The June 17, 2020 South Carolina Supreme Court case of In Re Estate of Brown appears to finally resolve the estate of the “Hardest Working Man in Show Business,” a/k/a “The Godfather of Soul,” a/k/a “Soul Brother #1.” To reach that resolution the Supreme Court clarified its holding in Lukich v. Lukich, 379 S.C. 589, 666 S.E.2d 906 (2008), which held that the annulment of a prior voidable marriage did not render valid a subsequent marriage that was entered into prior to that annulment. In this case, Tommie Rae Brown attempted to argue that, because her marriage prior to James Brown was actually void as bigamous, and not merely voidable, when that prior marriage was annulled her marriage to James Brown became valid. The Supreme Court wasn’t buying it.

The Supreme Court held that if Tommie had not obtained a formal annulment prior to the time of her attempted marriage to James, her marriage to James could not be validated by her subsequent annulment of the prior marriage. Citing S.C. Code § 20-1-80, the Supreme Court noted that “the General Assembly has declared all marriages contracted while a party has a living spouse are void, unless one of three specified circumstances is established:

All marriages contracted while either of the parties as a former wife or husband living shall be void. But this section shall not extend [1] to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, [2] not to any person who shall be divorced[,] or [3] [to any person] whose first marriage shall be declared void by the sentence of a competent court.

Emphasis in opinion.

Finding a strong public policy in the accuracy of public records regarding marriage and divorce, the Supreme Court held it was immaterial whether Tommie’s prior marriage was void or voidable at the time she attempted to marry James. Since she did not meet any of the three criteria set forth in S.C. Code § 20-1-80, any attempted marriage to James Brown was invalid. Therefore she was not his surviving spouse.

The Brown case indicates that subsequent marriages undertaken before any of the three criteria of S.C. Code § 20-1-80 are met will not be recognized. Since South Carolina abolished prospective common-law marriages just last year, this code requirement is of even greater significance going forward.

In a May 13, 2020 opinion in Clark v. Clark, a closely divided South Carolina Supreme Court approves both a marketability and lack of control discount to a business in which Husband ultimately owned a 100% interest. While the majority holds that such discounts are to be applied on a “case-by-case basis,” it is hard to believe that this was the appropriate case for a lack of control discount.

The family history described by the Supreme Court is pretty lurid but the basic factual issues on appeal are simple. During the parties’ marriage Husband started working for his family-owned business. At some point he was gifted 75% of the stock from his father. He purchased the remaining 25% of the stock from his sister, which he subsequently gifted to Wife. At the time of this gift, the parties entered an agreement that this 25% interest could only be sold to family members. Thus the parties collectively had sole ownership of the business but only 25% of the business was marital. At trial, in valuing and dividing the 25% interest in the business, the family court applied both a marketability and lack of control discount to that interest and awarded it to Husband–giving him sole control of the business. Wife, unhappy with how these discounts lowered the value of a marital asset that was awarded to Husband, appealed these, and numerous other issues, to the Court of Appeals. The Court of Appeals affirmed the lack of control discount but reversed the marketability discount. Both parties sought certiorari, which the Supreme Court granted as to the application of these two discounts.

In a 3-2 decision the Supreme Court held such discounts should be applied on a “case-by-case basis” but applied both discounts to this case. A marketability discount is often applied to small businesses due to the difficulties in finding a willing buyer. In Clark there was an additional marketability issue created by the agreement that Wife’s 25% interest could only be sold to family members. At trial both parties’ experts testified that a marketability discount should apply, with Wife’s expert backpedaling when her attorney asked whether such a discount should apply if no sale was contemplated. The majority found these facts sufficient to apply the marketability discount. The dissent would have rejected this discount because no sale was contemplated. It further noted (I believe correctly) that “even if some marketability discount is appropriate, the stock transfer restrictions should not be a factor. Once Wife’s shares are transferred to Husband, there will be no motivation for Husband to keep the restrictions in place; therefore, the financial relevance of these transfer restrictions is illusory.”

The majority further approved the lack of control discount. Although Husband would own 100% of the business upon the parties’ divorce, the majority held the proper method of valuing the 25% interest was to value it separately–rather than valuing the whole company and dividing that figure by four. The dissent, noting prior case law that “a minority discount should not be allowed when the aggregate of the family holdings creates a majority interest in the corporation,” argued “that courts should not apply minority discounts at the expense of uncontroverted facts.” Given Husband’s 100% ownership of this company, I believe the dissent has the better argument.

An insane amount of litigation occurred to value a 25% interest in a company worth $736,000 (the valuation Husband’s expert placed on the company, which was adopted by the family court, and not challenged in the Supreme Court). The Supreme Court valued this 25% marital interest at $86,226. Absent application of these discounts the valuation would have been $97,774 higher and Wife’s equitable distribution award (assuming a 50/50 division of the marital estate–both the Court of Appeals and Supreme Court opinions are silent on the percentage division of the marital estate) $48,887 greater.

