultery bar alimony?

14. If the parties enter a separation agreement that a supported spouse repudiates prior to court approval, would that supported spouse’s post-agreement adultery bar him or her from receiving alimony?

15. If the supporting spouse is not “at fault” for the breakup of the marriage and is willing to take the other spouse back, can the family court award alimony?

16. Is refusal to engage in sexual intimacies a fault factor in determining alimony?

17. Is having close personal friendship that one’s spouse disapproves of, especially if that friendship is with a member of the opposite sex, a fault factor in determining alimony?

18. Is there a retirement age for alimony obligors?

19. Do the statutory factors for setting alimony apply to actions to modify alimony?

20. How does length of a marriage affect the amount of monthly alimony?

21. Does length of marriage affect the amount of alimony, whether the alimony should be rehabilitative or permanent, or both?

22. If a spouse wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set alimony?

Paternity

23. When can a husband disclaim paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

24. When can a wife disclaim a husband’s paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

25. How should the court determine who is the “legal” father of a child when a biological father claims paternity of a child born to a married couple and both the husband and the wife want the child to the husband’s child?

26. How should the court determine who is the “legal” father of a child when that child is born of an intact marriage but is the biological child of another man and neither the biological father nor the husband want to accept legal paternity?

Child custody/visitation

27. In custody cases, does the family court have authority to make legal custody type decisions for a child (e.g., which school the child will attend; whether a child can get elective surgery) or does the court merely have authority to decide who gets to decide?

28. In custody cases, can the family court issue restraints against third parties (grandparents; step parents) that they do not consent to?

29. Does the non custodial parent have the right to delegate his or her visitation to a third party?

30. Is there a difference between child custody and guardianship of a child?

31. When should sibling visitation be awarded?

32. How many sexual partners in how short a time period does it take to make a parent’s sexual behavior “promiscuous,” and therefore relevant without a showing that the behavior affected the child?

33. Is a parent’s pornography use relevant on the issue of custody without any showing that this use had any effect on that parent’s parenting or on the child?

34. Can grandparent visitation still be awarded merely because the grandparent’s child is deceased?

35. If a seventeen year old moves in with the non-custodial parent does the family court have any authority to make the child move back?

36. Can one arbitrate child custody issues?

37. Does the restraint against exposing children overnight to unmarried romantic companions deny due process or equal protection to homosexuals (since they cannot marry)?

38. Is the guardian ad litem allowed to present hearsay statements of the child over one or both parties’ objection?

39. Can and should the court ever appoint independent counsel for an older child involved in a custody dispute?

40. Is having custody of one’s own child per se emancipation?

41. In non abuse and neglect cases, can the family court impose restraints on parents that neither party wants?

42. Can the court consider a parent’s religious observance, independent of ancillary issues such as that observance’s impact upon a child, as a factor in awarding custody?

43. How long does a child have to be in a third party’s physical possession before the Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) factors become applicable?

44. What aspects of a parent’s homosexuality, if any, are relevant in custody determinations?

45. In custody battles between parties who are not the child’s parents, is preference given to someone who is a blood relative of a child?

46. In custody and visitation disputes between a parent and a third party, does the family court have to show harm before imposing restraints or obligations on a parent?

Child support

47. What factors should the court consider in setting child support when the parents’ combined income is outside of the guidelines?

48. Other than a history of late payment, what factors should the court consider in deciding whether to make a party pay support through the court (and incur a 5% administrative fee)?

49. If a parent wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set child support?

50. How should contribution towards private school tuition impact application of the child support guidelines?

51. How should child support be set when some of the parties’ children are in a shared custody situation and some are in a sole custody situation?

52. Other than number of overnights, what criteria should the family court use in deciding whether to use Schedule A or Schedule C child support guidelines?

53. When two mothers are seeking child support from the same father, should the first child support calculation be based on the oldest child or the first to file?

54. Should a parent’s undergraduate school loan payments impact income for setting child support?

55. Should a parent’s graduate or professional school loan payments impact income for setting child support?

56. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent has a controlling interest in the S Corporation?

57. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent does not have a controlling interest in the S Corporation?

58. Can the court order child support for a disabled adult child if that child had the disability before age eighteen but the condition only became disabling after age eighteen?

59. Is court-ordered support for a disabled adult child still constitutional after Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)?

60. If an eighteen year old high school student moves in with the non-custodial parent, does that give rise to child support modification?

61. Can the family court make an initial child support determination for an eighteen year old who is still in high school?

