Supreme Court sets procedures for family court attorney fee awards

The December 3, 2014 South Carolina Supreme Court opinion in Buist v. Buist, 410 S.C. 569, 766 S.E.2d 381 (2014), sets forth procedures to be used in setting attorney fee awards in family court cases. This opinion recognizes the difficulties of preserving fee award issues when the litigants don’t know the court’s decision on attorney’s fees until the court renders its decision.

In Buist, Husband did not object to Wife’s attorney’s fee affidavit at trial. However after the court reached its decision on attorney’s fees, Husband filed a post trial motion raising the sole issue of his inability to pay the fees awarded in the time allotted. The family court denied Husband’s motion and he appealed. On appeal to the Court of Appeals, Husband made the additional argument that the family court had not correctly applied the factors set forth in Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991)[1] or E.D.M. v. T.A.M, 307 S.C. 471, 415 S.E.2d 812 (1992).[2]  The Court of Appeals held these issues were unpreserved. Buist v. Buist, 399 S.C. 110, 124–25, 730 S.E.2d 879, 886 (Ct. App. 2012). The Supreme Court granted certiorari.

While affirming the family court’s award of attorney’s fees, the Supreme Court addressed the appropriate procedure to object to an award of attorneys’ fees in family court:

(1) During the trial, a party may introduce an attorneys’ fee affidavit in support of the party’s request for an award of attorneys’ fees. To object to the propriety of a fee award, the opposing party may either contemporaneously object to the affidavit or, at some point prior to the close of the final hearing, request a hearing—then or later—on the sole issue of attorneys’ fees. The family court may exercise its discretion to grant a fees-only hearing, and is not required to grant such a request.

(2) If the opposing party either objects or is granted a later hearing, the family court may receive additional testimony and evidence or evaluate the record as it then exists, applying the Glasscock or E.D.M. factors, to decide the propriety of awarding attorneys’ fees.

(3) If the opposing party fails to object or request a later hearing, the family court may exercise its discretion to determine whether the amount of the award stated in the fee affidavit (i.e., the hourly rate and number of hours billed) is reasonable absent additional testimony. However, even if the family court finds the affidavit reasonable, it must still consider whether the proponent of the affidavit is entitled to attorneys’ fees pursuant to the Glasscock or E.D.M. factors.

(4) If the party against whom fees are awarded objects to the family court’s application of the Glasscock or E.D.M. factors in the final order, the party may raise the issue in a motion to reconsider pursuant to Rule 59(e), SCRCP; however, if that party chose not to object to the fee affidavit or request a later hearing, the party’s objection to the award must only be supported by information contained in the record. In other words, the party may not introduce additional testimony regarding any of the factors after the family court issues its final order.

The Supreme Court further “reject[ed] the court of appeals’ finding that the parties must contemporaneously object to fee affidavits to preserve objections to an award of attorneys’ fees for appellate review. A failure to object to the affidavit only indicates the party’s acceptance of the affidavit as a reasonable representation of the amount of fees the opposing party owes his or her attorney, thus obviating any need for the opposing party to produce additional evidence or testimony on the matter. The family court must still apply the Glasscock or E.D.M. factors to determine whether to award a fee, as well as the amount of the fee to award.”

Buist allows a family court litigant to raise issues related to application of the appropriate fee award factors in a post-trial motion. However, to present additional evidence regarding these factors in a post-trial motion, a party must either object to the other party’s fee affidavit or request a later hearing on fee award factors prior to the close of the final hearing. Family court litigants and attorneys should familiarize themselves with these Buist factors if they intend to dispute the other party’s fee request.

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[1] Glasscock outlines factors to consider in awarding reasonable attorneys’ fees, including: “(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results  obtained; [and] (6) customary legal fees for similar services”

[2] E.D.M. outlines factors to consider in awarding reasonable attorneys’ fees, including: “(1) the party’s ability to pay his/her own attorneys’ fee; (2) beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; [and] (4) effect of the attorney’s fee on each party’s standard of living”

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  • peter coit

    this is all well and good,but if the court does nothing to enforce the ruling,it is meaningless.bring back the debtors prison

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