Out of control but not crazy

Posted Thursday, October 22nd, 2020 by Gregory Forman
Filed under Alimony/Spousal Support, Attorney's Fees, Child Support, Equitable Distribution/Property Division, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The October 21, 2020 South Carolina Court of Appeals opinion in Rogers v. Rogers partially answers the question of just how crazy a family court litigant must be in order to have it be reversible error for the court not to appoint that litigant her own guardian after the conclusion of trial. Evidently, one must be crazier than Ms. Rogers, whose litigation misbehavior was truly impressive.

The Rogers appeal followed divorce litigation in which Wife’s behavior was a constant disruption. She removed and hid money from marital accounts, trashed the marital home and sold many of the fixtures, refused to cooperate in discovery, and failed to complete a court ordered psychological evaluation. Throughout the litigation Wife kept custody of the parties’ children, who were apparently so alienated from Husband that he relinquished custody out of fear of them living in his home. Wife failed to cooperate in getting the children their court ordered counseling. After one review hearing–at which Wife failed to appear based on a medical excuse–the family court awarded Husband custody. At that point Wife discharged her third attorney. Husband kept the children for one day before returning them to Wife. They were so alienated that he could not control them and was concerned they would fabricate abuse claims against him. During his one night of custody, law enforcement was called to his home and one of the children made an uncredible claim of physical abuse against him.

After Wife failed to attend mediation, Husband had the case scheduled for trial. At the commencement of the trial, a fourth attorney appeared on Wife’s behalf, seeking a continuance by claiming Wife had not received proper notice of the mediation or final hearing. Despite finding Wife received proper notice, the court, out of an abundance of caution, continued the trial. Meanwhile, Husband, through a motion to compel, attempted to preclude Wife from testifying or presenting evidence on numerous issues. At the time of that motion, the only documents Wife had produced were ones she had received from Husband. The court gave her eleven days to answer discovery with the sanction that she would not be allowed to testify on the issues of alimony, child support, equitable apportionment, or attorney’s fees, and she would not be allowed to offer any evidence regarding her income, alimony, or equitable apportionment if she didn’t comply. At the time of that deadline her discovery responses remained deficient.

On the first day of trial, it was revealed that Wife had removed over $200,000 from marital accounts and had opened four separate Navy Federal Credit Union (NFCU) accounts with each of the parties’ four children being on one of the accounts. The court recessed the hearing until the following day and ordered Wife to provide information relative to these accounts and to obtain a verified social security statement indicating how much she received from social security each month. The family court further issued an order restraining Wife from transferring the funds, from dissipating the accounts, or from accessing these funds in any manner pending the issuance of a Final Order.

Between that day and the next morning, Wife drove from the Horry County Courthouse to Charleston, attempted without success to withdraw funds from the NFCU accounts, and drove back to the emergency room at the Grand Strand Regional Medical Center. That morning her attorney advised the court that she had been hospitalized and requested a continuance. That request was denied. The court noted that even if Wife had been present, her ability to testify or present any evidence in regards to any of the contested issues would have been severely limited, based upon her refusal to comply with discovery after several orders to compel had been issued. This was based not only on the order following the June 5, 2016 hearing, but also the court’s warning from the prior day of the final hearing wherein the court was still considering the severity of limitations it would place on Wife’s testimony. The GAL was excused from attendance to locate Wife. After he returned to court, he noted Wife had been in the emergency room at Grand Strand Regional Medical Center and that when he saw her, she was in the process of being discharged. However, she had never actually been admitted to the hospital. The GAL noted that he was able to have a “lucid, normal conversation [with Wife] just like every other conversation I had with her.”

Following trial, the family court issued an order granting a divorce on the grounds of one year’s continuous separation, awarding Wife custody of the children, dividing the marital estate 50/50, denying alimony, and awarding child support in a lump sum in the form of an offset against Husband’s equitable distribution interest. Thereafter, Wife filed a motion to alter or amend. In that motion, and for the first time, she argued that the family court had erred in not appointing her a guardian per Rule 17(c), SCRCP, alleging she was incapacitated, The court issued an order denying Wife’s motion, though it did correct some clerical errors and reference additional evidence presented at trial to support its initial ruling. Wife appealed.

Because Wife first raised the guardian request in a motion to reconsider, the appeal presented issues as to whether that issue was properly preserved. However, Wife argued that the failure to appoint her a guardian was a subject matter jurisdiction issue (which can be raised at any time) and the Court of Appeals decided to address the issue. It found Wife was not so incapacitated as to need a guardian. It noted:

Wife demonstrated unwise and sometimes illogical behavior. However, her conduct was generally directed at prolonging and complicating the divorce proceedings and attempting to maintain marital assets for her own benefit….

Whatever Wife’s issues, they do not appear to have rendered her unable to communicate with her attorneys, the family court, or the children’s GAL or to understand the family court’s instructions. In fact, Wife understood the nature of the proceedings so well that she surreptitiously manipulated the parties’ assets, not to mention the children’s attitudes toward Husband, in a clear attempt to gain an advantage whenever the family court issued an order that preserved the status quo. This included selling fixtures from the marital home, charging legal fees to credit cards in Husband’s name, withdrawing and carefully hiding funds from the marital joint checking account, and secreting funds in the NFCU accounts. Notably, in spite of her lack of cooperation in the divorce case, neither Wife, nor her numerous counsels of record, put forward Wife’s competence as an issue. Based on all of the foregoing, we find the family court did not err in failing to appoint Wife a GAL.