62. Does evidentiary or proof laches remain a defense to child support or alimony obligations?

Equitable distribution

63. How much can the court deviate from a 50/50 division of marital assets in a short term marriage?

64. How can the family court take jurisdiction over the parties’ property without first determinating it is marital?

65. Is it just the owner’s intent or is it the parties’ intent that determines whether property is transmuted?

66. Can the family court award property to one spouse at a lower value than the other spouse is willing to take it for?

67. How should the court value and equitably divide pets?

Family court procedure

68. When filing to modify support or custody, is venue proper in the county of the final order, the county of the defendant’s residence, or both?

69. Unless the previous final order explicitly states it, how does one determine where a change of circumstances is “anticipated” or “unanticipated”?

70. Is an adverse finding from invoking a 5th amendment privilege against self incrimination mandatory or discretionary?  If discretionary, what factors should the court consider in exercising this discretion?

71. Is attorney-client privilege waived on attorney fee issues if a party is seeking attorney’s fees?

72. Is a mediator allowed (required) to testify if a party claims he or she was coerced into executing an agreement during the mediation?

73. Is a mediator allowed to inform the court that a party mediated in “bad faith”?

74. In responding to a request for production, who is responsible for retrieval and copying costs for records that are in a party’s control but not in that party’s possession?

75. What is the effect of default in family court?

76. Can the court reconsider temporary orders merely because a party disagrees with the ruling?

77. If child support and alimony obligations are judgments, why aren’t temporary orders on these issues immediately appealable?

78. Since temporary custody orders will become moot upon the issuance of a final order, why aren’t they immediately appealable?

79. Can one issue subpoenas duces tecum without an order of discovery?

80. Does one have a “due process” right to demand testimony at temporary hearings?

81. Is a statement that is signed and notarized but not “sworn” before a notary a valid affidavit?

82. Are all family court motions “temporary motions” as defined by Rule 21, SCFCR?

83. Can the family court issue a temporary order providing relief that is retroactive to the date of filing of the motion?

84. Does one have the right to ask leading questions of one’s client on “cross-examination” if the opposing party called the client as his or her own witness?

85. Is service of motions, affidavits or orders via facsimile or email valid service?

86. Does “ex parte communication” merely refer to communication with a judge that takes place without the other party’s knowledge or presence or does it refer to all communications that take place outside of court or formal motion proceedings?

87. When a family court judge questions a witness, can one raise evidentiary objections?

88. Where a motion for an order for protection from domestic abuse is brought in an ongoing action, does the hearing proceed via testimony or affidavit?

Abuse and neglect cases

89. Is the “preponderance of the evidence” burden of proof for abuse and neglect cases unconstitutionally low?

90. Does the child hearsay exception of S.C. Code §19-1-180 violate the 6th Amendment?

Attorney’s fees and costs

91. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to make the defendant pay the plaintiff’s attorneys fees?

92. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to require the defendant to pay any costs (such as guardian fees)?

93. Does Rule 54(d), SCRCP give a party a right to seek bifurcation of attorney’s fees, with that issue to be resolved after the final judgment?

94. Should the fact that the lower income party retained a higher charging attorney be a factor in awarding attorney’s fees?

Contempt

95. Does the “clear and convincing” burden of proof for contempt just go to proving contempt or does it also go proving damages?

96. Can contempt of custody, visitation and child related restraint issues truly be remedied by civil rather than criminal sanctions?

97. Are the parties’ abilities to pay fees a factor in awarding fees from a contempt action?

98. What is the proper procedure to enforce compliance with a court order when the other party’s non-compliance isn’t willful?

99. When an opposing party cannot comply with a provision of a final order that is non-modifiable, what remedies are available (that is, can the family court then modify the provision at the other’s party’s request)?

100. Can the “unclean hands” defense to contempt be used whenever the moving party has failed to fully comply with any provision of the order or is it only effective if the moving party’s non-compliance is on the same issue or frustrated the defending party’s compliance?

Under the active versus passive gain analysis, both parties are entitled to share in any passive gains or losses in property value during the litigation period and the court should value such assets as of the date of trial.  However, for gains or losses created by one party’s active participation during the litigation period, the court is supposed to value the asset as of the date of filing and credit the active party with any gain or loss.  The Supreme Court explained the rationale for this by citing Roy T. Stuckey, Marital Litigation in South Carolina 310 (3rd ed., 2001):

It is fairer to value a passive asset at or near the time of the final hearing, because both parties are equally deserving to share in any increase or decrease . . . . [On the other hand,] active assets should be valued at the time of commencement [or filing] of the marital litigation, to enable the person who causes the change in value to receive the benefits of his or her labor and skills or, conversely, to prevent the person who controls the assets from manipulating the value downward during litigation.

