2017 again features a dearth of published family court opinions

Since I started this blog in 2009, I have begun the following year with a table listing the prior year’s published opinions and briefly discussing the cases I believed most consequentiiial. Early on I commented on about a dearth of published opinions, such as in 2011 when I “complained” there were “only” thirty-five such opinions. There hasn’t been nearly that many any year since. In 2015 the total dipped below a dozen for the first time, when there were only eight published opinions. The total increased a bit–to eleven–in 2016. Yet 2017 hits a record low: only six published family law opinions–one of which, Doe v. State, wasn’t even a family court case but an equal protection challenge to the Protection from Domestic Abuse statute.

Moreover, there were few noteworthy unpublished opinions. I blogged about two, but the interesting issue in one of those opinions–whether a de facto custodian had rights equal to an actual parent–was vitiated when, upon rehearing, the Court of Appeals held the appellant was not a de facto custodian.

Of the six published opinions, four were noteworthy. Doe is obviously important for any partner in a same-sex relationship seeking protection from domestic abuse. Ashburn v. Rogers provides an opening to challenge paternity based on fraud after paternity has been established but doesn’t provide clear guidance on when such paternity fraud claims might be allowed. Sweeney v. Sweeney is an every-necessary reminder that inaccurate financial declarations have consequences.

Yet, the most noteworthy opinion might be last month’s brief Supreme Court ruling in Stoney v. Stoney, which remanded a local family law attorney’s own domestic appeal back to the Court of Appeals.  It included instructions to apply a de novo review standard and clarified that an abuse of discretion finding is not required to reverse a family court decision on appeal. Essentially Stoney reminds the Court of Appeals (and attorneys considering appeal of family court determinations) that an appeal, while limited to the facts and issues presented to the family court, vests the appellate court with complete authority to make its own factual determinations. Although Ms. Stoney obtained substantial beneficial results in the Court of Appeals, the Supreme Court’s opinion is that, perhaps, she should have obtained even more beneficial results.

There are myriad reasons for the remarkably small number of published family court appeals, but the biggest one is that few South Carolina family law attorneys are thinking appeal (and therefore establishing a record) when they try their cases or are encouraging appeals when they consider the results erroneous. The complaints of attorneys who obtained unfavorable and erroneous results that they would not appeal are frustrating–and I hear such complaints monthly. As Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011) articulated, and Stoney confirms, the standard of review for family court appeals is extremely broad.

I assume most litigant prefer an attorney who successfully overturned a bad ruling on appeal over an attorney who lamented the poorly reasoned decision of a family court judge but took no further action.  Having a trial attorney who considers appeal issues during trial and isn’t shy about appealing an unfavorable and poorly reasoned decision is increasingly important. While few family court litigants consider their attorney’s ability to appeal when selecting their trial attorney, they would be better off doing so.  Stoney makes such consideration increasingly important. Any case worth trying is worth appealing.  This doesn’t mean that all disappointing results at trial merit an appeal, only that any issue worthy of the expense of a trial is worthy of the expense of an appeal.  If more attorneys understood this perhaps, in a few years, I won’t end the year with a single-digit table of cases.

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