The first changed a sentence, “For alimony purposes, Father’s stipulated monthly income was $12,008.67” to “Father’s stipulated monthly income was $14,643.” The second corrected footnote three from “The family court also awarded Mother $5,000 a month in child support to be secured by Father’s life insurance” to “The family court also awarded Mother $2,097 a month in child support to be secured by Father’s life insurance.”
These changes did not affect the Court of Appeals’ analysis or holding, or the analysis in my January 24, 2024 blog on this case.
The post Slightly modified Gandy opinion makes two small factual corrections first appeared on Gregory S. Forman, P.C..]]>I am in the midst of drafting a blog highlighting two very recent books on marriage. Perhaps my future includes a sideline as divorce lawyer providing marriage advice?
The post Feature in International Business Times on Navigating Marital Challenges first appeared on Gregory S. Forman, P.C..]]>Judicial notice, Rule 201, SCRE, is the procedure by which an attorney can ask a trial judge to take notice of a fact which is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
I often ask judges to take judicial notice of portions of prior orders or affidavits. I have asked judges to take notice that a particular date is a particular day of the week–useful if one is trying to prove who had physical custody of a child on a particular day and the order references days of the week. However, one can ask the court to take judicial notice of things that occur within the courtroom.
As an example, if a litigant is habitually late to court over a multi-day trial, one can ask the court to take judicial notice of when that litigant arrives to court. Absent a request for judicial notice, this fact would not become part of the trial record. Asking the family court to take judicial notice reminds the family court to note the litigant’s tardiness. This is relevant on how respectfully that litigant treats the court. In custody litigation, it may also corroborate concerns about that litigant’s ability to get children to school or other events in a timely manner. Absent a request for judicial notice, the judge might not consider this fact in his or her deliberation and the appellate courts would not be aware of this litigant’s habitual tardiness.
In-court judicial notice can be applied to a litigant’s or witness’ behavior. An outburst or hand gesture that would not appear on a testimony transcript may still be relevant on the issue of credibility. Ask the court to take judicial notice if this happens.
Judicial notice can be used creatively. At my most recent custody trial, a pro se, and allegedly indigent, litigant showed up for the last day of trial in Christian Louboutin shoes. I asked the trial judge to take judicial notice. He wouldn’t: he didn’t know what that shoe brand was. However, the litigant volunteered, “I used to be married to someone very wealthy and have a lot of shoes that are worth a lot of money…” The court made that a factual finding.
Judicial notice requests regarding in-court actions are limited only by an attorney’s thoughtfulness and power of observation. To the extent such requests can generate helpful factual findings, it can help with both trial results and the record on appeal.
The post Consider seeking judicial notice of what occurs in court first appeared on Gregory S. Forman, P.C..]]>Many of the unhappily married are clearly better off ending their marriage. A 20-something spouse with no children can end a “starter marriage” with little financial and emotional stress and no future entanglements. Ironically, the recent upswing in “grey divorce” makes sense. A couple who have maintained an unhappy marriage to raise their children to fledgling stage and establish sufficient wealth that they can live comfortably may find solo life or a different romantic relationship a more authentic way to spend their final years. And some marriages are so fraught that divorce is a clear best option. Disengaging from a spouse with serious untreated mental health or substance problems, or a propensity towards domestic violence or financial irresponsibility, is often the only path toward a stable life.[1] Such marriages may be capable of reconciliation, but they all require the other spouse’s behavior to change before reconciliation is possible.
Yet some spouses who sit across my desk have a marriage complicated by financial dependency or co-parenting obligations. Unwinding these entanglements is always painful—and will be a cause of lengthy, perhaps permanent, unhappiness. Ending such marriages due to mere unhappiness simply trades one source of unhappiness for another. When these marriages end, at least one spouse is typically—if not necessarily permanently—worse off financially. When these marriages end, the ability to cooperatively co-parent often ends. Even when cooperative co-parenting doesn’t end, parenting becomes more complicated when multiple households are involved.
Moreover, the cause of the unhappiness in many of these marriages are due to the spouses’ inability to handle situational stress in a healthy way. Modern middle-class America—with its stronger emphasis on parental investment and having “nice” homes—places physical, emotional, mental, and financial pressures on married parents. Balancing child(ren) and household-maintenance responsibilities with the needs for play, romance, and eroticism, isn’t easy. Marriages cannot sustain when these needs are treated as something optional for adults—as opposed to treating them as something that must be given less emphasis at a particular life stage.