In Burch, Husband was the minority partner in a couple of real estate ventures.  In the first venture, the company owned real estate with no equity as of the date of filing.  During the litigation, Husband did nothing to increase the value of this venture but one of his partners did substantial marketing work and eventually he purchased Husband’s interest for $1,591,500.  The Supreme Court determined that the gain in value of this business venue was passive–because Husband had done nothing during the litigation to affect its value–and that therefore Wife was entitled to one-half of the purchase price.  However, for the other business venture there was no evidence whether the gain was passive or active.  Finding that Wife had the burden of proving it was a passive gain (not that Husband had the burden of proving it was an active gain), the Supreme Court valued this asset as of the date of filing and credited Husband with all of the post-filing gain.

Wife raised two issues regarding child support, claiming the lower court erred in only awarding $1,000 per month in child support and in not requiring Husband to contribute to son’s private school tuition.  The Supreme Court rejected Wife’s argument that Husband should pay more than $1,000 per month in child support, holding:

The family court determined that Wife had an income of $10,418.16 per month and Husband had an income of $6,792 per month.  Wife paid $119 per month to provide health insurance for Son and $200 per month for babysitters.  Because Son spent 132 overnights annually with Husband, the family court classified the case as a “shared custody” calculation under the Guidelines.  Under a “shared custody” calculation under Worksheet C, Husband would be required to pay only $181 per month in child support.   Therefore, by requiring Husband to pay $1,000 per month, the family court deviated upward and exercised its discretion to provide a living standard for the child substantially equal to that of the person owing the duty to support.

Citations omitted.

However, on the issues of the child’s private school tuition, the Supreme Court reversed the lower court’s determination that Husband should not have to contribute, reasoning:

Son has attended Heathwood Hall since kindergarten, and the Record does not suggest it would be detrimental or against the child’s best interest to continue to attend Heathwood Hall.  We see no reason here to upset the status quo.  Given Husband’s income and high standard of living, Husband can afford to contribute approximately $6,000 towards Son’s private education to maintain Son at the standard of living he would have been provided but for the divorce. Thus, we reverse the family court and order Husband to contribute fifty percent of the cost of Son’s tuition at Heathwood Hall.

Citations omitted.

In fashioning its private school tuition and child support award, the Supreme Court may have done an injustice to Husband.  While denying Wife her request that he contribute to private school tuition, the family court ordered Husband to pay child support that was $819 per month over the guidelines figure.  Perhaps in awarding so much child support, the lower court was implicitly but indirectly having Husband contribute towards private school tuition.

Another oddity involved the Supreme Court reversal of the trial court’s forgiveness of a  $3,982.80 obligation Husband was ordered to contribute towards the marital home mortgage as part of a temporary order.  Husband didn’t make this contribution and Wife subsequently refinanced the mortgage for $54,279.66 less than the stipulated payoff on the mortgage.  The family court gave Wife full credit for this $54,279.66 but didn’t require Husband to reimburse Wife the $3,982.80.

The Supreme Court reversed and ordered Husband to reimburse Wife $3,982.80, finding that since he did not act equitably in disobeying the temporary order, he was “not entitled to have his obligation absolved in equity.”  One would think that giving Wife full credit for $52,279.66 in return for Husband’s $3,982.80 punished Husband enough for his failure to follow the temporary order but apparently, to our Supreme Court, it wasn’t.

Finally the Supreme Court affirmed the trial court’s award of $3,250 in attorney’s fees to Husband, which the lower court justified by “Wife’s non-cooperation and delay.”  Wife argued the family court improperly considered information from the parties’ mediation in reaching this decision.  The Supreme Court, in affirming, noted “that both parties may have waived confidentiality by agreeing to voluntarily submit the various offers of settlement for the court’s consideration.”

A final oddity: this case supposedly came to the Supreme Court upon a Writ of Certiorari to the Court of Appeals but I find no published or unpublished opinion from the Court of Appeals on this case.  How does that happen?

That didn’t stop many parents from agreeing to court-ordered college support, sometimes for children who were a decade or more away from matriculation.  Even in this post-Webb era parents continue to agree to court-ordered college support.  One can understand the impulse: who wants to be the bad guy (the bad girl?) refusing to help one’s child attend college?  Still it’s an impulse that should be resisted.

