Court of Appeals affirms custody, property division and fees

Posted Thursday, April 9th, 2015 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Equitable Distribution/Property Division, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Can anyone explain the Court of Appeals’ thought process in what family law decisions it will publish? On April 8, 2015, mere weeks after deigning to publish two TPR reversals that both involved novel legal issues, it published its first family court opinion of 2015 (not counting a revised opinion in Srivastava v. Srivastava411 S.C. 481, 769 S.E.2d 442 (Ct. App. 2015))  in the case of Brown v. Brown412 S.C. 225, 771 S.E.2d 649  (Ct. App. 2015). Brown clarifies a small and technical aspect of equitable distribution but otherwise addresses no novel legal issues.

The parties in Brown had an eight-year marriage and Husband was away from home for almost all of that time: first on military duty and later as a government contractor. While Husband was overseas on military duty Wife endured a high risk pregnancy, eventually giving birth prematurely to three triplets who had serious health problems. The next year Wife was bedridden due to health problems for five months, during which time Husband came home for a few days before returning overseas. When Husband returned from this military assignment he was stationed in California and Wife relocated there with the children for a period on nine months before returning to South Carolina. Husband then went to Texas and Arizona for training before beginning another deployment. Wife went into early labor while pregnant with their fourth child and Husband returned from his deployment for six days before returning to the Middle East.

In 2007 Husband returned from his deployment for a week before taking a government contractor position in Middle East for 3 ½ years. When that position ended he returned to live with Wife for less than a month before beginning a new contractor job in Virginia. Wife then filed for divorce alleging that, in the four years after the birth of their fourth child, Husband had only lived in the marital home ninety-four days. After being served with the divorce, Husband moved to Augusta, Georgia to be closer to Wife’s Clemson residence and sought custody.

At the first custody hearing the court awarded Husband three days every week, with the understanding that his mother would care for the children during much of his time. When his mother was no longer able to assist, Wife was awarded primary custody. At trial, Husband argued he should have primary custody of the children, and presented allegations that Wife was neglecting the children’s medical needs. The family court rejected Husband’s allegations and awarded Wife primary custody. It also awarded her 49.60% of the marital estate and made Husband pay 60% of the guardian’s fee and 61% of Wife’s attorney’s fees.

The Court of Appeals affirmed the almost equal division of the marital estate despite Husband’s much greater financial contributions. While agreeing that an eight-year marriage did not raise the presumption of an equal division of marital assets that exists in a long-term marriage, it held the nearly equal division was not inequitable given Wife’s caretaking for the parties’ children without much assistance from Husband, and her accommodation to his career. It also rejected Husband’s claim that Wife had mismanaged his earnings while he worked overseas.

The Court of Appeals affirmed the family court on custody. It noted conflicting testimony regarding Wife’s handling of the children’s medical condition and deferred to the family court’s credibility determination on this issue. The children’s pediatrician testified that the children were healthy and that Wife showed appropriate concern regarding their medical needs. The Court noted Husband had no issues with Wife’s care for the children until she filed for divorce and gave great weight to Wife being the primary caretaker of the parties’ children during the marriage.

Finally the Court of Appeals affirmed the fee awards. It noted Wife was the prevailing party in the contested issues of custody and property division. In affirming an unequal division of the GAL’s fees, the Court of Appeals rejected Husband’s claims that Wife’s litigation conduct was uncooperative. In support of this finding it noted Husband’s false statements and omissions in his submissions to the family court as undermining his credibility. Further, as the family court had previously allowed Husband to pay part of the guardian’s fee from joint funds, the Court of Appeals determined he failed to demonstrate prejudice from the unequal allocation of guardian’s fees.

That a Wife who raised the parties’ children while Husband’s career kept him away should get custody and half the marital estate is not surprising. That a Husband who unsuccessfully litigated custody and equitable distribution should have to pay some of Wife’s fees is also not surprising. Other than confirming that an eight-year marriage does not lead to a presumption of an equal division of the marital estate, there is nothing novel or surprising in the Brown opinion.

3 thoughts on Court of Appeals affirms custody, property division and fees

  1. MJ Goodwin says:

    I find that the Court generally seems to start with the idea that all marital assets will be divided 50-50. Any attempt to change that division is met with skepticism. But maybe that is just my experience.

  2. I have not done any recent analysis but years ago I put all decisions on a spreadsheet. Then each judge or justice chose his or her own font. For example, Judge Ralph King Anderson used a horrid Arial Bold. I determined that Judge Goolsby, one of the better writers but more modest judges, had far fewer published opinions that other some other judges. I then thought that the author made the publication call. I am not sure how it is done today–except that we know the Supreme Court can now “depublish” opinions.

  3. David Wilson says:

    I wonder why the family court and Court of Appeals in Brown and other cases use terms such as “primary custody” when the statute defines “sole custody” and “joint custody” but never “primary custody?”

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