Yet, one understands why Wife fought these issues. There is no lack of control for someone who own 100% of a business. Further, even if the marketability discount was appropriate it should not have included the discount for a stock transfer limitation agreement that Husband could unilaterally extinguish. Since Clark holds such discounts should be applied on a case-by-case basis, the import of this (I believe incorrectly decided) opinion is limited. Still I believe the dissent’s analysis was the correct analysis.

The May 13, 2020, Supreme Court opinion in Landry v. Landry addresses the proper procedure to correct a potential scrivener’s error in a court-approved equitable distribution agreement, In Landry, on the morning of their contested divorce trial, the parties reached an agreement resolving all issues but the divorce (which, under South Carolina law, cannot be resolved by agreement). That agreement was handwritten and signed by the parties. At the final hearing, this handwritten agreement was submitted to the court for approval. Husband’s attorney later drafted the formal order to approve the agreement. In drafting the order, Husband’s attorney attempted to incorporate the handwritten agreement by typing its terms into the final order. After the draft order was approved by Wife’s attorney, it was submitted to the court, signed by the judge, and filed.

Nine weeks later Husband noticed the order required him to pay Wife one-half of his military retirement benefits. This was much broader than the language in paragraph six of the handwritten agreement, which only required that “½ of military retirement for December 2016 shall be paid by husband to wife once the TSP is divided by QDRO. The amount is $2,923.00.” Believing the provision requiring him to pay Wife one-half of his military retirement benefits to be a mistake–albeit one made by his own attorney in drafting the order–Husband moved for relief under Rule 60(a), SCRCP, based upon a clerical mistake “arising from oversight or omission.”

The family court denied this motion, finding it was untimely because Husband should have sought relief within ten days of the order pursuant to Rule 59(e), SCRCP. The family court further found the parties had agreed that one-half of Husband’s military retirement benefits would be paid to Wife. Husband appealed to the Court of Appeals which affirmed the family court in an unpublished opinion. Husband petitioned for a writ of certiorari, which the Supreme Court granted.

The Supreme Court reversed the Court of Appeals. It found that Rule 60(a) was a proper method for Husband to seek relief from an order he believes was erroneously drafted. Noting the general rule that final orders of equitable distribution are not subject to modification, the Supreme Court cited prior case law finding an exception when such modification was “to correct clerical errors.”

Determining that the motion was properly brought pursuant to Rule 60(a), the Supreme Court next addressed the merits of Husband’s motion. While in both in its ruling from the bench and its findings in the written order, the family court indicated Husband agreed to pay one-half of his military retirement benefits to Wife, the Supreme Court noted no evidence in the record actually supported this finding. It held that absent a hearing with testimony from the parties to determine whether they agreed to the provision at issue, it could not infer findings of fact which do not appear in the record. It explained:

Although parties are typically bound by the terms set forth in their agreement, we believe the agreement at issue is ambiguous such that parol evidence of the parties’ intent must be considered to determine what the parties agreed to with respect to this fairly substantial marital asset. …

The procedure utilized by the parties and the court in approving the handwritten agreement reached immediately before the hearing has hampered our ability to resolve this case. Normally, we are not inclined to provide litigants with another “bite at the apple” in presenting their case. Moreover, a party whose conduct induces error is generally not in a position to complain on appeal. However, without any testimony as to what the parties intended in paragraph 6 of the handwritten agreement, even our de novo standard of review does not enable us to find the parties agreed to share Husband’s military retirement benefits.

Because the parties’ agreement in this case was ambiguous, the family court was required to determine the parties’ intent and resolve the ambiguities as part of its obligation to review whether the agreement was fair and reasonable. Based on the record presented to us, neither at the initial hearing approving the parties’ agreement nor the subsequent hearing on Husband’s Rule 60(a) motion was any evidence received by the family court as to what the parties intended by paragraph 6 in the handwritten agreement regarding Husband’s military retirement benefits. Therefore, we cannot discern from the record before us any evidence supporting the family court’s finding that the final order incorporated the parties’ intent with respect to this significant marital asset. Accordingly, we remand to the family court to make this determination.

Citations omitted.

The Supreme Court uses Landry as an:

opportunity to remind the bench and the bar of the proper procedure for approving family court agreements….

When parties choose to resolve their disputes through settlement rather than participate in a contested hearing, the better practice is for counsel to reduce the agreement to writing in a formal, typed document duly initialed and signed by the parties. Indeed, this Court has noted that “out of court agreements should be reduced to writing and submitted to the court for approval.” At the approval hearing, the agreement or a copy of it should be marked as an exhibit, and the parties should be examined under oath concerning their understanding of the agreement, its voluntary nature, their satisfaction with counsel, and whether there has been a full disclosure of all marital assets and debts. Thereafter, counsel should request the court admit the agreement into evidence.