Thus, I encounter many unhappy spouses, often parents of minor children, who are unhappy because their life has become unbalanced. It is easy for these folks to conclude that separation and divorce is the remedy to their unhappiness. It is hard to examine what decisions are leading to their life’s imbalance and how to create better balance. The easy route places the blame on their spouse. The hard route requires self-reflection and personal change.
Hence counseling. A period of individual counseling—not marriage counseling—prior to seeking a divorce lawyer can help folks identify how their own behaviors may be driving marital conflict. Often fixing those behaviors ameliorates many of the stresses that caused the marital unhappiness. Individual counseling can also help folks gain clarity on life goals. If one source of marital conflict is differing priorities on the balance between children, marriage, and work, understanding one’s priorities can help a divorce attorney determine the desired resolution.
A husband torn between career goals and family obligations might, through counseling, conclude that work is a priority. This isn’t a typical choice—our culture certainly discourages it. However, it may be his authentic choice. Perhaps the marriage could be saved through an honest discussion that requires him to consider what his wife might want from him to maintain a marriage in which she is stuck with a supermajority of household responsibility. If not, paying some alimony and forgoing joint custody would enable him to pursue career with a singular focus and less conflict.
A stay-at-home mother might, through counseling, conclude she really wants to delay any career until the children are older so she can be fully present while they are young. She might accept her disappointment with her husband as necessary to achieve that goal. She might then be less critical of her husband for not meeting all of her needs and more appreciative of a husband whose work enables her to achieve parenting goals. This would make her marriage better if not ideal. She might instead conclude that pursuing independence is more important than remaining in an unhappy marriage—in which case divorce and a career requiring childcare would become her goal.
The point is these folks shouldn’t pursue divorce due to mere unhappiness and then expect me to cure their unhappiness and determine which possible life path their litigation strategy should pursue. They should come to me with a clear and realistic life path and ask me to help them pursue it.
Individual counseling will often ameliorate the stressors that are causing marital unhappiness. Even when it doesn’t, such counseling will provide spouses with greater insight into their path forward. Expecting a divorce lawyer to provide a path to greater happiness through a heedless pursuit of marital dissolution often leads to greater unhappiness.
[1] The same is true for adultery that a spouse is unwilling to tolerate.
The post See an individual counselor before you see a divorce lawyer first appeared on Gregory S. Forman, P.C..]]>There is a certain subset of family law clients who will do what they please and refuse to heed their attorney’s advice. These follks are frequently the same clients who believe that they hire an attorney to “fight for them.” If that attorney isn’t getting them everything they want, they take that to mean their attorney is unwilling to “fight.”
Much of the most stressful and unpleasant part of family law practice is trying to prevent clients from making their situation worse. The same behaviors—frequently stemming from personality disorders or substance abuse issues—that lead folks to needing a family law attorney often manifest as a belief that they know the culture of family court better than the experienced attorneys they hire. These clients do what they please and refuse to accept counsel on the consequences of their reckless behavior. I can explain the anticipated ramifications of their actions but, if they don’t believe me, they will simply proceed incautiously until I seek to be relieved as their attorney or the other side asks the family court to intervene. At that point, heeding my counsel will likely not prevent the negative ramifications of recent misbehavior.
I’ve had more than one client tell me, the opposing counsel/party, or even a judge that they can do what they want and no one has the right to tell them otherwise. Judges have powerful remedies to disabuse folks of such foolish notions. One of my goals in representing headstrong clients is to prevent the imposition of these remedies. That often involves counseling clients to stop fucking around.[1] One hopes to prevent such clients from finding out what a family court judge can do.
A client’s belief that her or she can do whatever they want and reject their attorney’s advice without consequence is a pathway to horrific and avoidable outcomes. The attorney counseling a client to stop fucking around is merely trying to prevent that client from finding out.
[1] The South Carolina Lawyer Civility oath would caution the use of vulgar language with clients. The very clients most prone to “fucking around” are likely most prone to reporting their attorney to the office of disciplinary counsel.
The post “Fuck around and find out” in family court first appeared on Gregory S. Forman, P.C..]]>However, the fact that most discovery responses provide little of use does not mean that discovery responses are unimportant. In fact, they are vital. If few of the documents produced in discovery are relevant or useful, certain documents are vital in addressing financial issues: date of filing statements for equitable distribution; social security earnings history statements for alimony; tax returns and pay stubs for support issues. I’ve won a few custody cases thought written communications between the parties. And occasionally there is a nugget buried in phone or financial records.
Few answers to supplemental interrogatories or responses to requests for admissions provide trial fodder. But enough do that I routinely use the other party’s responses as exhibits at trial. Finally, the witness-list responses to standard interrogatories, and the documents produced in response to the standard interrogatory for “documents … that relate to the claim or defense in the case,” create severe limitations on the witnesses a party can call and the exhibits a party can introduce at trial.
