Lecture material for Why Family Court Attorneys should do Appeals

Posted Friday, May 6th, 2022 by Gregory Forman
Filed under Continuing Legal Education, Miscellaneous, Of Interest to Family Law Attorneys, South Carolina Specific

Below is my lecture for the May 6, 2022, Continuing Legal Education program Why Family Court Attorneys should do Appeals:

To begin I’d like to thank my fellow speakers, Ms. Melissa Butler and Judge Stephanie McDonald who took the time and effort to share their passion for appellate work.  I’d also like to thank those of you in attendance for taking the time to attend this CLE on a beautiful spring afternoon when you could be starting your weekend early.  I hope this CLE imparts some of our passion for appellate work and convinces you of two things.  First, you are more competent at appellate practice than you think.  Second, developing the mindset of an appellate attorney will greatly improve your trial advocacy skills.

Rather than track my materials, which is the typically way I do CLE lectures, I decided to include some personal experiences so you could see how appellate practice shaped my legal career.  My hope is that my enthusiasm for appellate work, which still only represents about 10% of my practice, is infectious.

True story: It’s 1993 and I’m less than two years out of law school and working for George Sink. I am second chair representing an injured wife and her loss-of-consortium husband in a slip-and-fall case.  Wife had tripped in an open drainage hole while walking with her husband on their planation’s golf course.  The judge charges the jury that our clients are licensees.   We contend they are invitees.  The jury finds for the Defendants.  We appeal.

When I left George I took one file with me, Landry v. Hilton Head Plantation Prop. Owner’s Ass’n.  I handled the briefing on my own—under two years in practice when I begin. I handled oral argument on my own—less than three years in practice when I argue. I obtained a published victory.  317 S.C. 200, 452 S.E.2d 619 (Ct.App.1994).  That case established folks who own property in planned residential communities are invitees when using the community’s common areas.

On remand, I’m so inexperienced that I hired Walter Ameika to be first chair at the new trial.  The judge charges we needed to show actual notice of the hazardous condition even though the defendant created that condition.  We lose again.  We would have won if we had appealed again. Cook v. Food Lion, Inc., 328 S.C. 324, 491 S.E.2d 690 (Ct. App. 1997).

Two lessons: 1) judges are frequently wrong; 2) any law school graduate has the necessary skills to handle an appeal.  All the skills one needs for an appeal—reading case law, drafting statements of facts and legal argument, explaining the client’s position orally, answering challenging questions about the legal and factual issues—are things you learned in law school.

Second true story: March-April, 2020.  It’s the COVID pandemic.  One cannot meet with clients.  The courts have shut down.  There’s little work for family court attorneys.  While my family court work is slowing down, I am busy drafting briefs in four appeals.  I stay relatively busy.  Further, the work I am doing on these appeals is teaching me new things about family law that I can use in my practice once courts reopen and one can safely meet with clients.

Lesson: appellate work can be a useful supplement to trial work and can build one’s knowledge base.

All of this was true when I started practicing.  In the past decade two cases have made it even easier to obtain results on appeal. Lewis and Stoney have changed family court appellate practice.

Those two cases changed family court appellate practice in an obvious way by changing the standard of review for substantive issues in family law from “abuse of discretion” to “de novo.” The appellate courts have always corrected family court errors of law a lot this new standard opened possible appeals that might not have been worthwhile previously.

Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011) reads like a dry academic discussion of the standard of review under Article V, § 5 of the South Carolina Constitution. That section of our constitution provides that appellate jurisdiction in cases of equity requires that appellate courts “review the findings of fact as well as the law.”  The Supreme Court took this to mean de novo review was the proper standard for review of substantive issues on appeals from family court.

In a refiled April 2018 opinion in Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486 (2017), the Supreme Court did two things. In footnote two, it noted procedural and evidentiary issues on appeals from family court would continue to be reviewed under an “abuse of discretion” standard.  Second, it remanded the appeal to the Court of Appeals for failing to conduct a de novo review. It did this even though the Court of Appeals, reviewing under an “abuse of discretion” standard, had found the trial process so riddled with error that it ordered a new trial—a remedy I do not recall the appellate courts ordering in the 30 years I have been reading published appellate opinions on family law. I read the Supreme Court’s remand as essentially telling the Court of Appeals, “De novo review: We really mean it.”

