Early in my legal career I used to habitually drive the Honorable Wayne Morris Creech nuts over what I perceived as minor offenses.  Saying “yeah” rather than “yes” would lead to admonishment.  Perhaps nothing drove him crazier than when I would directly address opposing counsel in responding to counsel’s arguments.  I was never quite sure what I was doing wrong but every time I used the second person pronoun in argument, Judge Creech would stop and chastise me.  At one point he became so frustrated he threatened to hold me in contempt.

Finally I had an “aha” moment.  What Judge Creech wanted me to do was substitute the third person pronoun for the second person pronoun.  A simple change from “you said” to “he said” satisfied him.  Earlier this week my new mentee argued her first motion in front of Judge Creech.  During the post mortem, she noted that she was admonished for directly addressing opposing counsel.  I could sympathize.

When responding to arguments, it’s natural to address the arguer directly–that is, to use the second person pronoun.  While most judges discourage such argument, Judge Creech is a stickler for banishing it.  There’s much wisdom to his policy.  First, it encourages civility.  Since court is an emotionally volatile setting, any argument that reflects poorly on opposing counsel tends to be amplified.  By directing one’s arguments away from opposing counsel, and directly to the judge, the argument becomes less of a personal attack.  Further, since the goal of argument in court is to persuade the judge, making one’s arguments in the third person forces one to make the argument to the judge rather than to opposing counsel.  It’s simply a better form of advocacy.

In hindsight, I can see that what appeared to be picayune fussing was actually Judge Creech’s attempts to make me a better gentleman and a better advocate.  It’s great to know he continues this efforts with the next generation of lawyers.  If only all judges considered it part of their mission to turn new attorneys into better attorneys.

For attorneys who also act as mediators or guardians ad litem, many family court judges’ interpretation of Calhoun v. Calhoun, 331 S.C. 157, 164-65, 501 S.E.2d 735 (Ct.App. 1998) can cause problems.  In Calhoun, Sally Calhoun, a family law attorney, sought fees at trial for the time she spent representing herself pro se.  She argued that she was entitled to fees because “the time and effort devoted to this action …diverted the time that she could otherwise have utilized in income producing activity.” The family court denied her fee request and the Court of Appeals affirmed, noting “an award authorized by statute presupposes an obligation by one person to reimburse another person who has provided legal representation” while “[a]n attorney who appears on his or her behalf does not incur an obligation to pay attorney fees.”

The Calhoun holding is explicable when the attorney is an actual party to the domestic litigation.  However, the rationale of the Calhoun case wouldn’t seem to apply when that attorney is bringing a rule to show cause [enforcement action] to collect a family court ordered fee for him or herself in the role of a party’s attorney, or as a guardian or mediator.  I have gotten around Calhoun when prosecuting a rule to show cause over a court-ordered attorney’s fee by noting that my client would be liable for my fee if the opposing party didn’t pay it.   However, since the court will not order fees for such collection efforts regarding guardian or mediation work, family court litigants can stiff the attorney/guardian or attorney/mediator with relative impunity.

Such a situation arose this week.  I had been court-appointed to mediate a divorce case filed in Berkeley County.  Each party owed me $271.25 and the wife refused to pay me. I filed and prosecuted a rule to show cause–taking up four hours of time–only to have the family court judge, The Honorable Wayne M. Creech, citing Calhoun, refused to award me fees for my time.   He noted I could have retained an attorney to bring the rule and that attorney could have been awarded fees.  However doing so would have saved me little time, as I still would have needed to draft my affidavit to support the rule and attend the rule hearing.

While I am unclear whether the Calhoun holding is limited to situations in which the attorney attempting to collect the fee is a party to the action, I had no intention of debating this issue with Judge Creech.  The appellate courts have provided no guidance on this issue because no family law attorney has deigned to appeal one of these decisions.  Were I a family court judge, I would probably take the conservative approach Judge Creech did.

However, I simply can’t justify spending four hours to collect $271.25.  After the hearing I asked Judge Creech if I could approach the bench.  I informed him that while I enjoyed being a court-appointed mediator and guardian in his county, it was problematic if litigants could force me to bring collection actions for my fee and I could not obtain reimbursement for my time devoted to such collection efforts.  I asked if he had any potential solutions.

