Someone didn’t get the memo

Posted Monday, February 12th, 2018 by Gregory Forman
Filed under Appellate Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

As part of the February 7, 2018 Shearouse advance sheet, the Supreme Court asked the South Carolina General Assembly to approve a change to the rules of appellate procedure. One of the proposed changes would add a “Standard of Review” section to appellate briefs:

(D) Standard of Review. If all the issues are governed by the same standard of appellate review, the Brief shall contain a section with the heading”Standard of Review,” which shall concisely set forth the applicable standard of review with citations to relevant case law establishing the standard. If the same standard of review is not applicable to all of the issues, a separate section with a heading of “Standard of Review” shall be included at the start of the argument on each issue with citations to relevant case law establishing this standard of review.

Given the December 2017 Supreme Court grant of certiorari and immediate remand for failing to apply the correct standard of review in the appeal of Stoney v. Stoney, a requirement that briefs contain a standard of review statement makes sense. When the standard of review strengthened my argument, I was already including such a statement in the brief. It seems that, almost seven years after Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), family court appellate attorneys and the Court of Appeals needed the reminder that family law appeals have a broad–de novo–standard of review.

To demonstrate the point that the proper standard of review continues to evade the Court of Appeals is the unpublished February 7, 2018 Court of Appeals opinion in Domnick v. Domnick. There the appellant challenged a $17,000 attorney fee award. The Court of Appeals summarily affirmed this award with a citation to Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) (“Where an attorney’s services and their value are determined by the trier of fact, an appeal will not prevail if the findings of fact are supported by any competent evidence.” (emphasis in original).

The gulf between de novo review [the appropriate standard] and “any competent evidence” is vast–so vast that if the appellate courts applied an “any competent evidence standard” almost any family court determination on child custody, alimony, or property division would be impossible to overturn. Despite the reminder of Stoney, the Court of Appeals is still not uniformly applying the correct standard of review to family court appeals.  Perhaps a requirement that appeal briefs cite the standard will help.

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