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South Carolina Supreme Court’s New Revisions To Rule 8 (Confidentiality) Of The South Carolina Alternative Dispute Resolution Rules

On or immediately after May 1, 2018, the South Carolina General Assembly will most probably have approved the South Carolina Supreme Court’s Order of January 31, 2018, making substantive and impactful revisions to Rule 8 of the South Carolina Alternative Dispute Resolution Rules (SCADR); and I believe, at least from my perspective, that the South Carolina family court practitioners should be aware that there may be certain “unintended consequences” resulting from these Rule 8 revisions.

SCADR Rule 8 is, and has been from its inception, the Rule governing the confidentiality of the mediation process.  Currently, Rule 8 begins by stating that “(C)ommunications during a mediation settlement conference shall be confidential”; and then the Rule moves forward from there.

The genesis for the “revised Rule 8” most probably came from the fairly recent case of Huck v. Avtex Commercial Properties, Op. No. 5500 (S.C. Ct.App. refiled on March 28, 2018), where one of the appellate issues focused on the appellant’s effort to disclose and introduce at trial a purported agreement which had been reached by the parties during their mediation; and in addressing that particular issue, the South Carolina Court of Appeals stated the following, in pertinent part:

“We find the trial court erred in denying Avtex’s motion to disclose settlement.  The documents referred to in Rule 8 are designed to protect any documents prepared for use by the mediator and the parties to the mediation itself.  Once the parties reach a settlement, documents prepared in conjunction with the settlement and release are not for the purpose of, or in the course of, mediation.  Rather, they are documents prepared in connection with the litigation and to bring the litigation to a close.  Rule 8 is designed to protect the communications made during the mediation itself and to protect the process.  The parties’ mediation agreement reinforces the rule and simply incorporates the same language.  The request for production of the settlement documents does not disclose confidential information from the mediation (i.e., it does not disclose or discuss information the parties utilized to reach the settlement).  Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidential provisions.” (Emphasis added)

Our Supreme Court’s ordered revisions to SCADR Rule 8 are intended to offer more clarity (1) as to parameters of “confidentiality” during the “course of the mediation proceeding”, and (2) as to what can, will – or might – fall outside these “confidentiality parameters”.  And so with that stated, I would like to try and breakdown, section-by-section, the revisions to Rule 8 which will now govern the mediation process beginning around May 1, 2018, and I have tried to emphasize in bold lettering the “new revisions” from the current SCADR Rule 8, and then provide some brief “comments” regarding each of these revisions:

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How Do You Successfully Mediate Feelings – And Why Is “Validation” So Critical (And So Frequently Overlooked And Misunderstood By The Mediator)?

[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator).  However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation.  And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form.  Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, validation”, within the first 2 hours of an intensive 40-hour course.  So let’s just start there.]

“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”.  And …

“Mediation is the art of recovery.” (From “Family Court Mediation Training Program”)

Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:

I retired from the South Carolina family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator.  I just knew I could settle every case by sheer force of will and experience.  Wrong…and big mistake.

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In Tribute To My Child

[To the reader: I wrote this “tribute” in December, 1999, and gave it to my children at Christmas of that year as a “stocking-stuffer”.  My children (a daughter and a son) were teenagers then and I’m pretty sure they would have preferred something more “cash-worthy” at that time.  Nevertheless, as a parent it was meaningful to me and heartfelt – and as the years have flown by the words have become even more meaningful to me … and I felt that perhaps some of you parents out there might enjoy taking a moment in time to read it.]

______________________________

IN TRIBUTE TO MY CHILD

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child … because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless … and unconditional.

I write this in tribute to my child.

_________________________________

 

A Proposed Revision to Rule 25, SCRFC – Making Pretrial Discovery In The South Carolina Family Courts More “Lean, Mean…And Affordable (To The Clients)”

Do all of you attorneys who practice family law in South Carolina know what the current Rule 25, SCRFC, actually says…or have we all now simply become accustomed to announcing to the presiding family court judge at the initial temporary hearing that “(we attorneys) have agreed to ‘open discovery’, your Honor … we’ve agreed to use the Rules of Civil Procedure”.

The current Rule 25, SCRFC, says this:

“RULE 25
DISCOVERY

Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”

Unfortunately, practicing family law in the 21st century, and especially in the larger judicial circuits in South Carolina, is akin to playing some type of “video combat game”, and the notion that family law attorneys will “voluntarily” exchange, well, anything, much less “information and documents”, is practicing family law without a safety net (can you say “malpractice”?).  Consequently, the use of the pretrial discovery “sword-and-shield” provided by the Rules of Civil Procedure offers that layer of protection to those of you who might be more, well, litigious-minded (i.e., how many hours can you bill for drafting interrogatories or requests for production of documents or taking the deposition of the guardian ad litem….you know, those things which have a “meaningful” impact on your evaluation of your client’s case and your trial strategy?).

