Category Archives: Attorney’s Fees

Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

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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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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.