The July 15, 2020 Court of Appeals opinion in Couch v. Couch, 431 S.C. 170, 847 S.E.2d 260 (2020), affirmed a family court order requiring a Father to pay $222,003 in attorney’s fees, $20,294.18 for the GAL’s outstanding balance, and $6,250 in GAL fees Mother had already paid. Couch seriously smashes the records for the highest fee award affirmed by the South Carolina appellate courts in a published opinion.
The opinion describes a long history of custody litigation brought by the Father, with him often making abuse allegations that end up being disproved or unfounded. In 2015 he filed the case at issue, alleging Mother was negligent and abusive.
At trial, the family court did not change custody. Father, with an income of $9,341 per month, incurred $366,226.74 in total legal fees and litigation costs. Mother, with an income of $2,652.36 per month, incurred $252,304 in total legal fees and litigation costs. The family court determined Mother was entitled to an award of attorney’s fees. It found that “[a]lthough Father prevailed on some small issues, the results obtained were substantially beneficial to Mother.” Additionally, the family court determined Father was in a superior financial position compared to Mother; found that although ordering Father to pay Mother’s fees might cause him a hardship it was likely impossible for Mother to pay those fees herself; and found the payment of attorney’s fees and costs would have a far greater impact on Mother’s standard of living than Father’s. It required the payment within ninety days. After his motion for reconsideration was denied, Father appealed.
The Court of Appeals affirmed the fee award. It found Mother prevailed on every issue except minor ones. It noted Father’s great ability to pay fees despite his lack of assets and substantial debt. In affirming the amount of fees awarded, the Court of Appeals noted:
This was a difficult, complex, and contentious custody dispute that lasted nearly two years and required extensive discovery. Furthermore, we agree with the family court’s finding that Father’s actions in this case, including waiting until the last minute to file and serve documents, filing numerous and sometimes questionable motions, and his general behavior throughout the underlying incident and litigation evince uncooperativeness and an intent to make this litigation more contentious. We agree with the family court that these factors further complicated the case.
We find the time Mother’s counsel spent on this case was reasonable and necessary. Mother obviously had to defend the case, respond to motions, and engage in extensive discovery. Had she not responded, she faced the possibility of losing custody of her children. Counsel’s fee affidavit indicated Mother’s attorneys spent over 1,100 hours on this case and included records breaking down how that time was allocated. Given the fact that Father’’s counsel spent approximately 1,500 hours on this case, we find the time Mother’s counsel spent working on this case can only be viewed as reasonable under the circumstances. We note the family court did not order Father to pay the full amount of Mother’s attorney’s fees and costs.
While finding the award of fees and costs was justified, the Court of Appeals could not affirm a requirement that Father assemble $250,000 in ninety days. It noted:
The core problem can be summarized in two sentences: here we have a litigant who haled his former spouse into court and who engaged respected lawyers to vigorously represent him, requiring his ex-wife to do likewise. His financial declaration suggests he can hardly afford his own fees, yet he had no problem incurring those fees and there is a years-long pattern of him routinely finding money to fund repeated lawsuits against his ex-wife.
Determining it lacked current information on the parties’ financial situation, it remand this matter for proceedings to develop a payment plan.
Couch demonstrates that the Court of Appeals will, in some circumstances, affirm an attorney fee award that is greater than a party’s annual income. Just last year, in an unpublished opinion, I defended an appeal in which the Supreme Court affirmed a $50,000 fee award against a Father who earned $60,000 a year. A fee award representing 2 ½ times a litigant’s income is unprecedented but this case appears to justify it. Father had a history of unsuccessfully pursuing vexatious litigation against Mother. Father was able to pay his own attorneys even more than Mother’s attorneys charged her. Father initiated this action and did not succeed. Either Mother had to pay these fees, Father had to pay these fees, or Mother’s attorneys had to forgo their fees. Making Father pay these fees appears the least unjust result.
Wealthier litigants pursuing meritless family court litigation should consider Couch a warning.
“Father” didn’t file anything, his attorneys did. Where does the responsibility fall on his attorneys for “waiting until the last minute to file and serve documents, filing numerous and sometimes questionable motions”? When I have clients who want me to do that sort of thing, I tell them to take a hike.
Attorneys are the agent of the client.
Unfortunately some lawyers do wait until the last minute to file, notify opposing party just before the court date instead of providing notification at time of filing, request multiple continuance and file questionable motions with no evidence to back up claims. It’s good to see that the courts can recognize these tactics and help the defendant.
The father paid over $40,000 for what was likely an attorney who almost assuredly has no knowledge concerning family dynamics, child development, alienation, estrangement, etc. to interview, also likely without methodology a number of people and review some paperwork which consisted of mental health parameters of which he is unqualified to formulate an opinion on. Hell, not a bad side gig. There is no place for GALs in family court.