For all of these reasons, family law clients need to treat responding to discovery seriously. The ramification of an untimely response to a request for admission is that the requests can be deemed admitted. Rule 36(a), SCRCP. Deny a request for admission without good cause and the court can require that party to pay the other party’s reasonable expenses, including attorney’s fees, for proving that fact. Rule 37(c), SCRCP.
Incomplete responses to standard interrogatories are also very problematic. Fail to list a witness one wishes to call at trial or fail to produce documents one wants to introduce at trial and one can be precluded from calling that witness or introducing that document. Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005); Bensch v Davidson, 354 S.C. 173, 580 S.E.2d 128 (2003).
Further, failure to respond timely or fully to interrogatories and requests for production or admissions can lead to a motion to compel. Rule 37(a), SCRCP. For the purposes of a motion to compel, an incomplete or evasive response is treated as a failure to respond. Rule 37(a)(3), SCRCP. The sanctions for a motion to compel start with being required to pay the moving party’s attorney’s fees and end with the striking of pleadings, the conclusive establishment of adverse facts, and/or limitations on presenting evidence at trial. Rule 37(b), SCRCP. A party can even be held in contempt for not answering discovery. Rule 37(b), SCRCP. I have seen litigants go to jail for refusing to provide complete discovery responses.
I don’t mind defending motions to compel where my client poses legitimate objections to discovery requests. But defending a motion to compel because my client simply failed to respond or responded in a half-hearted manner is a complete waste of resources—my client is likely to pay for my time to defend and the other attorney’s time to prosecute.
Early in my career, I would work with clients on their initial draft of discovery responses but I find that having clients do their initial drafts with me wastes their resources and results in incomplete and inaccurate responses. Now I provide clients a memo, available below, that explains how I want them to draft initial responses and provide them templates to draft their responses. This blog is intended to explain why resistance to drafting discovery responses is counterproductive. Clients don’t like responding to discovery, but I don’t like badgering clients to respond.
The post No one enjoys answering discovery—still don’t fight your attorney on responding to it first appeared on Gregory S. Forman, P.C..]]>One of the lecturers included a discussion of recent restraints she had litigated. Her list contained many of the newer items, including many that that parents routinely agree to and then routinely violate.[1] I’ve written numerous blogs about how these well-meaning restraints are problematic. However, her list also had restraints I’d never encountered regarding gun storage, life jackets on boats, use of appropriate car/booster seats, and limitations on screen time and video games.
I am not against safe gun storage, children having life jackets on boats, using appropriate car and booster seats, and making children spent time IRL. Because litigants in family court are no longer parenting children within intact families, restraints that prevent one parent from undermining the other parent’s relationship with the children may be necessary. However, the bulk of these restraints are merely designed to enforce good parenting. Intact families parent their children without court orders requiring them to not be intoxicated around the children or requiring them to use approved life jackets if taking their children boating. No one sees that absence as a problem in search of a remedy.
What is gained by imposing these restraints on parents who are not in intact parenting relationships? These restraints enable parents who don’t like the other to control the other’s parenting decisions. Perhaps the other parent is making bad decisions, but shouldn’t the remedy then be to limit or eliminate that parent’s time with the children? By choosing instead to impose restraints we limit parental autonomy, grant disputatious parents a greater ability to fight, embroil children in parenting disputes[2], and devote judicial and attorney resources to minor issues over parenting decisions.
Further, because some judges consider violations of child-related restraints to be non-purgable—one cannot undo what one has done—they impose criminal contempt sanctions for violations. How many attorneys have informed their clients that they might go to jail if they agree to the current litany of restraints and then, in a moment of frustration, curse around—not even at—their children?
Personally, I preferred custody litigation when the focus was on who was getting what time with the children and who was making major decisions for the children. I’ve never seen a need or desire to micromanage parents and I find it exhausting to represent parents who are intent on micromanaging the other parent. I acknowledge I’m getting old. Perhaps I lack the patience to argue over silly things. But I do not look forward to a culture in which litigating life jacket requirements or car safety seats becomes routine. My colleagues shouldn’t either.
[1] Every family law attorney I know acknowledges swearing around their children. Yet most of these attorneys routinely have their clients agree to restraints against “using profanity in the presence of the children.”
[2] An increasingly common restraint prevents children sixteen years old and younger from attending or watching R-rated movies and prevents seventeen year olds from doing so unless both parents agree. How old does one think such children are when they first learn they cannot see movies their peer see? What explanation can you give such child other than “because your parents agreed to it” or “because a court ordered it”? How satisfied/happy does one think this child will be upon hearing that explanation?