There are typically three reasons parents refuse to provide financial support for their children’s college.  First are the parents whose relationship with their child is so tenuous that they don’t care if their child attends college or not.  Often these parents are partially (or largely) to blame but sometimes the other parent or the adult child has been so obnoxious that the parent is driven away.  Second are the parents who simply disapprove of the lifestyle choices their young-adult child is making.  Sometimes we might find the parents to be unduly judgmental but other times these parents are cutting off their children for perfectly legitimate reasons.  Often the only control parents have over their young adult children is the power of the purse (the wallet?).  Court-ordered college support takes away that power.

A third reason many parents don’t provide financial support for their children’s college is that they lack the means to do so.  Many parents of college-age children are left with the choice of saving for retirement or paying for their children’s college.  Sometimes these parents’ financial choices are even more stark.  No person should have to live in their car to pay for their kid’s college.  Court-ordered college obligations take these budgeting decisions out of a parent’s control.

I greatly support my daughters’ college educations–for the next four years private college will be the biggest item in the family budget–but there’s no way I’d ever agree to a court order requiring me to make these payments.  Disobeying child support orders is an easy way to end up incarcerated.  Civil contempt for non-support is Western civilization’s last debtor’s prison.  Given a choice between paying my mortgage or paying for my children’s college, my children would be on-their-own.  But add a court order to the mix and the choice now becomes foreclosure or jail.  Then foreclosure doesn’t look so bad.   Parents agree to court-ordered college support with the best intentions but when their budget is stretched, and they realize the court order removes budgeting flexibility, they frequently regret it.

Yet there is a limited factual circumstance in which it has made sense for a client to agree to court-ordered college support.  This occurs when the child is near college age or in college, and the client has the ability and willingness to pay 100% of the child’s need for college, but the client can get the other parent to commit to a certain amount or percentage of these expenses so long as the client agrees to pay the remainder.  In this circumstance, by committing to paying college support via court order, the client can obtain a court order requiring the other parent to pay a portion.  Since these clients would have committed to paying 100% of the child’s need if the other parent wasn’t under a court-ordered obligation to pay a portion of college support, obtaining this commitment from the other parent can be enough of a benefit to justify one’s client committing to this obligation.

However, absent this very limited circumstance, in eighteen years of family law practice, I’ve yet to see another circumstance when it make sense of a client to commit to court-ordered college expenses.

Turner’s challenge before the United States Supreme Court regarded the South Carolina Supreme Court’s determination that he was not entitled to a court appointed attorney to defend a claim of civil contempt.  I though the better challenge to the way South Carolina handles child support collection was that it confuses civil contempt findings with criminal contempt findings.  I have complained about the way that the South Carolina Family Courts handle child support enforcement because I believe our courts have, for too long, treated contempt as civil without finding an actual ability to comply.  However, I thought that Turner’s challenge was unlikely to succeed because he was challenging the wrong issue.  The United States Supreme Court opinion in Turner validates my belief that an indigent support obligor is not necessarily entitled to a court appointed attorney to defend a claim of civil contempt but that such obligors are entitled to more due process than the South Carolina Family Courts have routinely provided them.

Even though Turner did not directly challenge the mechanism by which he was found in civil contempt, the United States Supreme Court, relying upon arguments raised in an Amicus Curiae brief filed by the United States Department of Justice, found that Turner’s incarceration violated the Due Process Clause.  It made this finding based upon the same concerns I had previously noted regarding the way our state handles support collection.  As the United States Supreme Court opinion notes:

Given the importance of the interest at stake, it is obviously important to assure accurate decision making in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often….

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.

Citations omitted.

To my knowledge no other state handles support collection in the manner South Carolina has handled it and myriad pro se obligors have rightly complained about being incarcerated for alleged “civil” contempt when they did not have the ability to pay the full amount to effectuate their release.  The days of the South Carolina Family Court’s routine denial of due process in its incarceration of delinquent child support and alimony obligors until they pay the full amount owed, without any finding that these obligors have the ability to pay that full amount, should be at an end.  If the United States Supreme Court majority had to rely upon an issue raised in an Amicus Curiae brief to reach this result (the four dissenters would not have reached this issue because it wasn’t raised in the lower courts), I do not bemoan this detour from the normal rules of appellate jurisprudence.

