Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I developed a theory that all such parents fall into one of three categories: 1) the innocent; 2) the repentant; and 3) the goners.

The innocent were those parents who denied abusing or neglecting their child(ren). For them, my goal was to prepare the case for trial in the hope that the Department of Social Services (DSS) would dismiss the case or, if it would not, that I could defeat a finding of abuse or neglect at trial. If the children had been removed from my clients’ custody, this strategy, if successful, would result in the child(ren) being returned at the close of trial. No treatment plan would be necessary. A successful defense on the merits would also end the case–and end it favorably.

The repentant were those parents who acknowledged having some issue that led them to abuse or neglect their child(ren). For these parents the goal was to negotiate a treatment plan designed to fix their issues, shepherd them through that treatment plan, and get the case closed with DSS out of their lives (and their children returned if DSS had removed them).

The goners were those parents who couldn’t care less. Most parents have a strong sense of urgency when their children are removed; these parents didn’t. Often my female goners would be pregnant before my representation ended–I assume their thought process being, “if DSS takes my child(ren), I’ll just have another one.” Although the pay for representing indigent parents was minimal, I enjoyed representing the innocent and the repentant. But I resented having to work for reduced fees for the goners.

However the validity of this classification system only remains through the order from the merits hearing. Merits orders are final orders which must be timely appealed. Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999). In other words, an unappealed merits order is binding on DSS, the parents, and the family court. An unappealed merits order that finds a parent abused or neglected the child is a binding finding against that parent.

Often parents will contact me in the midst of an abuse and neglect proceeding about wanting to “fight [and often sue] DSS.” The first question I ask such parents is, “has there been a merits hearing and, if so, what was the result?” These parents will generally evade answering this question while regaling me with tales of DSS malfeasance. So I will ask again, “has there been a merits hearing and, if so, what was the result?” Evidently, with these parents, an adverse merits finding did not extinguish their desire to fight DSS. Informed of such adverse findings, I advise these parents that the time to fight DSS is over. Now the only productive strategy is cooperation. This advice often leads to raised voices, abrupt hang-ups, or both.

Before a merits finding, an argument for “innocence” remains a viable strategy. After an adverse merits finding, parents are either repentant or goners. Wise parents will head my advice to engage a repentance strategy but, in the small subset of parents who desire to fight DSS after an adverse merits finding, there is not much wisdom.

I’ve been lucky to stay busy during the COVID-19 pandemic and one reason I’ve been able to stay busy is a significant appellate practice. Thus, since mid-March, I have been working on four initial briefs of appellant, two from my own trials and two from other attorneys’ trials. I see three obvious lessens from pouring over trial transcripts and exhibits and talking to these appellants.

Lesson one: Make sure adverse witnesses–especially the opposing party–actually answers your yes/no questions

In the heat of cross-examination, argumentative or self-serving answers to yes/no questions often cause trial attorneys to go on to the next question–especially if the answer to the question helps one’s own client. However that yes/no question still didn’t get answered. When appellate counsel or an appellate judge is later reading the trial transcript, they may be able to infer the answer wouldn’t be favorable to that witness or party. But they will not actually know the answer.

The problem is that the trial judge is observing the evasive witness’ demeanor and is likely drawing helpful (to one’s client) inferences from this evasiveness. However, while a witness’ evasiveness is observable in the courtroom, it is less apparent on the printed page. It may seem pointless to demand an answer to a yes/no question when the evasive response is already helpful. The trial judge already “understands.” Asking for an explicit answer will appear to that judge as belaboring the point.

By the time one has asked the judge the fifth or so time to ask the witness to answer the yes/no question with either a“yes” or a “no,” one will likely be trying that judge’s patience. Thus, no trial attorney is immune to the temptation of moving on after the umpteenth evasive answer. Even reading my own cross-examination transcripts shocks me with the numbers of times I’ve allowed an evasive answer to suffice because of the sheer difficulty in forcing a non-evasive answer from the witness.

Yet, when it’s time to put together a factual argument for appeal, a failure to get an actual answer to these yes/no questions will make that argument more difficult. An evasive answer may establish some useful fact but it won’t establish the useful fact trial counsel asked about. No matter how “obnoxious” trial counsel may appear in demanding an actual answer to his or her yes/no questions, that attorney greatly assists appellate counsel in doing so.

