South Carolina Supreme Court September 2012 case of the month fizzles into unpublished dud

Posted Wednesday, November 21st, 2012 by Gregory Forman
Filed under Attorney's Fees, Contempt/Enforcement of Orders, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Ex parte: Belinda Davis-Branch. In re: Larry Solomon v. Betty Jean Solomon was the South Carolina Supreme Court’s September 2012 “Case of the Month.”  Had the Supreme Court affirmed the family court’s ruling–which I was almost certain it wouldn’t–it might have revolutionized family law attorney fee collection practice in South Carolina and made it much harder for family law clients to avoid paying their attorneys.

In Davis-Branch v. Solomon, the parties entered a separation agreement containing the typical language on attorney’s fees: “[e]ach party shall pay his/her own attorney’s fees, costs and expenses associated with the action.”  When Ms. Solomon failed to pay her attorney the remaining balance, that attorney brought a contempt action in family court, alleging that the parties’ agreement was an enforceable court order requiring Ms. Solomon to pay her the outstanding balance.  The family court held Ms. Solomon in contempt and issued a bench warrant for her arrest.  Ms. Solomon then moved the family court to set aside the contempt order and to reconsider its decision.  When the family court refused to do so she appealed.

I would have thought that Bailey v. Bailey, 312 S.C. 454, 441 S.E.2d 325 (1994), foreclosed the claim brought by Ms. Solomon’s attorney.  In Bailey the Supreme Court held that S.C. Code § 20-3-125, which allows “[a]ny attorney whose client has been awarded an attorney fee by the family court may petition the family court for the circuit in which the order was filed to enforce the payment of such fee,” did not authorize the attorney to enforce a claim against one’s own client for attorney’s fees in the family court.

Further, in Huff v. Jennings, 319 S.C. 142, 459 S.E.2d 886 (Ct. App. 1995), the Court of Appeals held that similar language in a divorce decree did not entitle the attorney to a lien on the client’s property, noting:

The Wife’s complaint requested that Huff pay the Wife’s attorney’s fees; there was no request that the Wife be ordered to pay her own fees. Under Jennings’s interpretation of the order, the family court effectively awarded, without notice to the Wife, an indeterminate amount of fees when such relief was never requested. This interpretation clearly raises substantial ethical and constitutional questions. We therefore conclude that Jennings’s lien filed pursuant to S.C. Code § 20-3-145 was invalid, because she was not awarded a fee by the court.

In the November 21, 2012 unpublished opinion in Davis-Branch v. Solomon, the Supreme Court vacated the contempt order holding:

We hold that a family court order requiring each party to pay her own attorney’s fee is not enforceable by the attorney against her client in family court through use of the court’s contempt powers.  The ruling of the family court thus constituted an abuse of discretion.

As previous case law suggested this ruling was not surprising.  If family law attorneys could use the family court’s contempt powers to enforce their fee claims against their clients, they could allow clients to runs tens or hundreds of thousands of dollars behind on fees knowing that they could use the threat of jail to enforce these obligations.  When family court litigants fall behind on their attorney fee bill, it is up to their attorneys to determine whether and how much they should allow the client to get behind on fees before seeking to be relieved as counsel.  Giving attorneys the ability to place clients (often former clients) in jail because they cannot or will not pay fees would give family law attorney too much and too inequitable power over their clients.

Although, in theory, it might be nice to have the ability to incarcerate those who do not pay us what they owe, there’s good reasons we don’t throw debtors in prison anymore (except for debtors who don’t pay their child support or alimony, which is already problematic).  I am amazed a family court judge ever thought we had such power.

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