While having a formal, typed document introduced into evidence and ultimately attached to the family court’s final order is preferred, we recognize that sometimes, as here, an agreement is reached immediately before a scheduled contested hearing and is not reduced to a formal typed document. In that case, the terms of the agreement should be carefully stated upon the record, and thereafter, the parties should be thoroughly questioned under oath concerning their understanding of the terms of the agreement, the voluntariness with which the agreement was entered, their satisfaction with counsel, and whether there has been a full financial disclosure. Moreover, because family courts are courts of equity, their primary focus is whether the parties’ agreement is fair and reasonable. Naturally, this inquiry begins with determining whether the agreement was voluntarily given. In deciding whether an agreement is fair, it is not the court’s task to decide the parties’ rights but rather to determine whether the agreement is within the bounds of reasonableness from both a procedural and substantive perspective. In the context of property settlement, the court is required to consider the parties’ financial declarations. The family court’s obligation to review the fairness of an agreement includes a duty to examine plain, unambiguous agreements. Ambiguous agreements, however, require the family court to determine the intent of the parties before making a ruling as to fairness and to consider several factors as enumerated in our family court jurisprudence.

Citations omitted.

Basically, this is the Supreme Court’s way of encouraging family law attorneys to reduce agreements to a formal, typed, writing prior to the hearing to approve them. It is also a reminder to family court judges to review such agreements for ambiguities at the hearing to approve them, and to resolve such ambiguities by questioning the parties as to their intent at those hearings. Practically every family court agreement I have encountered (or written) is rife with ambiguity. Most of the time, these ambiguities never become an issue. Much of the time, the parties are able to resolve the ambiguity themselves. Some of the time, they need their attorneys to later help them resolve it. And, rarely, it requires supplemental proceedings to resolve the ambiguity. Often the ambiguity isn’t even recognized until a party defending a contempt proceeding points it out.

Expecting family court attorneys to draft a completely unambiguous agreement is ambitious. In my experience, many attempts to resolve ambiguities through additional verbiage simply creates more ambiguities. Expecting family court judges to spot the myriad ambiguities contained in each family court agreement in the context of a fifteen minute hearing is to expect more from these judges than I am willing to do.

Last week I blogged about how the Supreme Court’s decisions in Lewis and Stoney–mandating a de novo standard of appellate review of family court factual findings–was making it more worthwhile to appeal family court orders. I noted last month’s oral argument in Conits v. Conits as an example of how this less deferential standard of review was affecting family court appeals.

After an initial reported South Carolina Supreme Court opinion in Conits held that Husband had preserved the issue of the valuation of his farm in Greece, on November 20, 2019, the South Carolina Supreme Court reversed a family court finding (subsequently affirmed by the Court of Appeals) that the farm was 30 acres with Husband’s half interest valued at $1,420,000.00. If further found that “Husband’s testimony was the only competent evidence of the farm’s size and value in this record.”

In reaching this conclusion, the Supreme Court noted that the Court of Appeals had relied upon cases prior to Lewis in affirming the family court and had thus applied the improper standard of review. Thus, despite the family court’s numerous factual findings that Husband was not credible, his valuation of this Greek farm prevails, reducing the amount he has to pay Wife to effectuate equitable distribution by approximately $700,000.

The Conits opinion is yet another piece of evidence that the ability to appeal family court orders is becoming a vital skill set for South Carolina family court attorneys.

In the November 6, 2019, case of Cooper v. SCDSS, 428 S.C. 402, 835 S.E.2d 516 (2019), the South Carolina Supreme Court found that the family court had improperly denied Foster Parents’ requests to intervene in DSS removal actions.

The two sets of Foster Parents at issue had placement of Mother and Father’s three children (at the time of trial one set of Foster Parents had the two older children; during the appeal, all three children were placed with the second set of Foster Parents). DSS sought to remove the children from Foster Parents’ care and place them with Mother’s aunt. Foster Parents filed termination of parental rights (TPR) and adoption actions, and subsequently sought to intervene in the removal actions and sought to consolidate the removal and TPR/adoptions actions.

By the time the Foster Parents’ intervention and consolidation requests were heard by the family court, DSS changed its position on removal and sought reunification with Mother. It argued that intervention, consolidation, and granting discovery rights to Foster Parents would unnecessarily complicate the case. DSS argued Foster Parents’ intervention rights were strictly permissive and not mandatory. DSS also argued the volunteer GAL could protect the Children’s interest and that Foster Parents had a right to attend the permanency planning hearing and to proceed with their private TPR and adoption actions. The Volunteer GAL supported intervention but expressed concern about allowing consolidation because different statutes govern the role of a volunteer GAL in a DSS action and the role of a GAL in a private action, and the GAL stated a volunteer GAL should not “be expected to serve in protracted litigation involving contests primarily between private parties.”