Lesson two: Even if a fact appears uncontroverted, ask it of both parties (or at least of the other’s side’s witnesses)

This lesson builds on the lesson above. In appeals from family court the appellate court is entitled to make its own factual determinations. However, the appellate court will give great deference to the family court’s credibility determinations. Merely because a fact is uncontroverted does not mean the factfinder has to accept it. The appellate court, encountering the uncontroverted testimony of the appellant, may discount it simply because it believes the family court did not find this testimony credible. This is especially true if the family court made explicit factual findings against the appellant’s credibility.

In contrast, when both parties testify to the same fact, it would be shocking if the appellate court did not consider that fact conclusively established. Even if one can only corroborate a fact through the other side’s witnesses, that fact is likely to be considered conclusively established so long as the opposing party does not explicitly dispute it.

Too often, trial attorneys fail to establish important facts through the opposing party’s testimony because their own client has or will testify on that fact. However, failing to get the other side to corroborate this fact is to assume that the court (both the family and appellate) will find one’s client credible. Even for uncontroverted facts, that is never a safe assumption.

Trial counsel can assist appellate counsel by getting the opposing party to corroborate every helpful fact that the other side will corroborate. Often this requires getting “yes” or “no” answers to yes/no questions, which should highlight the importance of lesson one above.

Lesson three: Make sure what you think is part of the trial record is actually part of the trial record

A few years ago I lectured on preparing for family trials and my lecture materials were an outline. Within that outline is a segment, item 4(g), that I suggest doing well over a month before trial: “Begin thinking about testimony outline for client and opposing party.” If it appears I am really into outlines–I am–it is because outlines insure you get the work done properly. Outlining the testimony and facts one hopes to establish through each witness–especially the client and opposing party–insures that all significant and material facts are established at trial. The reason I began preparing this outline weeks before trial, and frequently update and review it with my client, is to minimize the chance that my client and I fail to ask questions or introduce evidence that establishes helpful facts.

In almost every appeal I have ever handled the appellant will want me to make a factual argument that I cannot make because the facts to make it are not in the trial transcript or exhibits. Often these clients will be absolutely certain that evidence or testimony was presented to the trial court. Even after I challenge them to locate these “facts” in the trial transcript and exhibits, and they discover they cannot, they still often insist the facts are there somewhere. It’s a frustrating experience for both of us. And, if it’s a substantial fact that failed to make it into the trial record, the client will perceive his or her trial counsel as failing.

As a favor to all appellate attorneys, trial counsel should do the necessary preparation to insure all important facts become part of the trial record.

As is apparent from these three lessons, trying a case with a potential appeal in mind requires more testimony (and therefore more time) than trying a case when one simply doesn’t consider appeal. But following the lessons above will greatly assist potential appellate counsel in uncovering and establishing the necessary err for a successful appeal.

A request for entry upon land for the purpose of inspection is a discovery option infrequently used by family court attorneys. Part of the reason for this is we often informally allow such inspections. There’s a good reason to require more formality.

Rule 34(a), SCRCP, allows a party to request an inspection “to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon…” In many marital dissolution cases involving equitable distribution, a party might seek inspection of the other party’s residence to inventory and document the marital household items contained therein. Typically, these inspections are done informally–without the necessity of a request for inspection. However, the best practice is to require a formal request for inspection.

I began requiring such formal requests after a few cases in which an opposing counsel sought additional inspections of my client’s residences. While I fought these requests, my belief is that if I demanded, and obtained, a formal request when the initial inspection was sought, I would have a firmer basis to deny the subsequent request. Rule 26(a), SCRCP, authorizes the court to limit discovery when “the discovery sought is unreasonably cumulative or duplicative” or when “the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.” Further, demanding a formal request for inspection impresses upon the opposing party the need to do a full and complete inspection the first time–and not to cause trouble during the inspection. The number of times the opposing party has gotten argumentative with my client in the midst of an inspection drastically decreased once I began demanding formal requests for inspection.

While a party certainly has the right to inspect the opposing party’s residence to inventory marital property, that right is limited and does not provide the party unfettered access to an estranged spouse’s residence. Demanding formal requests for inspection insures better behavior and more thoughtful inspections.

The doctrine of res judicata prevents the relitigation of issues previously decided between the same parties. The doctrine requires three essential elements: (1) the judgment must be final, valid and on the merits; (2) the parties in the subsequent action must be identical to those in the first; and (3) the second action must involve matter properly included in the first action.

Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 437 S.E.2d 130, 131 (Ct.App. 1993).

Due to this doctrine, there can be certain final orders issued prior to a custody or divorce trial that might not merit appealing but for their collateral consequences.

Contempt issues are often litigated prior to custody or divorce trials through rules to show cause. Domestic abuse allegations are often litigated prior to custody or divorce trials through protection from domestic abuse petitions. Contempt orders are always treated as adjudicative. Thus any factual and legal findings in these orders will be binding on the parties in a subsequent custody or divorce trial. While domestic abuse proceedings brought on an emergency basis are not adjudicative [See Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008)], those brought on a non-emergency basis are.

Adverse factual findings in contempt and domestic abuse proceedings can have serious ramifications at a subsequent custody or divorce trial. A finding or lack of finding of domestic abuse is binding on the trial court, not only on a physical cruelty ground for divorce, but also on child custody. S.C. Code § 63-15-240(B)(15) lists as one factor in determining child custody, “whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child.” A finding of contempt is also a listed factor on child custody: “the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders.” S.C. Code § 63-15-240(B)(6).

That contempt and domestic abuse proceedings may have serious collateral consequences for subsequent custody or divorce trials means that some final orders that might not otherwise merit an appeal become worth appealing to avoid or overturn the adverse factual finding(s). In deciding whether to appeal domestic abuse or contempt orders, one should consider the ramifications that the findings in such orders may have in subsequent custody or divorce proceedings.

There’s a never discussed but occasionally employed litigation strategy of using money to purchase time with (or limit an opposing party’s access to) children.

Earlier this month I settled a case in which grandparents used money to keep their own daughter from having enforceable visitation with her daughters. At the time of mediation my clients had custody of their granddaughters, and their own daughter had no visitation. However, had the case gone to trial, there was always some chance their daughter could have regained custody and a significant chance that she would have gained some autonomous visitation. By relinquishing claims for past due (and future) child support and attorney’s fees, and agreeing to pay some funds (including some attorney’s fees) to their daughter, they were able to obtain a more stable and certain resolution. Disregarding their waived claim for ongoing child support, the amount they paid (including the waiver of past due support and fees) was substantially less than my trial retainer would have been. And this “investment” granted them a certainty that trial could not. Purchasing their granddaughters’ time was an excellent strategy/investment.

I typically see this strategy being employed in two distinct situations. One is as described above: when a non-parent uses money to obtain a favorable settlement on third-party custody and visitation. In fact, I can think of few cases in which I have obtained custody for a third-party through settlement in which that third-party has not waived child support from his or her own kin in order to achieve this result.

The second situation is fathers offering a more favorable resolution on child support or attorney’s fees than the case would otherwise merit in order to gain more time with their children (there’s no reason this strategy couldn’t be employed by mothers but, in the world I inhabit, men typically have more money and women typically have more control of the child). A parent trying to get one more day every bi-weekly period or an extra week or two at summer will sometimes find that request only gets serious consideration when sweetened with a little financial incentive. This is one reason I counsel clients who want additional time with their children to forgo a demand for shared custody child support. If the goal is truly more time with their child money is fungible and, if not easily replaced, at least rarely missed, while time with one’s child is a precious commodity.

Obviously, if one side is buying the child’s time, it means the other side is selling the child’s time. If purchasing a child’s time is a strategic consideration motivated by love, the converse isn’t so ennobling. Thankfully, I am at the point of my career in which few of the caregivers I represent are move motivated by money than by love. Perhaps, in a future communist utopia, considerations of financial resources would not intrude on considerations of child custody. Again, that is not the world I inhabit.

Considering when the judicious application of money might avoid a costly and risky trial should be party of every custody attorney’s litigation strategy.

I began trial in a visitation establishment case yesterday. While preparing for trial earlier this week my client (the plaintiff) asked me how I thought the case would end. I informed him it would likely settle halfway into my cross examination of the defendant. I was unduly pessimistic. About 15% of the way into my cross examination, and after the third judge-requested sidebar, we began settlement negotiations that resulted in a resolution better than what my client had proposed five months ago.

What my client attributes to clairvoyance, I attribute to experience. Unfortunately, and all too often, only when a defendant is subject to cross examination will that party and his or her counsel begin to think realistically about settlement. That’s a great reason to employ the strategy of calling the defendant as the first witness in the plaintiff’s case-in-chief.