However, while § 63-3-530 (17) says nothing about emancipation terminating child support, there is much case law noting that emancipation terminates child support. See e.g., Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010).  A teen mother might not be self-supporting but I don’t see how the law can consider the act of taking custody of another human being to be anything other than per se emancipation.  By what logic can someone be legally in control of another’s life but not be legally in control of one’s own life?  To use a picayune example, if teen mom wants to feed her child carrots but the teen’s parent wants her to feed the infant broccoli, whose decision stands?

One can easily understand the family court’s logic for not terminating child support on teen mothers.  Maternal grandmother (who is typically the person with custody of teen moms in child support situations) has her own burden increased by the addition of a grandchild to the household, especially since few unmarried teenage mothers are capable of raising a child without substantial assistance.  Reducing or terminating this woman’s child support at a time of increased stress is counterproductive, even cruel.

Yet legally compelling parents to support emancipated children is horrible jurisprudence.  Part of being an adult is accepting responsibility for one’s own actions and one’s own life.  Deciding to become a parent is a quintessentially adult decision.  To treat it as though it is not–to pretend that one can parent a child while still being a legal child oneself–is one of the more dangerous fallacies our culture is increasingly accepting.   Allowing people to take on adult responsibilities while treating them as children is a bad idea in general.  Allowing them to become parents while treating them as children is frightening.

Women aren’t wrong when they claim parenting is the most important job in the world.   Humans are creatures both self-aware and social; the act of parenting is the act of transmitting culture and values from one generation to the next.  To pretend this is a job children are capable of doing is wrong on so many levels: it denigrates what should be considered an elevated task; it courts–almost mandates–failure; it encourages those least capable of assuming this responsibility to undertake it.

I don’t want to be part of a culture that says that parenting is something a child can do.  A culture that truly believes parenting is “child’s play” is ultimately doomed.  It would help if our culture did a better job of discouraging teen pregnancy.  But when girls under the age of eighteen become pregnant, our culture needs to tell them to either become an adult and accept the responsibilities of adulthood or give their child up for adoption.  Telling such mothers they can become parents but remain children is dishonest to them, cruel to their children, and ultimately damaging our society.

Having custody of a child should be per se emancipation and should end any support obligations regarding the new parent.  While it might seem cruel to reduce the financial support for such young parents, it is even crueler to allow their children to be raised by children.

Yesterday, for the first time in over a decade, I found myself in probate court.  The goal: collect child support that had accrued over a nine year period between 1973 and 1982 from the estate of a man who, according to my client, had disappeared even before their divorce and remained unlocated until his death.  In the interim, he had accumulated another wife (an ex-wife at the time of his death), more children and a nice bit of real estate.  When she learned of his death, she made a claim for the back child support.  After the estate denied her claim as untimely, she ended up at my office seeking help.

Due to the recent abolition of laches as a defense to child support collection in Ables v. Gladden, 378 S.C. 558, 664 S.E.2d 442 (2008), I thought her claim was relatively strong–strong enough I was willing to handle it on a contingency fee basis, even though I would need to split the fee with an attorney conversant in probate court procedure.  Shirrese B. Brockington, whose practice emphasizes probate work, agreed to be my co-counsel.  By the time settlement negotiations–involving four attorneys with 95 years of combined experience and combined billing rates just south of $1,000.00 per hour–concluded with a signed order, the results achieved were clearly worth the risk and effort.  I would gladly do this again in a case with a similar fact pattern.

Any attorney seeking to collect back child support or alimony from the estate of a deceased obligor needs to be familiar with a few statutes, cases, and rules of professional conduct.

Appeal of Brown, 288 S.C. 530, 343 S.E.2d 649 (Ct.App.1986) indicates that the probate court is the proper forum to collect past due child or spousal support from a deceased obligor.  It also supports the proposition that one can collect past due support even if that support obligation is more than ten years old (S.C. Code Ann. § 15-39-30 generally requires that judgments be executed within ten years).

Further, post judgment interest is allowed on each child support or alimony installment from the date the particular installment matured.  Thornton v. Thornton, 328 S.C. 96, 492 S.E.2d 86, 96 (1997).  S.C. Code Ann. § 34-31-20 sets the post-judgment interest rate, which is currently 7.25% compounded annually.

Finally, Rule 1.5(d)(1) of the South Carolina Rules of Professional Conduct allows an attorney to represent a party to collect past due child support or alimony on a contingency fee basis.   Any contingency fee agreement must be in writing and signed by the client.  Rule 1.5(c), SRRPC.  If two attorneys who are not in the same firm intend to jointly represent the party seeking to collect back support, the fee splitting arrangement: must be in proportion to the services performed by each lawyer or each lawyer must assume joint responsibility for the representation; must be agreed to by the client, including the share each lawyer will receive, and confirmed by the client in writing; and must be reasonable.  Rule 1.5(e), SRRPC.  This sort of representation requires familiarity with substantive family law and procedural probate law.  Unless an attorney is familiar with both of these areas of the law, co-counsel is advisable.