Ask yourself this question: in a calendar year of family court cases, in how many of those cases did the time spent in your “pretrial discovery process” generate a final financial result for your client which exceeded the client’s fees in paying for the time spent by your paralegal and/or you in pretrial discovery?  And in how many of those cases did the information produced in your using this same discovery process have a direct result in your client “winning” custody of the children?  If the answer to this question was “every time”, then stop reading this blog post, and have a good life.

In 2005 there was an effort among several family court judges to make significant revisions to Rule 25, SCRFC (which I will set forth below).  Those efforts were met by varying emotions, reactions, and comments from both the family court bench and bar ranging from benign silence, to scorn, to outright derision.  The “framers” of these revisions did NOT take it personally,..however, all subsequent efforts ceased.

And so, here they are once again, over a decade and, perhaps collectively, millions of dollars of your clients’ attorneys’ fees, later….read on at your own peril: 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?

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Federal Preemption And The Acronyms For Federal Retirement Plans (a/k/a The “Mysterious Alphabet” Of The Family Court)

If you have the time (or if you are able to take the time) to read through the materials below, then you’ll quickly find that you’ve entered the very murky waters of an area of the practice of family law that often sends chills up and down the spines of family court attorneys – federal preemption and federally-connected retirement or survivor plans [think “QDROs” or “COAPs”].  I’ve simply tried to give you a “taste” of some case law which might cause you to dig a little deeper into the preparation of your clients’ marital settlement agreements or your own trial preparation if your clients’ futures (and certainly your clients’ marital assets) are affected or impacted by these areas.  Good luck out there.

I.  FEDERAL PREEMPTION:

Fisher v. Fisher, 319 S.C. 500, 462 S.E.2d 303 (Ct.App.1995): “Federal preemption did not preclude application of state equitable distribution laws where Congress had not explicitly excluded (military) early separation incentive pay from state apportionment laws.”

  • Social Security benefits

 Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1 (Ct.App.2005)“Although we are sympathetic to Wife’s claim, Social Security benefits simply cannot be divided in an equitable distribution award.  Because Congress preempted the Social Security arena, state courts do not have subject-matter jurisdiction to mandate distribution of such benefits whether by agreement or otherwise.”

  • Military Survivor Benefit Plan annuity

 Silva v. Silva, 333 S.C. 387, 509 S.E.2d 483 (Ct.App.1998):  “Major Silva (husband) and Brigitte (first wife) married in 1972 and divorced in 1985.  In a settlement agreement merged into the divorce decree, husband agreed to designate Brigitte as the beneficiary of his military Survivor Benefit Plan.  The decree provided further that the husband would complete all necessary paperwork and provide documentation that he had done so.  Although sometime during their marriage husband had named Brigitte as his spouse beneficiary, he failed to comply with the court’s order and execute the necessary forms to ensure that Brigitte, as a former spouse, would receive the benefits.

 In 1987 husband married Wendy (second wife).  In December 1992 husband died.  Because husband failed to complete the paper work that would allow Brigitte as his former spouse to collect the SBP annuity, Wendy, as husband’s widow, began receiving the annuity pursuant to the default provisions of the SBP.

 In 1994 Brigitte filed suit in circuit court seeking to (1) impose a constructive trust over the SBP payments being received by Wendy, (2) order an accounting of all SBP proceeds, and (3) disgorge all payments already received by Wendy.  At trial, Brigitte’s attorney conceded that husband assumed that Brigitte would receive the benefits because Brigitte was still named as the spouse beneficiary.  The attorney also stated Brigitte was not alleging husband was guilty of fraud, deceit, or malice by his inaction.  The trial court refused the requested relief.

 “The SBP (military Survivor Benefit Plan) was created by Congress in 1972.  The system was designed to provide an annuity payable to a retired service member’s surviving spouse or child upon the service member’s death. … A 1982 amendment expanded SBP coverage, allowing a service member the right to designate a former spouse as the beneficiary. … The following year Congress clarified the 1982 amendment and provided a retired participant the right to name a former spouse as the beneficiary if at the time of retirement the service member had designated the spouse as the beneficiary and the couple subsequently divorced.  To do so, however, the service member was required to notify the appropriate government official in writing within one year     following the date of the decree of divorce, dissolution or annulment.

 …A former spouse is allowed only one year from the date of the court order or filing to do so (write the appropriate government official upon the failure or refusal of the service member to have sent this written request).  Congress has further provided that the SBP annuity ‘is not assignable or subject to execution, levy, attachment, garnishment or other legal process.’

