Court of Appeals reverses child support payment finding by rejecting family court’s credibility determination

Posted Wednesday, August 10th, 2022 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Just this May I lectured on how de novo review made appealing family court orders more viable.  In the materials, I noted six post-Lewis reported appeals in which the family court was reversed, at least in part, because the appellate court rejected the family court’s credibility determinations.

The August 10, 2022, Court of Appeals opinion in Register v. Dixon, 437 S.C. 434, 879 S.E.2d 9 (Ct. App 2022), brings that count to seven. This appeal stems from a contempt order in which Register (Father) attempted to enforce child support and attorney fee obligations against Angel Dixon (Mother).  In the contempt petition he sought $2,390 in unpaid child support, $17,500 in unpaid attorney’s fees, plus judgment interest and fees and costs for enforcing the order.

At the contempt hearing, Mother testified as to making four cash payments totaling $2,315 towards child support.  There was no written documentation or receipts confirming this.  Father disputed any cash payments being made. There was no dispute Mother had not made any of the $17,500 in payment towards fees.

The family court found Mother had made $2,315 in child support payments and allowed Mother to pay her remaining balance at $15.00 per month.  It found her in contempt for not paying attorney’s fees and allowed her to pay those at $400 per month.  It awarded Father approximately half his attorney’s fees and costs.  It denied his request for judgment interest.  After his motion for reconsideration was denied, he appealed.

The Court of Appeals reversed the finding that Mother had paid $2,315 in child support.  It found documentary evidence undermined Mother’s claim that she had made these payments. The opinion references an email from Mother to Father’s attorney sent eleven days after she alleged she made the last of her four cash payments that read, “I would like to make a payment arrangement with you for the fees owed. Please let me know how we can start this arrangement. Pertaining to child support, I have attempted to pay Mr. Register but he has made it difficult.” (emphasis added in opinion). That email also indicated she had attempted to pay child support but was unable to locate Register as he had recently moved.

In reversing the family court’s finding that Mother had made cash child support payments, the Court of Appeals noted:

When juxtaposing the details of Angel’s list of alleged cash payments to Register with the contents of her e-mail correspondence with Register’s attorney, there are clear discrepancies. The most compelling of these discrepancies is that both the letter from Register’s attorney and Angel’s electronic correspondence are dated after the alleged inception of Angel’s cash payments to Register. If these payments had been occurring as alleged in Angel’s transaction list, we believe it is likely that Angel would not have stated she “attempted to pay” Register but would have stated that she had paid Register. Further, Angel’s transaction list indicated that she met Register several times at various locations to pay him child support prior to the e-mail she sent to Register’s attorney, but in the e-mail, Angel did not indicate that she had seen or paid Register; rather, she indicated that she had been unable to find Register in order to pay him. These discrepancies cast doubt upon the legitimacy of Angel’s list of alleged cash transactions. In the absence of any supporting evidence of these alleged cash transactions beyond Angel’s own self-serving testimony, and pursuant to our authority to find facts in accordance with our own view of the evidence, we find Angel did not meet her burden of proving by a preponderance of the evidence that she made cash payments for child support to Register. … While this court normally defers to the family court’s assessment of witness credibility, the April 26 e-mail put Angel’s credibility on the witness stand in doubt.

The Court of Appeals noted prior litigation also afforded reasons to doubt Angel’s credibility:

[A]t the time of the hearing, the family court had already taken judicial notice of the January 16, 2018 Final Order, in which there are many adverse findings against Angel that call into question her candor and honesty to the court. Specifically, Angel’s self-serving testimony, coupled with the unfounded and grave accusations against Register, call into question her credibility. Therefore, relying on Angel’s testimony alone, without any corroborating evidence is not sufficient for a finding that payments were made.

In rejecting the family court’s credibility determination, the Court of Appeals held:

The highly fact-intensive nature of family court matters lends itself to a respect for the factual findings of our able and experienced family court judges who are in a superior position to assess the demeanor and credibility of witnesses. Indeed, life-altering credibility determinations often lie at the heart of family court factual findings. However, neither our respect for the family court bench nor the special need for finality in family court litigation may serve as a license to lessen our standard of review in family court appeals.

While we generally defer to the family court in matters of evidence, we cannot do so automatically and blindly. Indeed, we cannot lessen our standard of review by affording unlimited deference to the family court. Accordingly, this court may reverse factual findings made by the family court when the appellant satisfies this court that such findings are against the preponderance of the evidence. (citations omitted).

The Court of Appeals remanded the matter back to family court to determine whether Mother’s failure to pay child support was willful.  Frankly, given that Court of Appeals had just found Mother to have lied about child support payments, it might have simply found Mother’s failure to be willful.  However, because it remanded that determination to the family court, it also remanded Father’s request to have all his attorney’s fees paid, holding “[w]hether additional attorney’s fees are due in this matter will depend on whether the family court finds Angel’s failure to pay child support was voluntary.”

Register is yet another example of the Court of Appeals reversing a family court judge because it doesn’t accept that judge’s credibility determinations. Prior to Lewis this only occurred once.

Also noteworthy in Register: contempt issues are review de novo.  I continue to see appellate attorneys claiming contempt is reviewed on an abuse of discretion standard. That is clearly no longer the case.

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