One reason I adore Judge Creech is that he appears to have spent more time thinking about the right way to administer justice within our family court system than any other person I know.  He did not have to spend time thinking about his response because he, clearly, had already spent time thinking about this dilemma and possible solutions.  He concurred that it was unfair that court-appointed mediators and guardians could not automatically collect fees for their time spent enforcing court-ordered fee awards.  But he had a solution–actually a few solutions.

The first solution he offered was contractual.  He noted that nothing prohibits mediators from writing into their mediation agreements a provision that they will be entitled to their hourly rate as attorneys (I charge a higher hourly rate as an attorney than I do as a mediator or guardian) for any time required to collect mediation fees.  With such a contract in hand, family court judges would have contractual authority to award fees.  One could do something similar with guardian cases but typically litigants don’t sign agreements with the guardian.

His other solution was to add language to court orders allowing the guardian or mediator to obtain fees at his or her typical hourly rate for efforts necessary to enforce court-ordered fee obligations.  He suggested that if guardians and mediators asked the judges appointing them to include such provisions in their orders, judges would almost certainly do so.  Even if the order initially appointing the guardian did not contain such a provision (which is likely to happen since the guardian typically is not involved in the drafting of the order appointing him or herself as guardian) the guardian can always ask for such a provision in the final order of the case.  The parties can’t really object to such a provision, as it would only come into effect if a party disobeyed the court order and litigants are not going to want to give a family court judge this concern when that judge is deciding their case.

Based on Judge Creech’s advice I have added to my mediation agreement a provision that the parties will pay my hourly rate as an attorney for any time I spend collecting my fee.  I am going to seek language in orders regarding my mediation and guardian fees with the same protection.  South Carolina family law attorneys who accept court-appointed mediation or guardian work are encouraged to do the same.

My materials for a February 9, 2010 National Business Institute lecture on Advance Family Law are available here:  Getting the Child Heard

Last year, shortly before imposing a criminal contempt sentence on a mother who had repeatedly and blithely interfered with my client’s visitation, the judge asked her: “Do you love your child more than you hate the other parent?”  I have practiced family law for sixteen years, yet the question was initially shocking and I continue to ponder it when I reflect upon my past and think about my present custody disputes.  While no parent would answer that question out loud with a “no,” too often parents in custody disputes act in a manner that suggests otherwise.  Nowhere is this more apparent than the three days that create more custody conflict than any other: Christmas, Thanksgiving and the child’s birthday.  These are the days when family seems most important, both to parents and to children.  Yet we force children and allow parents to divide family on these days because the law does not demand that parents get along with each other on these days.

The family court almost uniformly alternates those three days: giving one parent Christmas, Thanksgiving or the child’s birthday in even numbered years and the other parent that same day in odd numbered years.  However, if there are three days in a year when, I suspect, most children would like to see their parents together and getting along it would be those three days.  I suggest that parents who truly love their children more than they hate the other parent might find a way to be civil and together with the other parent on those three days.

Numerous studies show that it is not merely the fact of divorce that generates psychological distress for children, but, more importantly, how the child’s parents handle the post-separation conflict that determines the child’s level of distress.  Parents who are incapable of being together and civil to each other three days a year fail to love their child more than they hate the other parent.

The family court can shape as well as reflect expectations.  In my 16 years of practice I have observed shifts from routinely granting fathers every-other-weekend visitation to routinely granting them more visitation.  I have observed a shift from ignoring the effects of secondhand smoke around children to concern over secondhand smoke.  The family court could create a similar shift on expectations over Christmas, Thanksgiving and birthday visitation by merely changing its order from alternating the right to have the child on these days to the right to host the child these days, with the expectation that both parents could be together with the child these days.  I could even envision a culture in which family and friends of divorced parents know that they have to invite both parents to a Christmas or Thanksgiving celebration if they want either parent to attend because the culture’s understanding is that this is how separated parents spend these holidays.

I acknowledge that an order requiring estranged parents to be together and civil three times a year could lead to Jerry Springer levels of animosity and conflict.   However, I sometimes ponder that people rise or fall to meet expectations and if the law’s expectation was that they learn to get along on these three days they might surprise us.  Further the law would communicate to parents (and their children) that we expect parents to act mature and get along when it is “family” time.