Wife also appealed the limitations the court imposed on her introducing evidence due to her failure to cooperate in discovery or follow discovery orders. Against the family court affirmed:

Numerous discovery violations were delineated in the family court’s order and the record demonstrates Wife’s noncompliance was willful. Wife was forewarned in an order from the June 5, 2017 hearing that this sanction would be issued if she continued refusing to produce discovery or comply with orders of the court by June 16, 2017. In spite of this order, the family court left open the question of the parameters of Wife’s testimony at the conclusion of the first day of the final hearing and instructed Wife to bring her discovery information to court the following day. Wife did not avail herself of the family court’s offer, but instead failed to attend the second day of the hearing….

Unquestionably, Wife was prejudiced by the discovery sanctions. However, Wife was forewarned of the sanctions and continued to disregard the family court’s instructions. Consequently, we are not persuaded the family court erred as to this issue.

Wife appealed the court’s refusal to grant her a continuance. In rejecting this claim, the court noted:

The family court determined Wife’s trip to the hospital was a ruse designed to delay the proceedings and as Wife would not be permitted to present evidence due to the discovery sanctions, the proceedings could continue in her absence. Wife was represented by counsel the second day of trial, and the family court sent the children’s GAL to the hospital to attempt to ascertain Wife’s status and wishes with regard to the custody of the children. The GAL indicated Wife was notably under stress but was capable of communicating clearly and logically with him.

Due to the parties’ inability to get along, the family court granted Husband’s request to pay his child support obligation as a lump sum of $64,640. This represented the total child support amount for each of the parties’ four children for the duration of each child’s minority. The amounts were based upon the child support guidelines as calculated by Husband. Husband also included an additional $10,000 “cost of living” in reaching the final lump sum. The family court granted Husband’s request, taking this sum out of his share of equitable distribution. Inexplicably Wife appealed this–inexplicably because a dollar now is a lot more valuable than a potential future dollar. Explicably, the Court of Appeals reversed: there is no statutory or precedential authority to award child support as a lump sum. On remand, the Court of Appeals allowed the family court to take additional testimony on the present circumstances regarding child support.

Wife appealed the valuation of the marital home. Based on expert testimony, the home was worth $265,000 prior to Wife selling many of the fixtures in the home, damaging it, and otherwise failing to care for it but it was only worth $185,000 in its present condition. In valuing the property, the family court awarded it to Wife at the $265,000 value. Citing Dixon v. Dixon, 334 S.C. 222, 228-35, 512 S.E.2d 539, 542-44 (Ct. App. 1999) for the proposition that a party that deliberately damages marital property during the pendency of litigation should be debited for the reduction in value, the Court of Appeals affirmed this valuation.

Wife appealed the portion of the equitable distribution award that treated none of the $14,843 credit card debt she accumulated post-separation as marital. The Court of Appeals partially reversed. It found that charges totaling $5,350 for legal services were presumably related to the parties’ separation and were therefore not in support of the marriage, household, or children. It excluded those debts from the marital estate. However it found $6,045.25 of the charges were to support the family and household, and therefore should have been treated as marital debt.

Wife appealed the valuation of the joint savings account. Between the date of the parties’ separation and the date of filing, Wife removed funds from this account to support the household. The family court valued and divided this account as the date of separation. The Court of Appeals reversed and held the proper valuation date was the date of filing because Wife used these funds post-separation to support herself and the children. However the Court of Appeals affirmed the family court valuing the joint checking account as of the date of separation. With that account, after the separation, Wife simply withdrew funds in increments below $10,000 (to deliberately evade bank reporting requirements) and could not account for these funds. The Court of Appeals reasoned, “Because she attempted to extinguish the account prefiling, the family court did not err in valuing the checking account at the time of the separation and awarding its value against Wife’s share of the marital estate.”

Wife appealed the family court’s $40,000 valuation for her Honda Odyssey, which was the price Wife purchased it for shortly before the separation. However, since there was no other valuation of the vehicle in the record, the Court of Appeals affirmed that valuation.

Wife appealed the denial of her alimony claim. In affirming that denial, the Court of Appeals noted Wife’s substantial disability income and inheritance, and that she would be receiving child support. The (affirmed) decision to preclude her from presenting evidence also prevented her from establishing alimony factors. Rogers demonstrates that it’s hard to make an alimony case when you can’t present evidence.

Wife also appealed the attorney fee award to Husband. The Court of Appeals remanded the matter holding, “the beneficial results analysis changes slightly in light of some of the modifications in this opinion. Therefore, we remand the award of attorney’s fees for reconsideration based on this factor.”

Wife’s final issue on appeal was the provision making her responsible for the guardian ad litem’s remaining fees. The Court of Appeals affirmed finding:

Wife would be able to pay a portion of the GAL fees without significantly compromising her standard of living based again on her inheritance and disability/social security income. The issues in the case were very contentious, and the record demonstrates much of the GAL’s time and effort was expended due to Wife’s lack of cooperation and efforts to thwart Husband’s relationship with the children.

Rogers presents substantial analysis on when and how a family court should preclude a party from presenting evidence due to failure to cooperate in discovery, when and why to use equitable distribution valuation dates other than the date of filing, and when post-separation/pre-filing debts should be treated as non-marital. It also demonstrates the bad things that can happen to a family court litigant who acts like a human dumpster fire.

One thought on Out of control but not crazy

  1. Shayne Koontz Ingersoll says:

    Wow…just wow…

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