What de novo appellate review is actually doing

Posted Tuesday, November 12th, 2019 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

I thought it noteworthy when the Supreme Court remanded Stoney v. Stoney, 421 S.C. 528 , 809 S.E.2d 59 (2017), back to the Court of Appeals to apply an even less deferential (to the family court) standard of review for an appeal in which the Court of Appeals had granted the appellant practically everything she sought on appeal. Shortly thereafter I noted that this less deferential standard of review made it even more important that family law attorneys know how to do an appeal–if only to establish a good record for de novo review.

However, quite recently, it has become apparent that the Supreme Court is giving very little deference to the family court’s factual findings if it believes the lower court record justifies a different result. In Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019), the Supreme Court reversed the family court’s finding of a common-law marriage, even discounting the family court’s credibility determination that Ms. Thompson represented herself as married at an art opening around Christmas 1989. Earlier this month, in Bazen v. Bazen, 428 S.C. 511, 837 S.E.2d 23 (2019), it found Mother’s behavior towards Paternal Grandparents to be deceptive and contemptuous, but it still greatly reduced the amount of visitation the family court awarded these grandparents. And to watch the October 30, 2019 oral argument in Conits v. Conits, is to observe a Supreme Court giving little deference to the family court in deciding whether a farm in Greece is 3 acres or 30 acres and whether it has a value of approximately $40,000 or $1.4 million.

Now some areas of family law are relatively settled and uniform. For over 90% of child support cases, the child support guidelines will supply the correct child support figure. While parties can still differ over income or day care figures to be used, the differences will rarely justify the cost of an appeal. For most equitable distribution cases, a 50/50 division of marital assets is likely (and the distribution will rarely get more extreme than 60/40). Litigants can still fight (and appeal) the identification of marital property and its valuations–but again few such cases are likely to be cost effective to appeal.

However, alimony and child custody are largely discretionary decisions by the family court. While many custody determinations are relatively obvious, fewer visitation schedules are. While the decision whether to award alimony is often obvious, the amount of alimony to be awarded tends to be based largely upon the proclivities of each individual family court judge. Child custody and visitation determinations can be extremely consequential to a parent’s happiness; appealing an unfavorable result is frequently justified. Alimony often lasts for decades; again, appealing an unfavorable result is frequently justified.

I doubt the Supreme Court intended Stoney to be an invitation to flood the appellate courts with custody/visitation and alimony appeals. But for folks with the budget to seek a broad appellate review of disappointing lower court results, there’s little reason not to.

One thought on What de novo appellate review is actually doing

  1. Will Hammett says:

    Perhaps it will encourage more equalized decisions. I never liked minimizing time with one parent if they both lived close, absent exceptional circumstances. Good way to ward off appeals is to give the loser less to win on appeal.

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