Without making any factual findings, the family court denied Foster Parents’ motions to intervene and consolidate. After the family court denied their motions for reconsideration both Foster Parents appealed. The Court of Appeals consolidated their appeals and requested the Supreme Court certify the appeals for direct review. The Supreme Court granted that request. Before oral argument DSS withdrew its opposition to Foster Parents’ requests and joined their requests for relief.

The Supreme Court’s opinion first addressed the family court’s deficient factual finding on Foster Parents’ motions:

We stress that the family court must set forth pertinent findings of fact and conclusions of law when ruling upon motions to intervene and to consolidate, especially when the best interests of children are at stake. The unique facts of each case make it all the more important for the family court to fully set forth its findings when ruling on such motions.

However the Supreme Court did not wish this insufficient fact finding delay resolution of Foster Parents’ motions:

The absence of any factual findings to support the family court’s denial of Foster Parents’ motions makes our review of the family court’s decision difficult. In many instances, a remand to the family court would be appropriate; however, to avoid further delay in establishing permanency for the Children, we have examined the record and will address the merits of each motion.

The opinion next addressed whether Foster Parents’ invention request were as of right or permissive. Interpreting Rule 24, SCRCP, the Supreme Court held their intervention requests were permissive:

Section 63-7-1700(J) provides that a foster parent is a “party in interest” in a DSS removal action. Section 63-7-1700(J) further provides that a “party in interest may move to intervene in the case pursuant to the rules of civil procedure and if the motion is granted, may move for review.” (emphasis added). By using the word “if” in the emphasized portion of the statute, the General Assembly recognized a foster parent’s right to intervene in a removal action is not absolute.

A family court should therefore apply Rule 24(b)(2) when analyzing whether or not to grant a foster parent’s motion to intervene. See Rule 24(b)(2), SCRCP (permitting intervention upon timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common” and upon consideration of “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties”).

Given the facts of this case–the Foster Parents has long and enduring relationship with the children in there are and these children were closely bonded to them–the Supreme Court held the family court erred in not allowing intervention:

First, there is no dispute that Foster Parents timely moved to intervene, as required under Rule 24(b)(2). Further, while foster parent intervention will not be appropriate in every removal action, here, Foster Parents have demonstrated their private TPR and adoption actions and the DSS removal actions have questions of law and fact in common. The best interests of the Children are certainly a consideration the private actions and the DSS actions have in common, especially when considering the length of time the Children have been with Foster Parents. Expert testimony indicates the Children are bonded with Foster Parents and that alternative placement would be severely detrimental to the Children.

Under these circumstances, intervention will allow the family court to receive input from Foster Parents that will aid the family court in reaching a timely decision on the merits of both removal actions. We further conclude intervention will not unduly delay or prejudice the adjudication of the rights of the parties to these actions.

We therefore hold the family court erred in denying the motions to intervene. We stress that our decision in this case should not be interpreted as a signal to the family court bench and bar that intervention should be granted to foster parents in every case. The decision to grant intervention remains in the discretion of the family court following its analysis of the facts and procedural posture of each case.

The Supreme Court next decided to remand the Foster Parents’ requests for consolidation of the removal actions with their TPR and adoption actions back to the family court. It cited Rule 42(a), SCRCP regarding consolidation:

Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the action; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

In deciding to remand the consolidation issue, the Supreme Court noted the Children’s GAL raised legitimate concerns regarding the consolidation of Foster Parents’ private actions with the DSS removal actions. It further held that “DSS’s consent [to consolidation] and its reasons for such consent would certainly be factors the family court should consider.”

Finally the Supreme Court rejected Foster Parents’ argument that DSS should have been joined in the removal action as moot as the court had granted their motions to intervene. It found one Foster Parents’ argument that the family court should have joined DSS as a party to their TPR and adoption case to be without merit as they had already named DSS as a defendant in that case.

Two takeaways from Cooper. First, family court judges who make procedural decisions regarding children’s rights must make detailed factual findings justifying those decisions. Second, Foster Parents who have a substantial relationship with the children they foster should likely be allowed to intervene in proceedings involving those children’s placement.

The October 30, 2019, South Carolina Supreme Court opinion in Bazen v. Bazen would be interesting if it merely tested the constitutionality of South Carolina’s most recent version of its grandparent visitation statute–more on that later. However, this case, which featured a mother who mouthed the proper pieties about encouraging a relationship between her children and the parents of their deceased father while finding creative ways to avoid having these paternal grandparents actually spend time with those children, reveals the Supreme Court’s dim view of parents who would lie to the family court. To wit:

We are mindful that families often do not get along, even under the best of circumstances. In the course of such struggles, family members are not always honest with each other. Ordinarily, deceptive behavior within families is beyond the power of the court to address. Deceptive behavior must end, however, when family members bring their disputes into the court system. Tammie’s repeated representations to the family court—and in turn to this Court—that she welcomes visitation, when in fact she refuses it, is unacceptable.