In this case at hand, 14 months of litigation had left a paper trail of the defendant taking unreasonable and unjustifiable positions–including one contempt ruling with a number of adverse factual findings. The process of confronting her with these positions, and forcing her to explain how they could possibly be in her son’s best interests, left the judge understandably questioning why the case hadn’t settled. That led to a discussion with the judge and opposing counsel on the eight “sticking points” that hindered settlement, which led to the judge observing my client’s positions appeared reasonable (albeit, in a few instances, with some tweaking), which led to the defendant and her attorney softening their positions in a manner that the defendant had been unwilling to consider prior to her cross examination beginning. With the definite certainty of further uncomfortable cross examination, and the looming possibility of an even worse result if she left the decision to the trial judge, we finally put the settlement on the record six hours after the third sidebar.

Often the first time one can get a defendant to think realistically about settlement is after he or she has encountered a couple of cross examination body blows. Yet another reason plaintiffs should call defendants as their first witness.

In 2012 South Carolina passed a statute, S.C. Code § 20-3-170(B), in which one subsection set forth criteria for the family courts to consider when modifying alimony upon a supporting spouse’s retirement. One assumed the goal was to create greater certainty and uniformity for retirement-based alimony reduction/termination cases. However this subsection lists six factors for the family court to consider, with one factor, “any other factors the court sees fit,” essentially creating infinite factors.

In the nine years since the statute was passed, no reported decisions have interpreted this subsection. Thus, in any trial or temporary hearing to reduce/terminate alimony based upon the supporting spouse’s retirement, the parties essentially rely upon a family court judge’s (likely unknowable) interpretation of this subsection. While the expanded scope of appellate review from Lewis and Stoney means that ultimately a family court judge’s interpretation of these factors will be given less deference, this is of no help for temporary hearings, attorneys who don’t handle appeals, or litigants who cannot afford appeals. Even when appealed, adverse trial decisions are likely to remain in place for two or more years while the appeal moves forward.

Combine the broad discretion of the catch-all factor with the lack of interpretation from the appellate courts and the ability of family court attorneys to advise clients on the likely outcome of such cases is little better now than it was before this statute was enacted. Because of this, I haven’t risked taking a retired spouse’s alimony reduction/termination case to a contested hearing in the past decade–preferring to settle every single one without asking a family court judge to weigh in.

My risk aversion to taking such cases to contested hearings is heightened by two common factors in such retirement-based alimony reduction/termination cases. First, even upon retirement, the supporting spouse almost always has greater income. Second, the supporting spouse almost always has greater wealth upon retirement. Both these factors lead me to conclude that alimony might be reduced upon retirement but that it won’t be eliminated.

There are myriad reasons supporting spouses typically have greater income even upon retirement. Unless the supported spouse earned substantial income in the years leading up to retirement, that spouse’s social security benefits will generally be based upon the supporting spouse’s income–and that benefit level will therefore be half that of the supporting spouse’s. If the supporting spouse had a defined benefit pension, that spouse likely accumulated years towards that pension after the divorce and therefore will receive more than half the monthly benefit (as not all the pension will be marital). When the supporting spouse had a defined contribution retirement plan (such as an IRA or 401k), that spouse typically funded the plan to a greater extent after the divorce and thus has a greater income stream from retirement assets upon retirement. Finally, many high income professionals (those most likely to pay alimony) retire in stages: from full-time employment to part-time employment or consulting, to full retirement. Thus, they often continue to have some wage income even when “retired.” All these factors perpetuate an income disparity that survives retirement. In such circumstances, I do not believe alimony would be fully terminated. While the transition from full-time to part-time to no employment allows multiple alimony reduction attempts, few folks wish to engage in multiple litigations in their senior years to address alimony.

In my experience, the supporting spouse also enters retirement with greater wealth. There are two reasons for this. First, even with the alimony obligation, most supporting spouses still have greater income after divorce (frankly, they also typically spend more time on employment after the divorce) and this greater income leaves them a greater ability to generate wealth. Second, the high-income spouse typically has more experience and a greater ability to handle money. I see many alimony modification cases in which the supporting spouse has invested his or her share of the marital estate while the supported spouse dissipated those assets over time.