Using techniques discussed in greater detail in Contingency Fees and Interest in Collecting Back Child Support and Alimony, we were able to take a past due child support obligation just under $15,000.00 and turn it into a claim for a bit over $80,000.^[1] We settled the claim for a bit more than twice the amount of the back support claim.  Even after deducting the one-third contingency fee, our client was quite happy, as she ended up with more money than her original judgment.  Even splitting our fee, co-counsel and I were satisfied with amount in relation to the level of work involved.

Anyone owed past due alimony or child support who learns of the obligor’s death is welcome to contact me about using these techniques to collect that support.

Finally, I wish to thank co-counsel, Shirrese B. Brockington for her wonderful collaboration in this successful result, Dave McKeown, one of the Charleston County family court clerks, for his able assistance in scouring microfilm to locate the old case files, and Melissa F. Brown, for thinking of me when my client initally contacted her about collecting this support.
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[1] That was based on 14% simple interest.  Had the interest been compound at 14%, the claim would have been over $1,000,000.  Albert Einstein was onto something when he said “The most powerful force in the universe is compound interest.”

Four months before the oldest of his three children were due to emancipate, Polite entered a consent order with DSS setting his child support obligation.  Aware he was entitled to a reduction when the oldest child emancipated, Polite asked DSS what he would need to do to obtain the reduction.  While negotiating with DSS, Polite claims he was told to “come back in for a reevaluation for the oldest kid [who] was going to turn 18 six months later.”  Polite phoned DSS a number of times requesting modification, with his last call taking place sometime in June 2006, a fact that DSS conceded.   However DSS didn’t complete a child support review until September 2007, and an administrative process negotiation wasn’t held until December 13, 2007.  During this time Polite continued to pay his full child support amount for three children.

At the January 2008 hearing, the family court reset Polite’s child support retroactive to July 2006.  DSS contended the support should have only been set retroactive to December 2007 and appealed.  In a 2-1 decision, the Court of Appeals reversed the family court.

The primary issue was interpretation and application of S.C. Code § 63-17-830, which sets the procedures for modifying DSS child support orders.  Subsection A requires a request for modification be sent to DSS via certified mail.  Subsection C states “Only payments accruing subsequent to the modification may be modified.”

The majority held that since Polite never sent DSS his request for modification via certified mail  he was not entitled to retroactive modification prior to the December 13, 2007 review.  The majority held that his June 2006 contact with DSS did not comply with the certified mail requirement of § 63-17-830(A) and refused to excuse his lack of compliance with this formal requirement because of his pro se status noting:

While it is regrettable Polite was unaware of proper procedure, no statute or case law places a duty upon the Division to instruct obligors how to pursue modification.  Rather, statutory law provides an obligor seeking modification may file a written request by certified mail.  Affirming the family court’s finding that a phone call was notice would abandon the statute’s specificity and replace it with a casual, circumstance-driven means of initiating a modification action.  Moreover, from a practical standpoint, allowing a modification action to be commenced by a phone call, even if in good faith, potentially opens a Pandora’s box, which we find untenable.  Upholding a rule of law that permits a phone call to be the official means of notice would be difficult, if not impossible, to verify, leaving the issue of whether notice was properly given in many instances to a swearing match.  Accordingly, we reverse the family court’s finding that Polite’s phone call to the Division was sufficient to initiate this modification action.

Judge Lockemy dissented.  In his view:

[T]he Division put upon itself a commitment to assist Polite in properly seeking modification.  Polite first encountered the Division when it served him with Notice of Financial Responsibility to establish support for his three children.  Polite appeared without representation at a conference with the Division and signed an administrative process order requiring him to pay support.  Polite expressed his concern that his oldest child would reach the age of eighteen four months later.  Polite testified the Division promised to contact him to reevaluate his support obligation after his oldest child turned eighteen.  As Judge Woods noted, if this matter was handled in court, the support order would have likely provided for an automatic reduction in Polite’s support obligation upon the oldest child’s eighteenth birthday.