The post Are we headed to an encyclopedia of child custody restraints (and is that something we actually want)? first appeared on Gregory S. Forman, P.C..]]>During the closing Q&A, a participant asked if any of the guardians on the lecturer panel found it noteworthy when one parent referred to the other parent’s home as “dad’s house” or “mom’s house.” The implication was that such parents did not consider the other parent’s home to also be the child(ren)’s home and that such a viewpoint was potentially noteworthy.
Such a concern can only exist within the context of a joint-physical-custody culture. When I began practicing family thirty years ago, 50-50 physical custody was as rare as the proverbial hen’s teeth. In a culture in which the child lived with one parent most of the time, and visited the other parent alternating weekends, no one perceived the child as having two homes. Instead, that child shared a home with a custodial parent and visited the non-custodial parent in that parent’s home. It is only a culture in which both parents have approximately equal time can the concept of the child having more than one home make sense.
While I applaud the trend away from turning fit parents into every-other-weekend daddies, that trend did not have to lead to children having two homes. That it did is both a failure of imagination and a failure to truly consider the best interests of the child.
When either parents or children, but not both, can have a fixed residence, parents, as adults, should be expected to adjust to the instability of a shifting residence. This imposition is further justified by it being parents, not children, who made the decision not to reside with a co-parent. When our culture began its trend towards joint custody, the family courts could have made the parents maintain a fixed residence for the children while the parents searched for accommodations during the times they did not have the children. Instead, we have a culture in which children bounce between their parents’ residences. And when parents demand 5/2/2/5 joint custody arrangements—as opposed to week-on/week-off—it means the children have to transition between households twice, rather than once, a week. Very destabilizing.
We appear to have mindlessly fallen into this system because we never considered these transitions to be a great imposition on children, so we never considered making a great imposition on parents. If we were designing the joint custody system from scratch, and if we truly put the children’s best interests first, we would not have created a system in which parents have a fixed residence, children lack a fixed residence, and children are expected to transition once or twice every week between homes. Instead, we have a joint custody system that is hostile to children and their desire for stability.
Perhaps rather than worrying about the nomenclature joint-custody parents use to describe the other parent’s home, we should create a system in which joint-custody parents have two residences while their children have one.
The post Make the parents bounce first appeared on Gregory S. Forman, P.C..]]>First, the Schedule of Basic Support Obligations now goes up to $40,000 per month in combined income. The 2014 version only went up to $30,000 per month. Under these new guidelines, fewer cases will fall outside the guidelines due to high income.
Second, the Schedule of Basic Support Obligations appears to generally be higher for the same income level—often by 25% or more. This increase evidently was intended to take inflation into account but that same inflation results in increased income. I believe this increase reflects a determination that it is becoming increasingly expensive to raise children no matter one’s income level and that parents in general are devoting a greater share of their incomes to child-rearing expenses. Given the trends of the past decade—larger and more expensive homes and vehicles; smartphones for younger and younger children; more time and money devoted to extracurricular expenses and enrichment—this is likely an accurate assessment. Whether child support obligations should help fund this trend appears not to be something the drafters considered.
The third change is a provision for crediting “Extraordinary Medical Expense” in the child support award:
Extraordinary Medical Expense…Medical expenses that incurred on a regular basis should be incorporated into the monthly support calculation for concurrent payment as opposed to reimbursement. The amount of such extraordinary medical expenses must be readily determinable and incurred regularly, as determined by the Court. Examples could include professional counseling and allergy treatments. Any such expenses classified as extraordinary should not be included in any reimbursement addressed above.
This addition should lead to less fighting for reimbursement when a medical expense is large, recurring, and extraordinary. However, when that expense is eliminated, it will entail the non-custodial parent going back to court to get child support lowered. Essentially less litigation over reimbursement and more litigation for modification.
The post For the first time in a decade, South Carolina updates its child support guidelines first appeared on Gregory S. Forman, P.C..]]>The Court of Appeals slightly modified its opinion on March 20, 2024
The January 24, 2024, Court of Appeals opinion in Gandy v. Gandy affirmed the family court’s award of custody to Mother and affirmed a relocation with the children to New Orleans but reversed her award of rehabilitative alimony.
