For the South Carolina family court bench and family court bar, the South Carolina Court of Appeals in its published opinion in the case of Kosciusko v. Parham, S.C.Ct.App., Opinion No. 5690, filed November 6, 2019, (1) immediately compelled the cancellation of every scheduled binding arbitration where the issues for resolution were “child-related” [e.g., the school to be attended by the child; or the extracurricular activities in which a child could participate; etc.]; (2) immediately sent the family law attorney rushing to pull a file where a client’s court-approved settlement agreement had included a provision “compelling binding arbitration” in the event of the parents’ impasse on any child-related issue; (3) gave immediate pause to any sitting family court judge who, at some point during the trial of a case and while on the record, might have announced to the party-litigants that “I need to hear from the guardian ad litem who I consider to be the eyes and ears of the court”; and (4) required family law attorneys to determine what ADR “alternatives” now remained available to the attorney in the resolution of complex child-related issues given, perhaps, a client’s limited financial resources to wage seemingly unending litigation between warring parents.
Kosciusko v. Parham concluded by stating the following: “Based on the foregoing, we hold that the family court does not have subject-matter jurisdiction to sanction or approve binding arbitration of children’s issues. …”.
Although there is so much to “unpack” within Kosciusko, I found the following excerpts to be the beating heart of this opinion:
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).