We find the reasoning of the Georgia court persuasive and conclude that the provisions of the SBP make clear Congress’s intention to occupy the field under these particular circumstances.”

  • Employment Retirement Income Security Act (ERISA)

 Walsh v. Woods, 371 S.C. 319, 638 S.E.2d 85 (Ct.App.2006)“Any and all State laws insofar as they relate to employee benefits plans are preempted by ERISA.  This Court has recognized that the preemptive effect of ERISA is a broad one.

 …While ERISA related claims involve subject-matter jurisdiction, 29 U.S.C.§1132(3)(1) vests both state and federal courts with concurrent subject-matter jurisdiction of certain civil actions brought by the participants or beneficiaries against an employee benefit plan.  Nevertheless, under preemption principles, federal ERISA law must control our decision on the issue of Wife II’s claim to the SSB (surviving spouse benefits).

(Factual note:  In the present case, at the time husband retired in 1989, the SSB vested in Wife I because the two were still married.  Although husband had a ninety-day  window prior to his retirement in which he could have, with Wife I’s written consent, removed her as a beneficiary of the SSB, this was not accomplished.  After husband retired, even if Wife I had agreed to waive her SSB, she could not do so under ERISA.  Wife I’s purported waiver in the divorce agreement was ineffective to waive the SSB because ERISA does not allow a beneficiary to waive SSB after a plan participant retires.  …  ERISA provides SSB may not be paid to a spouse who marries a participant after the participant’s retirement.”]

 …It does seem untoward that husband should not be able to have a component of his qualified joint and survivor annuity awarded to Wife II, rather than a woman from whom he has was divorced and did not have a relationship with for years before his death.  However, in keeping with our reading of federal law, there is no other resolution possible.

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In Tribute To My Child

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child…because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless…and unconditional.

I write this in tribute to my child.

Panhorst v. Panhorst And The Cheshire Cat

From Wikipedia: “The Cheshire Cat is a fictional cat popularised by Lewis Carroll in Alice’s Adventures in Wonderland and known for its distinctive mischievous grin. While most often celebrated in “Alice”-related contexts, the Cheshire Cat predates the 1865 novel and has transcended the context of literature and become enmeshed in popular culture, appearing in various forms of media, from political cartoons to television, as well as cross-disciplinary studies, from business to science. One of its distinguishing features is that from time to time its body disappears, the last thing visible being its iconic grin.”

Here’s the scene (this is an absolutely true story): I’m holding court in Richland County in my very first week as a family court judge, and on my docket is a contested hearing with the infamous Douglas Kosta Kotti and another family law attorney, and before I start their case I invite them back into my chambers for a quick pretrial conference and to introduce myself to them.  The two attorneys are cordial to each other and are both wary of me (justifiably so), and within a millisecond of being seated, Douglas K. Kotti blurts out, “Judge, I don’t know why we’re here.  This case is governed by Panhorst v. Panhorst, and (the opposing attorney) wants to get into property and debts these folks had years ago and those things are gone…they’re GONE, Judge….well before the wife ever filed her Complaint.  It’s clearly a Panhorst case, and we’re wasting your time with it.”  Wow, I thought … pretty cool start.

The opposing attorney then began by quietly, carefully, artfully, and rather skillfully laying out his position as to why the parties’ marital assets and marital debts were “in play”; and every time this attorney completed a single thought, Douglas Kotti would mutter “it’s a Panhorst case, man”.  Well, after about the third such “exchange” between the attorneys, Doug Kotti was now down to simply saying “Panhorst, but this time I was watching him more closely, and he was turning his head away from the other attorney…and D. Kotti was smiling.  The other attorney could not see this ever-broadening smile, but that attorney was fuming by now…and I have to admit that I egged it on (somewhat) by asking Kotti if he “cared to elaborate” on his position, and HE knew I was into his ploy.  “Judge, one word – Panhorst.”  And with that, the other attorney let out a scream in that office as he pointed his finger at DKK and said almost nose-to-nose: “G…d…it! If you say Panhorst one more time I’m going to knock the ever-living s..t out of you right here, in this office, in front of this judge!!!”

And with that, DK looked that attorney straight in the eye and almost breathlessly whispered, “Panhorst.  And then the strangest thing happened right in front of my eyes: K completely disappeared inside that office except for the last thing visible: the largest smile I have ever seen on a face of man or beast!  A thing to behold.

And Doug Kotti – a/k/a “The Cheshire Cat” – forever became a legend to me…and we’ve been fast friends from that day forward.

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In Tribute To My Child

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child … because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless … and unconditional.

I write this in tribute to my child.