Despite its assurance, the Division failed to contact Polite after his oldest child reached the age of eighteen and Polite telephoned the Division on several occasions seeking assistance.  Judge Woods found that during Polite’s last call in June or July 2006, Polite asked the Division what steps to take in order to have his support obligation modified and the Division informed him it would contact him at a later date.  Based upon the Division’s control of the situation since the beginning, and its assurances it would handle the modification, Polite reasonably relied on the Division to assist him in seeking modification.

Polite is pro se and has been since this action began.  Polite has always complied with the Division’s instructions.  Unlike the mother in Blackwell v. Fulgum, 375 S.C. 337, 652 S.E.2d 427 (Ct. App. 2007), he did not unilaterally reduce his support payments and continued to pay the full amount of his support obligation.  Judge Woods correctly observed if Polite unilaterally reduced his support obligation like the mother in Blackwell, he may have successfully reduced his support obligation earlier because the family court would have likely ordered him to appear on a rule to show cause.  In fact, Polite was not able to have his support obligation reduced until two years after his oldest child turned eighteen.  Furthermore, Judge Woods also noted because Polite continued to pay the full amount of his support obligation his other two children were assured of receiving the appropriate amount of support.  I believe Polite has suffered a serious injustice because he reasonably relied on the Division’s assurances.

How should one balance the bureaucracy’s need for formal procedures to be followed with doing justice to a pro se litigant’s dealings with that bureaucracy?  Most folks decry bureaucracies for being “bureaucratic.”   However bureaucratic uniformity is designed with efficiency and fairness as some of its primary goals. When procedures are “uniform” they require less judgment, intelligence and experience to implement them, and thus they can be implemented at a lower cost [less intelligent, less experienced and less credentialed employees command lower salaries].  This saves taxpayers money.  Further, when procedures are “uniform,” there is greater consistency and thus lower likelihood of similarly situated individuals obtaining opposite results.  Having similarly situated individuals obtain similar results is almost a definition of “justice.”  The price of this bureaucratic uniformity is, unfortunately, often borne by unsophisticated individuals such as Mr. Polite, who lack familiarity with the rules the bureaucracy operates within and lack the resources needed to hire experts (i.e. attorneys) who are familiar with the rules and able to navigate efficiently within the bureaucracy.

Balancing the need for bureaucratic uniformity against the desire to do justice for well meaning but unsophisticated individuals such as Mr. Polite is what drives both the majority and dissenting opinions in Polite.  This is ultimately a philosophical debate–one that has taken place for centuries and is incapable of a definitive resolution.  While everyone sympathizes with Mr. Polite, there are well-known dangers to loosening bureaucratic requirements.  Though Judge Lockemy’s dissent may be more compelling, the majority opinion in Polite may be better, if bad, law.

I’ve been involved in a number of mediations in which we were working to settle a child support issue for the parties who had agreed upon a “shared parenting” arrangement, using, essentially, a Paparella-styled formula. In trying to establish a “range of acceptability” within which to work, the parties agreed, with certain variables, upon the language of the attached provision.

I am finding that in those cases where the parents (mother or father or both parents) contend they are spending a substantial (e.g., an “extraordinary”) amount of money on the children, they have difficulty in reaching an agreement as to a fixed amount of child support, based exclusively on the Child Support Guidelines factors/criteria shown on the DSS Form. Consequently, we tried this fairly simple process which seemed to work for them:

Using a Schedule C worksheet form, on the line towards the bottom designated as “Child(ren)’s extraordinary medical expenses”, we inserted on that line what the parents had agreed were their respective monthly direct contributions toward the children’s non-medical expenses. (I can find nothing in the Guidelines which limits this criteria only to extraordinary medical expenses, and, in fact, the Guidelines expressly allows for a consideration of these extraordinary non-medical expenses if agreed to by the parties or as ordered by the family court.)

Please remember that you will never find perfection in mediation, but you can establish a “range” within which the parties are prepared to work towards an agreement. Using this form in this fashion could, at least, provide the parties with potential “child support ranges” within which to work.

If you have not already done so, you might want to try this process to see if it helps you. Also, because I consider everything I do to be a constant work-in-progress, I am always open to your suggestions and criticisms which can only improve upon this process.

Finally, please also remember that the practice of family law in South Carolina, and especially the practice of family court mediation, can be brutally hard; and we family law attorneys should always rely upon each other for constant help, contribution and support.