Gandy stems from a divorce case involving two children and a ten-year marriage. During the marriage, Mother stayed home with the children. The parties lived in Myrtle Beach but Mother’s family was from New Orleans. Custody, relocation, and alimony were all contested. At trial, Mother presented testimony from a vocational expert who believed she could earn between $23,000 and $47,000 immediately in the New Orleans area but, if she spent three years obtaining a nursing degree, could earn $60,500. She also noted she was offered a job in New Orleans that paid $60,000 per year and that she and the children could live rent-free at a house behind her parents’ home.
After trial, the family court granted Mother primary custody and awarded her $5,000 per month in child support. It allowed her to relocate to New Orleans. Based on Father’s stipulated monthly income of $12,008.67 for alimony, it awarded her eight years of $2,000 per month rehabilitative alimony. Both parties filed Rule 59(e) motions. The family court reduced Mother’s alimony term to seven years but did not otherwise modify its ruling. Father appealed.
The family court affirmed the award of primary physical custody to Mother. It noted concerns over Father’s alcohol use and concerns the children’s therapist had regarding Father’s anger, especially as it related to his disciplinary style. The therapist noted Mother better adapts her disciplinary style to what each child needs, without being inappropriately permissive.
The court noted concerns regarding Mother’s efforts to alienate Father from the older child but the family court did “not believe the efforts of Mother were necessarily intended to destroy the relationship with Father and the children.”
Mother’s history as the primary caretaker, her greater attunement to the children’s emotional needs, and her ability to discipline the children more effectively, were reasons the Court of Appeals affirmed the family court’s custody determination.
The Court of Appeals also affirmed the relocation. The Court of Appeals cited with approval the family court’s finding that, “appellate jurisprudence on this issue shows a trend in favor of recognizing the benefits of relocation in a proper case.” It further cited the family court’s findings that:
[This court] is left with an exceptionally difficult decision to make. All of the experts in this case indicated that it would be better for the children to remain in Horry County with both parents. On the other hand, Mother, as the primary custodial parent, has clearly established that the Latimer[1] factors weigh in favor of her being permitted to relocate with the children to New Orleans. As the Court of Appeals stated in Rice v. Rice, 335 S.C. 449[, 517 S.E.2d 220] (Ct. App. 1999), “forcing a person to live in a particular area encroaches upon the liberty of an individual to live in the place of his or her choice, the court’s authority to prohibit an out-of-state move should be exercised sparingly.” Unfortunately, this Court is unaware of any case law since Latimer where such a prohibition has been upheld.
The family court acknowledged that ”while the children’s relocation with Mother will undoubtedly come at the expense of less time with Father and their paternal grandparents, Mother’s primary custody of the children is in their overall best interests.” It further noted:
Father will be able to maintain his relationship with the children through regular weekend and long weekend visits, the majority of school breaks and holidays, and through daily electronic visitation. Father clearly has the ability, with his parents’ professed support, to afford air travel on a regular basis and Mother shall contribute to the travel costs…
In affirming the relocation, the Court of Appeals noted Mother’s greater support network in New Orleans, whereas Father and his family offered no assistance to aid her in staying in Myrtle Beach. Mother had no ties to Myrtle Beach but could live very close to her parents, and rent free, in New Orleans. The children could attend the same school in New Orleans, but not in Myrtle Beach. Mother had better job prospects in New Orleans. The son’s pulmonologist was much closer in New Orleans than in Myrtle Beach. Accordingly, the Court of Appeals affirmed the relocation.
The Court of Appeals reversed the award of rehabilitative alimony. It held:
Our precedent is clear that the purpose of rehabilitative alimony is to encourage a dependent spouse to become self-supporting. We can find no evidence in the record supporting the notion that Mother requires seven years to successfully transition back into the workforce. To the contrary, Mother successfully obtained employment, in an area in which she has experience, with full benefits and a starting salary that was significantly higher than her vocational expert estimated. Moreover, Mother’s living expenses in New Orleans are drastically reduced as she is only responsible for paying the utilities associated with the home. Although Mother initially discussed relying on familial support to go back to nursing school full-time for three years, she testified numerous times that she no longer planned to pursue that occupational path after receiving the job offer from the children’s hospital.
Based on the foregoing, we reverse the family court’s award of rehabilitative alimony to Mother, finding this matter involves the rare instance when the former dependent spouse, Mother, has already become sufficiently self-supporting prior to the end of the case. Thus, it would be inequitable to require Father to pay rehabilitative alimony.
Citations omitted.
Gandy continues the recent trend of affirming reasonable relocation requests and presents a rare example of the appellate court reversing an alimony award because alimony was found unnecessary.
[1] Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004).
The post Court of Appeals affirms custody and relocation but reverses Mother’s rehabilitative alimony award first appeared on Gregory S. Forman, P.C..]]>