Court of Appeals rules prevailing party shouldn’t have to pay the other side’s attorney’s fees

Posted Monday, June 9th, 2014 by Gregory Forman
Filed under Attorney's Fees, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The June 4, 2014 Court of Appeals opinion in Brown v. Brown408 S.C. 582, 758 S.E.2d 922 (Ct. App. 2014), reversed a $5,000 attorney fee award the family court made to Mother despite Father prevailing on the contested issue of which child support worksheet to use.

The primary issues at trial were the number of overnights Father was spending with the children and whether the court should apply the shared custody child support guidelines (Schedule C), as Father urged, or the sole custody guidelines (Schedule A), as Mother urged. The family court found Father more credible on the issue of the number of overnights he had the children and further decided to employ Schedule C due to Father’s significant contribution of direct support for the children. However the family court ordered Father to pay Mother $5,000 in attorney’s fees. The family court determined an award of attorney’s fees was appropriate because Father was in a better financial position to pay attorney’s fees. While the family court acknowledged that Father was more successful in the action, the family court concluded “this was a relatively simple case which was drawn out of proportion by Father.” After his motion to reconsider was denied, Father appealed.

The Court of Appeals reversed. Reviewing the factors from E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992), the Court of Appeals determined that three of the four factors favored neither party: their financial conditions; their ability to pay their attorney’s fees; and the respective impact the fees will have upon each party’s standard of living. The fourth factor–prevailing party–favored Father. The Court of Appeals further disagreed with the family court’s determination that the case was drawn out of proportion by Father, as there was no evidence that Father’s behavior prolonged the proceedings. As much of the litigation involved Father’s efforts to have Schedule C guidelines apply–efforts Mother resisted throughout the litigation–the Court of Appeals did not agree that Father’s litigation conduct justified an award of fees to Mother.

I assisted Father and his attorney in developing the strategy to obtain application of Schedule C guidelines and was as surprised as they were when the family court awarded Mother fees despite their prevailing on this issue. An appeal over $5,000 in fees was likely done for principle but kudos to Father and his attorney for appealing and prevailing on an unjustifiable fee award.

3 thoughts on Court of Appeals rules prevailing party shouldn’t have to pay the other side’s attorney’s fees

  1. mj says:

    I have long been an advocate for a “loser pays” system. We would see far fewer meritless motions and actions.

  2. Couldn’t agree with MJ more.

  3. Nick says:

    Completely agree with MJ, doing this I think will certainly start cleaning up the system real fast.

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