Family court judges have a lot of discretion on most of the issues one might appeal.  The custody statute lists seventeen factors, with the 17th being “other factors as the court considers necessary.” The alimony statute lists thirteen factors with the 13th being “such other factors the court considers relevant.” The equitable distribution statute lists fifteen factors, with the 15th being “such other relevant factors as the trial court shall expressly enumerate in its order.” Getting the sense that our legislature imbues family court judges with a lot of discretion?

But under Lewis, “the family court’s factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the family court.” One no longer needs to demonstrate that the family court judge abused discretion in the myriad factors he or she is allowed to consider; now one only needs to demonstrate that the preponderance of the evidence is against the finding of the family court.”  On factual–not legal—issues, it’s the difference between having to prove a judge really erred versus having to prove there’s simply a more just resolution.

Where it gets interesting is on credibility determinations.   Nothing in Lewis or Stoney would appear to indicate the appellate courts would more closely review credibility determinations. Lewis mentions credibility fifteen time.  Lewis states “we recognize the superior position of the family court judge in making credibility determinations.” Yet prior to Lewis only one published opinion reversed a family court’s credibility determinations.  Since Lewis, six published opinions have done so.  Read the unpublished Supreme Court opinion in Conits and see how de novo review and a less deferential standard of review led to a reversal that I do not believe would have taken place prior to Lewis. That reversal netted Mr. Conits $700,000.

Is it mere coincidence that prior to Lewis only one published family court appeal reversed based on erroneous credibility determines but in less than eleven years since Lewis it has happened six times?  A more likely explanation is the appellate courts are treating de novo review as an opportunity to examine all family court factual findings, including credibility findings.

Let’s watch a bit of recent Supreme Court oral argument: Conits v. Conits at 29:40-29:55. This led to the $700,000 reversal I just discussed.

Stone v. Thompson at 17:05-17:30, 24:25-26:20. This led to a common law marriage being reversed.

Appeal flow chart: https://www.sccourts.org/courtReg/Part2AppendixB.pdf

Appeal forms: https://www.sccourts.org/courtReg/Part2AppendixC.cfm

Handling appeals will make you a better trial attorney.  You will learn more family law researching appeal briefs than you are ever likely to learn preparing for trials and temporary hearings.  Learning error preservation rules will teach you evidence (and a bit of procedure).  Thinking about appeals ensures you to develop organizational skills for trial preparation.  You will learn to develop redundancies in your evidence and to seek confirmation of helpful facts from the opposing party and his or her witnesses.

If you appeal you will no longer feel your case results depend on the trial judge you draw.  You won’t necessarily need to settle your alimony case simply because you drew a judge who is generous or stingy on alimony.  If the judge pulls you in chambers before trial and explains your position is weak, you won’t be as intimidated to settle the case cheap (which doesn’t mean you shouldn’t consider the judge may be right). 

Twice in my career I’ve had a judge (actually the same judge) tell me that he didn’t see how I could successfully prove contempt based on the order at issue.  In one case the opposing party was required to pay my client $200,000 “as soon as he is able.”  In the other case my client was entitled to additional time with the child if she “remained in day care” and the issue was whether the child “remained in day care” if she was enrolled in day care but not attending that day.  Both times if we dismissed the rules my client would never get relief.  Both times, I told my client we may likely have to appeal if we lost but if we simply dismissed the rules they would never achieve their goals. Both times we won at trial. 

However, if I wasn’t comfortable doing appeals, we never would have tried those cases.  When trial began, it was likely we would lose—the judge had already made that clear.  Trying a losing case would likely lead to my client being ordered to pay attorney’s fees.  Our likely best hope was trying the case, losing, and obtaining a reversal on appeal.  If I wasn’t comfortable appealing, the only reasonable counsel I could have provided my client would have been to dismiss the rule.  Again, the ability to appeal provide the confidence to actually try the case.