Unlike a continued substantial disparity in income–which would clearly be a factor in deciding how much to reduce and whether to terminate alimony–a disparity in post-retirement wealth shouldn’t be a consideration. The parties had an “equitable” distribution of their marital assets and debts at the time of their divorce; if one party simply did a better job growing (or not dissipating) those assets that should inure solely to that party’s benefit. However, I fear a family court judge would consider this disparity under the catch-all factor and use it to justify a continuation of alimony or to reduce alimony by a lower amount than would be justified otherwise. It will take some intrepid family law attorney to litigate and appeal this issue to get a definitive answer. As much as I would like to be that attorney, I cannot justify my clients litigating alimony through trial and appeal simply so I can have a “test case.”

In my experience when supporting spouses retire (or even semi-retire) they expect their alimony to terminate. When I review their financial circumstances upon retirement, they almost always have substantially greater income and wealth than their ex-spouse. I have yet to risk trial to terminate their alimony because I never thought such an attempt would succeed.

A retiring supporting spouse with greater income and wealth likely faces a continuing, but reduced, alimony obligation. While a semi-retiring alimony obligor can seek further modification upon full retirement, that subsequent case will likely, for the same reasons, only result in further reduction.

For retiring alimony obligors who want a definite end date on their alimony obligation, the best option is to negotiate a lump sum payment to end alimony. That is the only way I have successfully ended alimony upon retirement. While the prospect of writing a sizable check (in one case it was low six figures) to end an alimony obligation that they had assumed would end upon retirement, is never ideal, for all of my clients it has been a preferred option over paying reduced alimony indefinitely.

At the time of divorce, it is difficult to predict the parties’ financial circumstances at the time of retirement, and further difficult to predict how a family court judge would interpret the retirement alimony factors. Therefore, I advise my alimony paying clients not to expect alimony to terminate upon their retirement. Any supporting spouse who wants a definitive end date on alimony either needs to commit homicide on their spouse (I don’t advise that), suicide (I don’t advise that either), or negotiate lump sum alimony.

There are occasionally cases in which a spouse who would typically pay significant permanent periodic alimony as part of a marital dissolution has destroyed his career around the time of the parties’ separation. Often this career destruction was the cause of the marital dissolution: a spouse charged with a crime that leaves him incarcerated or unable to continue in his career; job misconduct or substance abuse issues that result in employment termination.

When such supporting spouses lose their earning capacity due to “misconduct” during or shortly before marital litigation, the family court is left in an awkward position. If it requires that spouse to pay permanent periodic alimony based upon his recent earning capacity, it is likely setting that spouse up for failure (and jail) as it would be basing support on an unrealistic earning capacity. Further the supported spouse is unlikely to receive the alimony awarded. However, if the family court doesn’t require that spouse to pay alimony, then the supported spouse will incur a substantial reduction in lifestyle due to the supporting spouse’s misconduct. That isn’t just.

The court could attempt to effect a just result by giving the supported spouse a majority of the marital assets. In dividing marital property, South Carolina’s equitable distribution statute, S.C. Code § 20-3-620(B)(2), allows the family court to consider, “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage…” In practice, our appellate courts rarely approve a division in a long-term marriage more extreme than 60/40. See Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (Ct.App.2006) (reducing 70/30 division to 60/40 due to family court’s over reliance on marital misconduct).

However, what if, in this situation, the family court could essentially award the supported spouse all of the marital assets? That would be more just than awarding the supported spouse a mere 60% of the marital estate. Through a creative application of lump sum alimony, the family court could do this. The family court could give the supported spouse 50% (or 60%) of the marital estate and then award that spouse the supporting spouse’s share of the marital estate as lump sum alimony. Lump sum alimony can be awarded in exceptional cases where special circumstances require it. Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107, 114 (Ct.App. 1988). A supporting spouse destroying his earning capacity through misconduct might just be one of those exceptional cases and special circumstances.

Where a supporting spouse’s misconduct has diminished his earning capacity, the family court has three options: 1) issue a permanent periodic alimony award based on the prior earning capacity of the supporting spouse with the understanding that the supporting spouse likely can’t pay it and the supported spouse likely won’t receive it; 2) award the supported spouse a majority–but not a supermajority–of the marital estate and hope she can maintain the marital lifestyle from a majority of the assets; 3) award the supported spouse lump sum alimony from the supporting spouse’s share of the marital assets (essentially leaving the supporting spouse with no assets but no support obligation and the supported spouse with the whole marital estate).

I see few reasons why that third option isn’t the best. Until the appellate courts inform us otherwise, it’s an argument worth making.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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