We agree with the family court that Tammie “has unreasonably denied the grandparents opportunity to visit with the minor children by failing to allow communications through the house phone or her cell phone.” We find her intentional, deceptive, and now contemptuous behavior—designed to appear accommodating and cooperative while calculated to prevent the visitation she claims to accept—is an intentional effort to keep the court from fulfilling its responsibility under subsection 63-3-530(A)(33) and the Due Process Clause.

Our concern over Tammie’s behavior goes beyond the fact she intentionally deceived the court. Her behavior has directly and adversely affected the welfare of the children. She damaged the children’s previously positive and loving relationship with their grandparents. More significantly, Tammie’s deliberate attempt to remove the family court from its proper role as arbiter of this dispute, combined with her own refusal to communicate with the grandparents, put the children in the unwelcome role of peacemakers between their grandparents and their mother. This has been particularly true with the eldest daughter. In one instance, for example, she sent a text message to her grandfather essentially asking him not to push visitation because she was afraid it would upset her mother. She texted, “Please stop. . . .You’re breaking a part of — a part of my family. I love you, but you’re hurting my mom so much, and she needs — means everything to me.” As the family court found in the September 2018 contempt order, Tammie’s refusal to comply with the November 2017 order “is exacerbating the situation.”

Tammie’s use of deception to keep the family court from fulfilling its duty to manage this dispute, and her continued refusal to comply with the November 2017 order, places her daughters in the completely inappropriate role of mediating the dispute between her grandparents and her mother. No child should ever be placed in such a position.

We find Tammie’s intentional, deceptive, and contemptuous behavior—that not only cut off the relationship between the grandparents and the children, but also made them proxies for communication between Tammie and the grandparents—is a compelling circumstance that justifies the State to intervene, and to order that Tammie permit the grandparents to have visitation with the children.

A large part of any family law attorney’s practice is, unfortunately, talking parents out of behaviors that undermine the relationships between their children and other loving family members, and developing and highlighting evidence that the opposing party is engaging in such behaviors. This behavior has certainly gotten the attention of our Supreme Court–hence Tammie’s smackdown–and one would expect the family court judges to take notice. Deceptive behavior in family court cases should no longer be tolerated. Now on to the actual analysis of the legal issues.

Bazen involved a constitutional challenge to the latest version South Carolina’s grandparent visitation statute, S.C. Code § 63-3-530(A)(33). Initially Mother and Paternal Grandparents (Grandparents) had a cooperative relationship–Mother even bringing the children to visit Grandparents at times when she and the father were estranged. Eventually however Mother also became estranged from Grandparents. When their son died she tried to limit their contact, going so far as to tell telling the children on Grandparents’ presence shortly after their son’s funeral, “Y’all won’t see Pawpaw [Laverne] any more.” One day Grandparents showed up a Mother’s house unannounced and she admonished them for doing so and told them, “you need to call before you come.” When they would attempt to call she would not answer. Eventually Grandparents filed for visitation.

At trial the family court awarded Grandparents visitation, including some overnight weekend visitation and one week during the summer. Mother appealed and raised a constitutional challenge to the grandparent visitation statute in her appeal. In addressing the constitutional challenge the Supreme Court analyzed the three factors the United States Supreme Court laid out regarding grandparent visitation statues in its Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56-57 (2000), decision: (1) there must exist a presumption that a fit parent will act in the best interest of his or her child, (2) the decision of a fit parent concerning grandparent visitation is entitled deference, and (3) the impact to the parent-child relationship should be considered.

It found South Carolina’s grandparent visitation statute met those criteria. First, subsection 63-3-530(A)(33)(2)(b) specifically recognizes a “presumption that the parental decision is in the child’s best interest.” Second, the Supreme Court noted that it had repeatedly interpreted subsection 63-3-530(A)(33) to require that the decision of the parent—protected by Due Process—be given substantial deference. Third, subsection 63-3-530(A)(33)(2) specifically requires the family court to find “grandparent visitation would not interfere with the parent-child relationship.”

Finally it rejected Mother’s argument that the requirement of “compelling circumstances” to authorize grandparent visitation was unconstitutionally undefined. It found Father’s death satisfied the first element of the grandparent visitation statute, “at least one parent must be deceased, or the parents must be divorced or ‘living separate and apart in different habitats.’” § 63-3-530(A)(33). It found Mother’s behavior satisfied the second element, “the parent has unreasonably deprived the grandparent of the opportunity to visit with the child for more than ninety days.” § 63-3-530(A)(33)(1):

Tammie has consistently refused to permit the grandparents to visit with the children. Laverne and Pansy both testified they attempted to call and visit on numerous occasions. Tammie conceded this in her testimony. However, Tammie repeatedly refused to accept or return their calls when they tried to schedule a visit. On several occasions, they called and asked one of the children to check with Tammie for permission to visit, but Tammie never responded. Even at trial Tammie resisted allowing visitation. When asked whether she would be willing to provide the grandparents with a calendar of school and extracurricular functions so the grandparents could attend, Tammie repeatedly stated they could find that information on “the website.”