The following is language I propose using, when I am acting as a mediator, for child support agreements involving “Shared Parenting”:

1. The mother and father acknowledge that the South Carolina Child Support Guidelines expressly provides for the following in matters affecting the parties’ “shared placement” of their (child) (children):

“For the purpose of this section, shared physical custody means that each parent has court-ordered visitation with the children overnight more than 109 overnights^[1] each year (30%) and that both parents contribute to the expenses of the child(ren) in addition to the payment of child support (emphasis added). If a parent with visitation does not exercise the visitation as ordered by the court, the custodial parent may petition the court for a reversion to the level of support calculated under the guidelines without the shared parenting adjustment. The shared physical custody adjustment is an annual adjustment only and should not be used when the proportion of overnights exceeds 30% for a shorter period, e.g., a month. For example, child support is not abated during a month-long summer visitation. This adjustment should be applied without regard to legal custody of the child(ren). Legal custody refers to decision-making authority with respect to the child(ren). If the 109 overnights threshold is reached for shared physical custody, this adjustment may be applied even if one parent has sole legal custody. …

Adjustments for each parent’s additional expenses on the child(ren) are made by adding the child(ren)’s share of any reimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the tribunal (emphasis added), less any extraordinary credits agreed to by the parent or ordered by the tribunal according to their income share. …”

2. In consideration of the above provision and in reaching a compromise agreement on the amount of the (father’s) (mother’s) current child support obligation, the parties agreed to employ the following formula:

a. Father’s gross monthly income:

b. Mother’s gross monthly income:

c. (Father’s) (Mother’s) health insurance premiums allocated for the child(ren):

d. Number of “overnights” for mother:

e. Number of “overnights” for father:

f. Alimony to be paid by (father) (mother), if applicable:

g. Child support or alimony being paid (by priority) by (father) (mother), if applicable:

h. Number of other children in the (father’s) (mother’s) household, if applicable:

i. Extraordinary expenses for the child(ren) paid by the (mother):

j. Extraordinary expenses for the child(ren) paid by the (father):

3. Based on this formula, the parties agree that the (father’s) (mother’s) current child support amount shall be $__________________ which shall be paid (weekly) (bi-weekly) (bi-monthly) (monthly), with the first payment due on ______________________, and with all subsequent payments due by each payment period “due date” thereafter.

[Add: Direct payment with 5-day affidavit clause before the payment is ordered through the court, or by direct-deposit, or by wage-withholding.]

4. In that the (mother’s) (father’s) payment of extraordinary monthly expenses for the child(ren) have been factored into the (father’s) (mother’s) established child support obligation, above, the parties agree and stipulate that the (father) (mother) shall have no contractual obligation to contribute any additional monthly expenses by or on behalf of the child(ren) unless the (father) (mother) voluntarily agrees to do so.

5. Future modifications of child support.

a. The parties stipulate, acknowledge and agree that in reaching an arms-length agreement regarding the issue of child support, set forth above (the amount, the method of payment, the period of time for payment, etc.), either party retains the right to request or seek a subsequent modification (increase or decrease) of the child support amount and/or method of payment based upon a substantial or material change of circumstances affecting either party.^[2]

b. For the express purposes of this agreement, both parties stipulate, acknowledge and agree that, in consideration of South Carolina Code Ann. §63-17-470 (13)^[3], in arriving at the amount of child support set forth in this agreement, the parties have neither exclusively based, nor exclusively used, nor exclusively relied upon the factors/criteria set forth in the South Carolina Child Support Guidelines. Furthermore, neither party can know nor predict any future events, occurrences or circumstances which may impact upon or effect this child support obligation; and, consequently, both parties expressly stipulate, acknowledge and agree there are no future circumstances, factors or criteria, of any nature or kind, which they considered to be “within the contemplation of the parties” as of the execution date of this agreement, unless otherwise expressly set forth in this agreement, and either party may seek a modification of child support and may be entitled to a modification of child support without being held to a “higher standard” as may have been set forth in the Floyd v. Morgan decision.^[4]

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[1]For the purposes of this provision, “overnight” is defined to mean “of, lasting or staying the night” [See: Webster’s New American Dictionary].

[2]For the purposes of their agreement, both parties agree that a “substantial or material change of circumstances” shall be defined to mean “a proper showing of a change in either the child’s needs or the supporting or supported parent’s financial ability”. Furthermore, both parties agree that “the party seeking the modification has the burden to show changed circumstances”. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006).

[3]SCCA, Section 63-17-470: “(13) agreement reached between parties. The court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child or children.”

[4]See: Floyd v. Morgan, 383 S.C. 469, 681 S.Ed.2d 570 (2009). N.B. The holding of Floyd v. Morgan that it took a higher burden of proof to modify support agreement was subsequently overruled in the case of  Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)