Category Archives: Alimony

Noojin v. Noojin – The 2016 South Carolina Family Law Case Of The Year

If you practice family law in South Carolina, then you may agree that it is a rare occasion when our appellate courts publish an opinion during any given calendar year which changes the trajectory of how we practice family law.  More often than not, a published opinion tends to validate our collective understanding of how we are to micromanage various aspects of the clients’ cases moving forward (such as, the Wannamaker v. Wannamaker, 395 S.C. 592, 719 S.E.2d 261 (Ct.App.2011) case, which recognized the family court judge’s discretion in valuing a spouse’s retirement account based on that party’s actual contributions into the account rather than valuing it based on a “present value” computation of a forensic expert; or perhaps the Roof v. Steele, 413 S.C. 543, 776 S.E.2d 392 (Ct.App.2015) or Woods v. Woods, S.C.Ct.App. Opinion No. 5430, filed July 27, 2016 cases, which (once again) discussed the various factors applicable to an alimony modification case; or perhaps the Buist v. Buist, 410 S.C. 569, 766 S.E.2d 381 (2014) case, which addressed the factors in awarding – or challenging the award of – attorney’s fees).

However, there are also those occasions when our appellate courts publish opinions which were impactful enough to have forced us to rethink, refocus, and reprocess (1) the way in which we advised clients in the preparation of their family court case, (2) the way in which we prepared the evidence and testimony for the trial of those cases, and (3) the way in which we actually conducted ourselves inside the courtroom at motion hearings or during trial.  And the notion that there is, most probably, a trajectory-changing “case of the year”  lead me down a path of reviewing the various family law opinions published by our South Carolina Supreme Court and South Carolina Court of Appeals from 2011 through 2016, and I came up with my own personal “list of favorites” below (you have the absolute right to disagree with my selections…and choose your own).

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For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

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Revisiting Crossland v. Crossland

On July 2, 2014, a unanimous South Carolina Supreme Court in Crossland v. Crossland reversed a 2012 decision of the South Carolina Court of Appeals on all issues (alimony, equitable division, and attorney’s fees), fully reinstated the family court judge’s order, and in the process gave South Carolina’s family court bench and bar one of the most impactful opinions rendered by our appellate courts in years.

The Crossland opinion offered a broadened view and an in depth discussion affecting an array of significant family law areas including:

  • how an appellate court determines whether a judge has “abused his or her discretion” in rendering a decision;
  • the application of the “alimony factors”;
  • a footnoted discussion regarding future modification of an alimony award;
  • the family court judge’s broad discretion to award alimony and determine the amount of the award without being held to any mathematical formula or “bright-line rules”;
  • a detailed discussion regarding “imputation of income” and “earning capacity”;
  • the appropriate test or standard for the family court judge to employ regarding when and how to measure or determine the financial impact of a party’s eligibility to receive “government benefits”, such as Social Security retirement benefits;
  • the application of the “equitable apportionment factors”;
  • the implication of the appellate courts’ favoring a 50-50 division of the marital estate in long-term marriages; and
  • the application of the factors governing an award of attorney’s fees and litigation costs.

I want to take three excerpts from this opinion which I believe might be of interest, significance and importance to the family law bar (I’m omitting any statutory or case law cited within these excerpts):

“An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. …  The inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts’ effort to incorporate the two sound principles underlying the proper review of an equity case.  Those two principles are the superior position of the trial judge to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.” (Emphasis added)

“Wife seems to ask this Court to create a rule that income should never be imputed on the basis of eligibility for government benefits; however, a bright-line rule is not only unnecessary in light of existing case law, but also inadvisable. … We leave it largely to the family court judge’s discretion, however, to determine what is an appropriate alimony award in light of the circumstances of each individual case.  Formulaic principles and bright-line rules will only hinder the ability of family court judges to reach an equitable result in this individualized, fact-sensitive area of law. …“. (Emphasis added)

“This Court has held while there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage. … The purpose of the general fifty-fifty division is to protect the non-working spouse who undertook the household duties, and to prevent an award ‘solely based on the parties’ direct financial contributions’ “. (Emphasis added)

I would strongly encourage that you make a number of copies of the Crossland case and place a copy in every case file which involves any of the issues addressed in this opinion, because I’m reasonably certain that your family court judge will have a copy of this case on his or her bench, and will be referring to it frequently in the decision-making process.