The Supreme Court further found this depravation was unreasonable. While acknowledging that the burden of proving unreasonableness falls to grandparents, it noted Mother acknowledged the children loved their Grandparents, that she often needed care providers for the children that the Grandparents could satisfy, and that there was no legitimate reason to deprive the Grandparents of contact. An important part of this Supreme Court ruling is that, “[a]nimosity against the grandparents is not a valid reason to deny them visitation.”

In analyzing the third element of the statute, “the grandparent visitation will not interfere with the parent’s relationship with the child,” § 63-3-530(A)(33)(2), the Supreme Court noted:

[T]here is no evidence anywhere in this record that grandparent visitation will interfere with Tammie’s relationship with her children. Nor has Tammie argued that it might. In fact, the only indication in this record is that a healthy relationship between the children and their paternal grandparents will be good for the children and will not interfere with Tammie’s relationship with her children.

In analyzing the final element, “the family court finds by clear and convincing evidence that the parents are unfit, or ‘there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest,’” § 63-3-530(A)(33)(2)(a), (b), the Supreme Court noted that Mother was fit and thus Grandparents needed to show compelling circumstances. It held their son’s death was evidence of compelling circumstances but insufficient, by itself, to establish compelling circumstances. It further held that, “a family court may not overrule a fit parent’s decision and impose grandparent visitation based on its own view of the child’s best interests, or its own conception of what is a compelling circumstance.” It found the family court erred in doing so. However it found compelling circumstances based on Mother’s duplicitous behavior, quoted at length at the beginning of this blog, which unreasonably deprived her children and the Grandparents of the ability to develop a relationship and placed her children in an middle of the dispute.

Despite rejecting Mother’s constitutional challenges to the grandparent visitation statute, the Supreme Court still held that the family court awarded Grandparents too much visitation. It held:

[G]randparent visitation is not the same situation as when the court awards reasonable visitation to a noncustodial parent. Family courts do not defer to the preferences of a custodial parent in deciding visitation for a noncustodial parent. For grandparent visitation, however, courts must give deference to the judgment of the parent. Just as a court must defer to a parent’s decision on the fact of grandparent visitation, a court must also defer to reasonable limitations or conditions a fit parent chooses to impose on grandparent visitation.

The Supreme Court noted that the Grandparents had only had two overnight visitations without a parent being present and they had never had a parent-like relationship with the grandchildren. It noted Mother’s concern that the children’s active extracurricular schedule would be impacted by overnight visitation with grandparents who did not live near them. It therefore overruled the family court’s award of overnight visitation (the family court had awarded Grandparents eight weekends, a three-day period at Christmas, and one week at summer). However it noted that if Mother did not encourage and ultimately allow some overnight visitation the Grandparents could petition the family court for more visitation. Justice Kittridge, in partial dissent, would have authorized overnight visitation immediately.

I was an early critic of South Carolina’s first grandparent visitation statute, believing it to be overly broad. I believed the second version was unduly narrow, and it’s latest version struck a proper balance between a fit parent’s right to determine who their children have relationships with and the state’s interest in allowing children to have relationships with their grandparent when their parents are no longer together. The Bazen decision affirms the constitutionality of this latest version. In doing so, it establishes a few important points for future grandparent visitation cases (and, on the first point, all custody cases):

1) Duplicitous behavior by parents in custody disputes is not to be tolerated.
2) Death of a parent, while a factor in the “compelling circumstances” requirement for grandparent visitation is not sufficient by itself to create compelling circumstances.
3) Grandparents have the burden of proving an unreasonable depravation of visitation.
4) A parent’s animosity is not a reasonable basis to deny grandparents visitation.
5) The family court cannot merely override a fit parent’s decision and substitute its own judgment on a child’s best interests and “compelling circumstances.”
6) Unlike visitation for a parent, the family court must defer to and consider a fit parent’s views in awarding grandparent visitation.

A decade ago, in a blog titled, “Why won’t South Carolina end common-law marriage?,” I expressed my strong dislike of the doctrine by noting, “cases resolving the issue of whether a couple was married at common-law do not become a ‘quest for the truth’ but instead devolve into determining who is the less convincing liar,” before concluding:

Given that marriage is one of the most significant and solemn things most of us will contract in our life, shouldn’t the law require that we not enter this contract inadvertently or accidently? Common-law marriage was made for hillbillies, and the folks who claim to contract it in the twenty-first century tend to live the chaotic lives of hillbillies, even if they live in suburban homes and have decent incomes… We shouldn’t encourage such chaos or allow so much perjury to be suborned. … If people want to be married, they should get that damn piece of paper: South Carolina needs to abolish the archaic practice of common-law marriage.

