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:
Last year I wanted to try and single out what I felt to be one of our South Carolina appellate courts’ published opinions which I believed to be of some significance for our State’s family court bench and bar and/or which, at least in my view, represented a unique use of our existing statutes, court rules, or Supreme Court orders (1) to achieve a successful outcome for that affected client, (2) to provide appellate court “clarity” to certain difficult and complex areas of family law, and/or (3) to perhaps add another, significant “arrow into the quiver” of the family court bar moving forward.
For 2016, I had selected the case of Noojin v. Noojin, which not only had a significantly interesting fact-pattern, but one which addressed in great detail a range of contempt of court-related and parental alienation-related issues; and which also provided our family court bar with a more defined “road map” on when and how to address these issues both with the client (in advance of trial) and at the trial of the case which involved these issues.
In Ashburn v. Rogers Beaufort attorney, Sharnaisha Naki Richardson-Bax, utilized and applied Rule 60(b)(5), SCRCP in a manner which ultimately opened the proverbial door for our appellate courts to revisit – and offer some clarity to – the legal doctrines of res judicata and collateral estoppel. [The Ashburn decision turned on the inequitable notion that once a putative father made an admission of paternity of a child who, it was subsequently determined, was not his child, then under these legal theories of res judicata and collateral estoppel, it was too late to challenge that admission.]
If you’ve practiced family law in South Carolina for any length of time and attended mandatory CLEs where one of the presenters was a South Carolina Court of Appeals judge, how many times have you heard that judge state (1) if the issue is related to equitable apportionment of the marital estate, then the family court judge’s order is required to have addressed in some form all of the “15 equitable apportionment factors” – or – (2) if the issue is related to alimony, then the family court judge’s order is required to have addressed in some form all of the “13 statutory alimony factors”?
And if you are the “prevailing attorney” and have been requested by your trial judge to prepare the proposed order, how would you explain to your client why the trial judge’s appealed order was “remanded” by an appellate court for (your?) failure to have expressly addressed these various, point-by-point “factors” in the order?
While remanding a case back to the family court can be costly to your client (if you’re continuing to charge a fee for this “scenario” which you may have created) and certainly time-consuming, a failure to have prepared and presented to your trial judge a client’s financial declaration which is accurate, truthful to the best knowledge of the client, thorough and thoroughly prepared (with annotations and footnotes, if necessary, or having an attached, detailed “marital assets addendum”) is a fatal error by the attorney, which can (and most often will) have a substantial effect on the financial issues decided by your trial judge.
And yet the financial declaration remains one of the most poorly prepared documents covering the entire spectrum of family court litigation.
If you were practicing family law in South Carolina prior to 1979, then you were able to advise your clients, with some reasonable degree of certainty and with only certain limited exceptions (such as a child’s disability), that when their child reached the age of 18 and became an “adult”, the parents’ legal obligation to provide court-ordered financial support for that child ended.
And then this happened …
In 1979, the South Carolina Supreme Court, in the then precedent-setting case of Risinger v. Risinger, determined that a parent’s potential court-ordered obligation to provide child support for his or her child did not necessarily stop at the “water’s edge of adulthood”, but rather, if that 18-year old child decided to go to college (or have a “post-secondary education”), then both that child’s decision and his or her college-related expenses could be considered “an exceptional circumstance” under the now-repealed Section 14-21-810(b)(4), SCCA, [this code section was replaced by the current Section 63-3-530(A)(17)] which supported the family court’s authority to require the parents to continue to provide college-related financial assistance for that child, as a matter of law.
And from 1979 until 2010, that issue was settled law in South Carolina – staredecisis.
If you frequently (or routinely or never) use qualified medical child support orders (QMCSO) in your family court cases, their intent is to protect your clients in addressing health insurance issues and continued coverages for children of divorcing parents. I have only occasionally seen that issue raised or addressed in mediations around the State.
Medical child support orders are statutorily recognized in South Carolina Code Ann. Section 63-17-2120.
There was also an interesting unpublished opinion filed on December 20, 2011, by the South Carolina Court of Appeals in the case of Williams v. Williams in which this was one of the trial issues. Briefly, the mother had requested during trial that the family court judge require the father (and the father’s employer) to agree to the issuance of a QMCSO. The father’s attorney (and, with qualifications, the father) conceded to the court that the father did not oppose this request; however, the judge failed to order it, and the Court of Appeals reversed and remanded, indicating that the on-the-record “stipulation” bound the father to comply with the mother’s request.
You may want to take another look at the QMCSO to see if it may be of benefit to your clients. It applies to group health insurance plans subject to ERISA laws. I found a pretty good website at www.dol.gov/ebsa/publications/qmcso.html which provided a substantial amount of information on QMCSOs.
This post will be brief and is simply to serve as a reminder to the family law bar that, as you are most probably aware, the South Carolina Child Support Guidelines have been revised, effective July 1, 2014.
Although I have not yet had the time to make a line-by-line comparison between the 2006 Guidelines and the 2014 version, I did notice that the “maximum combined earnings level” has been increased to $30,000 per month or $360,000 per year, above which thresholds the court would establish the amount of the payor’s child support on a case-by-case basis.
I also noticed under “Unusual Custody Arrangements – Shared Parenting Arrangements” where a “graduated support obligation” would be used if the nonplacement parent has more than 109 overnights but less than 128 overnights of timesharing, including provisions addressing the mechanisms to be used by the family court in determining the amount of the payor’s support obligation.
Finally, there is a revised “Periodic Review” provision which will certainly be of interest both to the family court bench and bar.
As I continue to work through these “comparisons”, I will try and post further comments in the future.