Appeals enable you to change the law in consequential ways.  Just my own appellate practice has resulted in published decisions that confirmed orders do not become valid until filed with the clerk’s office. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006).  One of my appeals established that due process means there cannot be collateral consequences from an emergency domestic abuse hearing. Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008).  One established that full faith and credit is due a foreign judgment even if the non-resident defendant merely files a limited appearance to challenge jurisdiction. Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013).  One established that attorney fee or property division awards from other states’ family courts can only be enforced in circuit court. Katzburg v. Katzburg, 410 S.C. 184, 764 S.E.2d 3 (Ct. App. 2014). One established that the higher income spouse can still obtain alimony. Bojilov v. Bojilov, 425 S.C. 161, 819 S.E.2d 791 (Ct. App. 2018).  These are consequential in ways that mere trials are not.  They have likely done more to shape South Carolina family law than most state legislators.

One of the issues we cross-appealed in Bojilov was the family court only awarding my client 60% of the equity in her transmuted premarital home.  The Court of Appeals increased the amount to 70%.  That gained Ms. Bojilov about $20,000 in equitable distribution but it also benefits every subsequent client with a transmuted premarital home.  I’ve been in numerous mediations in which a mediator might try to convince my client to offer 50% of the equity in a premarital home because it’s been transmuted.  “You can never predict what a family court judge might do”, they will inform my client. This is technically correct.

However, I can retort, Bojilov.  The other side knows I had a client appeal the equitable distribution of her transmuted home because she only received 60% of the equity and I got her 70% of the equity.  The other side knows I might do the same in their case.  Rather than offering 50% because one never knows what a family court judge might do, I take more aggressive positions because I know what an appellate court did for me and my client.  The Bojilov appeal not only benefited that client, it has benefitted any subsequently client with a transmuted marital home. This is a benefit of doing appeals that one rarely considers until one actually starts doing appeals.

Admittedly it is the appellate courts, not the trial attorneys, making this new law. But appellate courts don’t issue advisory opinions. They only issue opinions on disputes folks appeal.  In 2011, I wrote a blog, One Hundred Things I Don’t Know About South Carolina Family Law.  One of the things I listed I now know due to the Katzburg appeal.  There are still 93 things on that list I don’t know. That’s a lot of potential appeals.

I currently have a case I argued (very poorly) last April in the Supreme Court on whether a primary homemaker can be made to pay alimony merely because she has a much higher income than her husband.  Think of all the high achieving professional women who do the majority of the second-shift work and how this result might affect them.  On Wednesday I filed an initial brief on the issue of whether a self-published book critical of the party’s ex-husband violates the non-disparagement clause of the parties’ custody order and whether such non-disparagement clauses violate the First Amendment.  The family courts are increasingly restricting parents’ rights to speak freely on social media.  Appellate attorneys will be at the forefront of the battle to protect the right to free expression.

For those keeping track, that’s my third appeal addressing a constitutional issue.  The burden of proof for DSS abuse and neglect cases are ripe for constitutional challenge.  I actually argued that in the Supreme Court in 2006 but the trial attorney hadn’t preserved that issue.  The method that the family court handles support collection almost certainly violates due process. The United States Supreme Court had specific issues with the way our state handles it. Turner v. Rogers, 131 S.Ct. 2507 (2011).  The required reforms didn’t take place. In the past eleven years two different South Carolina family court appeals have gone all the way to the United States Supreme Court. Those of you who harbored dreams of doing constitutional law in law school have that opportunity if you do family law appeals.

Pet custody is an emerging issue in family law.  The current law on equitable distribution would appear to treat the family pet as no different than an end table.  What is the “fair market value” of a twelve-year-old French Bulldog?  I assume there’s significant depreciation.  However, do we really want to devote the resources we devote to child custody cases to pet custody cases?  Does the idea of a doggie guardian ad litem sound appealing?

Good luck waiting for our legislature to effect the necessary change to properly address pet custody.  That issue will likely get resolved in our appellate courts and it will take intrepid family law attorneys to make the case that the family pet should not be treated like an inanimate object when it comes to equitable distribution.  If you have a passion for animals, be that attorney.

Trial skills build on appellate skills and appellate skills build on trial skills.  Any attorney who handles both will tell you that.  My own trial practice has been greatly enhanced by doing a few appeals each year. Our published victories (and our defeats) are immortalized in ways that mere trial successes are not.

Appellate lawyers still respect family court judges; we simply no longer fear them. It is truly liberating to stop fearing family court judges. Learn to appeal.

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