Evidently, the members of the South Carolina Supreme Court share my distaste of common-law marriage. From watching the oral argument in Stone v. Thompson, it was clear that the Supreme Court would create standards that would engender greater uniformity in establishing a common-law marriage. It was less clear whether the Supreme Court would abolish it outright. The July 24, 2019 opinion in Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019), does both: holding that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion,” while holding that to judicially establish common-law marriages contracted prior to July 25, 2019, the party seeking to establish such a marriage will need to do so by clear and convincing evidence.

In abolishing common-law marriages prospectively, the Supreme Court looked to the reasoning of a Pennsylvania case, PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct. 2003):

The circumstances creating a need for the doctrine are not present in today’s society. A woman without dependent children is no longer thought to pose a danger of burdening the state with her support and maintenance simply because she is single, and the right of a single parent to obtain child support is no longer dependent upon his or her marital status. Similarly, the marital status of parents no longer determines the inheritance rights of their children. Access to both civil and religious authorities for a ceremonial marriage is readily available in even the most rural areas of the Commonwealth. The cost is minimal, and the process simple and relatively expedient.

Expanding on that reasoning, the Supreme Court noted:

The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders. By and large, society no longer conditions acceptance upon marital status or legitimacy of children. The current case is emblematic of this shift, as the parties’ community of friends was wholly unconcerned with their marital status, and indeed several of their witnesses were in similar relationships. Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is thereby reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.

Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups. The right to marry is a fundamental constitutional right, which leads us to believe the right to remain unmarried is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly. Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most. The present case is again illustrative. None of the multiple witnesses who were asked understood what was required to constitute a common-law marriage, despite the fact that, as mentioned, several were involved in lengthy cohabitating relationships themselves. Moreover, two of such partners testified in complete opposition to one another, with one reporting they were common-law married, and the other stating emphatically they were not. This further persuades us to reject a mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers.

Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union. We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements. Our quest to see inside the minds of litigants asserting different motivations and levels of knowledge at varying times must yield to the most reliable measurement of marital intent: a valid marriage certificate.

Citations omitted.

Having abolished common-law marriage, prospectively, the Supreme Court next addressed what to do with folks who already believed they were married at common-law. The court “decline[d] to exercise our prerogative to apply our ruling today retroactively. We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine.”

However, the Supreme Court imposed a higher burden of proof for those wishing to establish common-law marriage:

Consistent with our observations regarding the institution’s validity in modern times, we believe we must update the standards courts are to apply in future common-law marriage litigation. A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other’s intent. Some factors to which courts have looked to discern the parties’ intent include tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts.

Appellate courts have previously recognized two lines of cases regarding common-law marriage. The first holds that a party proves a common-law marriage by a preponderance of the evidence. The second relies on a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time. This presumption—like common-law marriage itself—is based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. It can only be overcome by strong, cogent, satisfactory or conclusive evidence showing the parties are not married. This Court has held that once a common-law marriage becomes complete, no act or disavowal can invalidate it.

Thompson argues the rebuttable presumption of common-law marriage is based on outdated assumptions about cohabitation. Given our foregoing assessment of common-law marriage, it will come as no surprise that we agree. The concerns regarding immorality, illegitimacy, and bastardy are no longer stigmatized by society, and as a result, they can no longer serve as the basis for assuming individuals are married.

Additionally, consistent with our preceding discussion regarding the sanctity of a marital relationship and our reticence to impose one on those who did not fully intend it, we believe a heightened burden of proof is warranted. Therefore, we hold the clear and convincing evidence standard utilized in probate matters should also apply to living litigants. This is an intermediate standard—more than a preponderance, but less than beyond a reasonable doubt—and requires a party to show a degree of proof sufficient to produce a firm belief in the allegations sought to be established.

Citations omitted.

Given some folks’ reliance on the common-law marriage doctrine, it makes sense for the ban on recognizing common-law marriage to only apply prospectively. However, given the inconsistencies of evidence in practically every contested common-law marriage case, and given a strong public policy that folks should understand their own marriage status, this increased burden of proof was long overdue.

Finally, Stone reversed the family court and found no common-law marriage between these particular litigants. The evidence reflected that the parties began dating in the early 1980’s, had their first child together in 1987, and began cohabiting in 1989. Between 1989 and 2004 there was no evidence of Thompson holding herself out as married. In the 2005-08 time period, Thompson was inconsistent on her marital status. Thompson blithely noted that she sometimes held herself out as married during this time period “because banks were more closely scrutinizing mortgage loans.” This led the Supreme Court to cite in a footnote language from the Pennsylvania PNC Bank case:

[C]ouples may swear in applying for benefits that they are man and wife, but file tax returns averring under penalty of perjury that they are single. One attorney in oral argument, when asked how he could explain affidavits to the IRS inconsistent with the testimony of his client in the litigation then before the court, replied matter-of-factly that he assumed it lowered their tax liability. What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself.

