Category Archives: Court Orders

“Early Neutral Evaluation” For The South Carolina Family Court Bench and Family Court Attorneys In The Wake Of Kosciusko v. Parham

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. …”.

Full stop.

Although there is so much to “unpack” within Kosciusko, I found the following excerpts to be the beating heart of this opinion:

Continue reading →

The Quest For Precision In The Practice Of Family Law – When Words Matter

I love words.

I absolutely love to find where and when the writer’s economic use of words becomes both effective and impactful [as just one such example, one of the first associate justices of the United States Supreme Court, Justice Joseph Story (1811 – 1845), wrote this: “In the law, the power of clear statement is everything”].

I love how words such as “binary” or “concurrent” or “paradox” or “compel” or “expressly” or “constellation” or “default position” or “pertinent” or “nuanced” – along with many, many other such words – just sound so right to me, and fit so seamlessly into sentences and paragraphs and documents and agreements.  I love to have read a great book and find some turn of a phrase from the author – perhaps even a single sentence – which became memorable to me.  And (maybe much to your chagrin) I also love footnotes…I love the way a footnote can be effectively used to explain a point, but not to “get in the way” of the writer’s intent in making that particular point.

I love the constant struggle (and for family law attorneys it most definitely is a struggle) – that quest – to translate a negotiation or a discussion or “spoken-out-loud” streams of thought into a clarity of words, phrases, and paragraphs so that, no matter the reader, everyone immediately knows not only the intent of the use of those words, but also the precise point being made by them.

Last year an excellent and skilled young attorney asked that I review a final marital settlement agreement which some years earlier had been approved by the family court judge and entered of record (note here: the “requesting attorney” was not the one who had drafted this settlement agreement); and I was struck by this provision which had become court-approved so as to govern the parties’ conduct under the court’s contempt powers:

“Children’s Extracurricular Expenses:  The parties acknowledge that the children have historically been involved in various sports and other extracurricular activities, lessons, church activities, and overnight summer camps, and that they wish to have the children continue with such activities.  The parties shall pay the expenses related to all agreed upon extracurricular activities, sports, lessons, and camps, as follows: 90% Husband and 10% Wife.” Continue reading →

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).

Continue reading →

(My Former) Pet Peeves Regarding Proposed Family Court Orders – Misguided, Misunderstood And Misconduct

Note: A number of years ago I had written an article which I was fortunate to have published in the SC Lawyer magazine centering on the significance of family court orders.  Of interest (at least to me) is that even now I have continued to “cross paths” with family court orders which might be problematic to the attorneys and their clients; and so I thought that some of you family court attorneys out there might have and take the time to read what I had described as a “cautionary tale”, hoping that you might find something helpful to you.  Good luck out there.  [Disclaimer: this article is longer than a more “typical” blog.]

” Twas brillig, and the slithy toves did gyre and gimble in the wabe; all mimsy were the borogroves, and the mome raths outgrabe.  Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun the brumious Bandersnatch!”*

[*“Jabberwocky” (in part) from Through the Looking-Glass and What Alice Found There” (1872 by Lewis Carroll): “When Alice has finished reading the poem she gives her impressions:  ‘It seems very pretty’, she said when she had finished it, ‘but it’s rather hard to understand! (You see she didn’t like to confess, even to herself, that she couldn’t make it out at all.) ‘Somehow it seems to fill my head with ideas – only I don’t exactly know what they are!’ ]            

 Did you read this, and did you understand what it says…and what it means? And are you certain the opposing attorney and his or her client understood it?  Perfect.  You’ve just sent your family court judge your proposed order for the judge to sign.

When you sent the “proposed order” to the judge, what exactly did you want the order to accomplish, and what result did you seek?  Did you want to sound smart?  Did you want the order to sound or be purposely vague? Were you guessing at what the judge had ordered and instructed? Did you try to cleverly add several “findings” or “conclusions” or (please say no) slip in some additional relief for your client that the judge never ordered?

Answer this question for me: in order of priorities from the list below, what do you believe is most important to your family court judge after the conclusion of your case?

  • Making certain the proposed order accurately states the judge’s ruling?
  • Making certain the proposed order is grammatically correct, with the judge’s name spelled correctly?
  • Making certain the proposed order is sent to the judge as soon after the hearing or trial as possible?
  • Making certain that if you cited statutes or appellate court opinions in the proposed order, they were a correct statement of the law applicable to the judge’s ruling?
  • Making certain the proposed order, as to form, complied with the South Carolina Rules of Family Court or the South Carolina Rules of Civil Procedure?
  • All of the above?
  • Any of the above?

Continue reading →