Refiled opinion in Srivastava makes revisions to equitable distribution ruling

On February 25, 2015 the South Carolina Court of Appeals refiled its opinion in Srivastava v. Srivastava411 S.C. 481, 769 S.E.2d 442 (Ct. App. 2015). While the refiled opinion makes minor languages changes to the rationales on issues of child support, attorney’s fees, and condonation/adultery, the major revision was made to its equitable distribution award.

In the original December 23, 2014 opinion the Court of Appeals had reversed and remanded the family court’s equitable distribution award because it believed the family court had failed to consider the tax consequences of awarding Wife most of her property in the form of a pre-tax retirement account that she might soon need to liquidate. On reconsideration, the Court of Appeals modified that portion of its opinion, and affirmed the family court, by finding that Wife had not preserved this issue for appeal.

The easiest way for appellate courts to address issues is to find them unpreserved and thereby affirm the lower court. It is surprising that either Husband did not point out Wife’s preservation failure in his briefing or that the Court of Appeals did not note this preservation failure in its initial opinion. However, Srivastava is no longer good law on that one issue. While prior case law noted that the tax consequences of an anticipated liquidation of retirement assets is a factor in equitable distribution, the initial Srivastava opinion was the first reported South Carolina opinion to find err for failing to do so. Now there is no such reported opinion.

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