In finding the parties were not married, the Supreme Court concluded, “While we in no way condone false statements in pursuit of a financial benefit, we do not believe these documents evidence the necessary intent to prove the parties were common-law married.”

Common-law marriage was clearly a doctrine that has outlived its usefulness. While the courts viewed it as a different method of proving marriage, the culture considered it a different type of marriage–and this disconnect between law and culture was creating constant uncertainly and injustice. For family law attorneys who examined the practice of common-law marriage as part of litigation, it was obvious that common-law marriage was rarely an actual marriage as married folks actually understand it.

Consider your own marriage–if you are married. There are easily ten moments each day in which your marriage is publically noted. Every time you wear a wedding ring and every time you refer to your partner as your spouse, or your husband/wife, you are making a public record of your marriage. Imagine what would happen if 1% of the time you indicated you were not actually married: you didn’t wear a wedding ring out in public; you referred to or introduced your spouse as your friend/girlfriend/boyfriend to folks who know both of you; you filed tax returns as single or head of household and told your spouse to do likewise. Imagine your spouse’s reaction when he or she discovered you were doing this. Not pretty. That’s because you are married. Yet folks who were married at common-law did this routinely.

Given the rise of cohabitation in the past 50 years, this oscillation in public declaration of marital status was becoming routine–and causing grave injustice in the family court as folks couldn’t be certain of their own marital status. In Stone, even the couple’s own friends were unclear on their marital status. Often one half of a couple considered them married and the other half did not. Some of these couples even disagreed on their own marital status. This uncertainty was the problem common-law marriage was creating. I’m thrilled our Supreme Court finally abolished it.

The April 3, 2019 Supreme Court opinion in Stone v. Thompson, 426 S.C. 291, 826 S.E.2d 868 (2019), addresses the appealability of final orders from bifurcated proceedings for marital dissolution when a common-law marriage is alleged. Stone filed an action in the family court to establish a common-law marriage and for equitable distribution of marital property. The family court bifurcated the proceedings in order to first address the issue of whether the parties were married. After a seven-day trial, the family court determined the parties were married. Thompson appealed the finding of common-law marriage to the Court of Appeals, which dismissed the appeal as interlocutory as the issue of equitable distribution remained to be addressed. The Supreme Court granted certiorari on the issue of the appealability of the final order establishing a common-law marriage when the litigation posture anticipated a subsequent final order issuing.

The Supreme Court reversed the Court of Appeals by finding the order finding a common-law marriage was immediately appealable. In doing so the Supreme Court interpreted the “substantial matter” language of S.C. Code § 14-3-330(1), which authorizing appeals of:

(1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions; provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from S.C. Code Ann. § 14-3-330(1) (1976). An order involves the merits under § 14-3-330(1) when it finally determines some substantial matter forming the whole or part of a cause of action or defense

In deciding the order finding a common-law marriage determined a “substantial matter,” the Supreme Court noted, “Stone’s actions for divorce and equitable distribution require a determination the parties are married. This determination is substantial, not only as a part of the causes of action, but also in terms of the larger effects of marriage across other areas of law.” It thus found the appeal was appropriate. Rather than remanding the matter back to the Court of Appeals for a decision on the merits of Thompson’s appeal, it retained jurisdiction to resolve the remaining issues. A second Supreme Court opinion will likely issue on whether a common-law marriage exists. If it finds one does, the parties will be back to the family court to address property division.

In his concurrence Chief Justice Beatty expressed displeasure with this case having been bifurcated:

I write separately to express my displeasure with the manner of trial of this case. In my view, bifurcation in a domestic relations case should be rare if ever at all. The emotional and contentious nature of most domestic relations cases all but guarantees an expensive, long, and tortuous path to resolution. Bifurcation only adds to the expense and delayed resolution. Moreover, bifurcation thwarts this Court’s long-held policy to avoid piecemeal appeals. This case is a prime example of this problem.

One way to avoid the problem noted by Beatty would be to abolish common-law marriage, something I’ve long advocated. It is shocking that folks can find themselves unwittingly or accidentally committing to one of the most consequential commitments humans can make [an apropos joke I heard just last week: What’s the longest sentence in the English language? “I do.”]. There simply shouldn’t be confusion over whether folks are married or not.

However given that South Carolina still recognizes common-law marriage, it seems ridiculous to litigate marital property or spousal support issues before one establishes that a marriage has taken place. Common-law marriage cases are one of the few family court proceedings where I would always bifurcate. Whenever a party is required to establish a legal status [spouse; de facto custodian] before obtaining relief, bifurcation should be the norm.

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

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