Some of my favorite custody clients were parents who were willing to include the other parent on big family events.  Such graciousness communicated love to the child and demonstrated maturity.  Too often parents in custody cases communicate hate and demonstrate immaturity and later complain that they are paying a therapist when the child reaches middle school.  I would encourage all my custody clients (and any parent reading this blog) to consider including the other parent in their Christmas celebration; your child just might think better of you and I would think that trying to be a peacemaker on Christmas captures the true meaning of the holiday.

In December 2008, the South Carolina Supreme Court reestablished a second pilot mentoring program, in which all qualifying lawyers admitted to the Bar between March 1, 2009, and January 1, 2011 are required to have a mentor.  Since I attribute much of my professional success to the numerous informal mentors early in my career [kudos to The Honorable James Bridges, The Honorable Wayne  M. Creech, Nicholas Clekis, M. Dawes Cooke, Susan Dunn, Conrad Falkiewicz, William Hamilton, III, Sally King-Gilreath, Robert Polk and John Taylor] I gladly volunteered for this program.

The saying “by your students you’ll be taught,” though trite, remains true.  Simply going over basic ideas with attorneys to whom these ideas are not obvious is a wonderful learning experience.   Assuming the program is extended past 2011, I might retire having mentored 30-40 attorneys.

The program needs more volunteers:  the goal is to have one mentee per mentor but I was mentoring three newly-licensed attorney until one of my mentees was hired by a Rock Hill firm.   I would urge my fellow South Carolina attorneys to volunteer for this program.

A few months ago I prosecuted a rule to show cause in which the mother had refused to let my client (her ex-husband) take the children to his wedding, even though it was his weekend with the children.  Because I only sought civil contempt (designed to enforce compliance with the order) rather than criminal contempt (designed to punish for non compliance) the result was that my client received an extra weekend of visitation.  His children, of course, will have no memories of their father’s wedding.

Family law attorneys often forget (if they ever remembered) that contempt can be used to punish as well as enforce.  I see more family court judges using criminal contempt sanctions for parents who deny the other parent court-ordered visitation.  I applaud this trend.

As Judge Wayne Morris Creech  (a family court judge in the circuit in which I practice) once explained to an opposing party before sentencing her to jail for criminal contempt after she denied my client his court-ordered Christmas visitation for the second consecutive year in which he was entitled to it, there are “jail people” and “not jail people.”  Not jail people “don’t think about jail is a place that you could end up.  But you come over and you disregard a court order and you thumb your nose at the court…” and Judge Creech might send you to jail.   He further explained:

But, I’m going to tell you this, I have seen this before.  I have dealt with it many times.  I know how to correct it. And here’s how you correct it.  You give jail time.  And you make it grow, and grow, and grow.

I tell you, I have not encountered anybody in 20 years on the bench that I was not able to bring into compliance with court order.  They will do one or two things: Run or comply.  Here’s the reason.  Most people can’t afford to take off six months from work.  And, I could today, with the finding that I have, sentence you to six months in jail.  If I sentence you to six months in jail, you would lose your job.  You probably would lose your home.  I mean, do you understand the repercussions that flow from six months in jail.  I mean, it is life altering.  It is life altering. And, I just haven’t run into many people that are willing to say to me, judge, bring it on.  Heap it on here.

And usually what I do is give a taste.  And I keep telling them, you taste that?  It can get worse.

The few times I have have seen or heard of Judge Creech sending someone to jail over visitation interference  it is has been very effective.  Even putting a parent in jail for just 48-72 hours gets his or her attention in a way that no other deterrent does.

In hindsight, I wish I had sought criminal contempt against the wedding-visitation denying mother.  I doubt an alternative weekend of visitation got her attention (I wouldn’t be surprised if she believes she “got away” with something by reducing the joy of my client’s wedding).  But I have started routinely seeking criminal contempt when my clients’ visitation rights have been interfered with.

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

Recent Blog Posts

The Folly of Fighting Child Protective Services after a Merits Finding

Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I

[ + ] Read More

Court of Appeals determines homosexual couples could not enter common law marriage prior to the Condon case

A July 1, 2020, Court of Appeals opinion in Swicegood v. Thomson determined that South Carolina code prohibited homosexual couples from forming the

[ + ] Read More

College related child care is not work-related child care for the purpose of setting child support

There are a number of South Carolina family court opinions that are of narrow relevance but of significant importance when relevant. Such cases

[ + ] Read More