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).
- 2011: Thiesen v. Thiesen, 394 S.C. 434, 716 S.E.2d 271 (2011). [A spouse cannot commence an action for separate maintenance, for any reason, fault or otherwise, while currently cohabiting with his/her spouse – “We affirm the order of the family court dismissing Wife’s complaint for separate maintenance because she failed to allege that she and Husband were living separate and apart at the time of filing.”]
- 2012: McLeod v. Starnes, 396 S.C. 647, 723 S.Ed.2d 198 (2012). [“Justice HEARN. Less than two years ago, this Court decided Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), which held that ordering a non-custodial parent to pay college expenses violates equal protection, thus overruling thirty years of precedent flowing from Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). We granted permission in this case to argue against precedent pursuant to Rule 217, SCACR, so that we could revisit our holding in Webb. Today, we hold that Webb was wrongly decided and remand this matter for reconsideration in light of the law as it existed prior to Webb. … We now hold Risinger does not violate the Equal Protection Clause because there is a rational basis to support any disparate treatment Risinger and its progeny created. In fact, the case before us particularly demonstrates the need for a rule permitting an award of college expenses in certain circumstances in order to ensure children of divorce have the benefit of the college education they would have received had their parents remained together. Accordingly, we reverse the order of the family court and remand this matter for a determination of whether and in what amount Father is required to contribute to Collin’s college education under the law as it existed prior to Webb.”]
- 2013: Simpson v. Simpson, 404 S.C. 563, 746 S.E.2d 54 (Ct.App.2013). [“We find the family court lacked subject matter jurisdiction to modify the property provisions in the Final Decree. This court has previously held that it is beyond the equitable powers of the family court to reopen and modify court ordered property divisions. See Green, 327 S.C. at 581, 491 S.E.2d at 262 (holding the family court erred by concluding it was within its equitable powers to reopen and modify portions of a property settlement agreement incorporated into a divorce decree). Furthermore, Simpson I affirmed the identification and apportionment of the marital property in the Final Decree. The sole issue remanded to the family court was the issue of attorney’s fees. See S.C.Code Ann. § 20–3–620(C) (“The [family] court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.”); Hayes v. Hayes, 312 S.C. 141, 144, 439 S.E.2d 305, 307 (Ct.App.1993) (holding the family court lacked subject matter jurisdiction to consider wife’s subsequent action for equitable distribution of husband’s retirement benefits). Accordingly, in the present case, it was error for the family court to modify the property provisions in the Final Decree. We also find the family court erred in allowing Husband and Son to relitigate the issue of ownership of the subject properties at the contempt hearings.”]
- 2014: Crossland v. Crossland, 408 S.C. 443, 759 S.E.2d 419 (2014). [“Wife argues the court of appeals erred in holding that, for the purposes of awarding alimony, income should be imputed to her based on her eligibility for social security retirement benefits she has not applied to receive. We agree. …Initially, it is well-established that social security benefits a party is actually receiving would be properly considered as income in awarding alimony. See, e.g., Kennedy v. Kennedy, 389 S.C. 494, 501, 699 S.E.2d 184, 187 (Ct.App.2010) (identifying the husband’s income as being comprised of, inter alia, social security benefit payments). However, the question here is a different one: whether social security benefits should be imputed as income where a person is eligible to receive benefits but has not yet applied for or received them. 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. See Rimer v. Rimer, 361 S.C. 521, 527, 605 S.E.2d 572, 575 (Ct.App.2004) (“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-intensive area of law.”). Indeed, the family court may, but is not in all cases required to, consider eligibility for government benefits, and under the circumstances of this case, the family court did not commit reversible error.”]
- 2015: Moore v. Moore, 414 S.C. 490 (2015). [“Justice KITTREDGE. Today, we recognize enterprise goodwill as marital property subject to equitable division. We continue to hold that personal goodwill, which follows the owner and is entirely dependent on the owner’s personal or professional services and skills, is not marital property subject to division. However, we are persuaded that enterprise goodwill, which inheres in the business itself and is transferrable in the market, should be distinguished from personal or professional goodwill. Accordingly, we elect to follow the emerging majority approach and hold enterprise goodwill is marital property subject to equitable division. See Yoon, 711 N.E.2d at 1272 (“To the extent goodwill is enterprise goodwill, it is divisible.”). We make our decision fully aware of the certainty and ease that would necessarily result from a categorical rule excluding all goodwill from the marital estate. We nevertheless believe that today’s decision will better enable family courts to achieve equity in the apportionment of marital estates and will prove to be workable. See Powell v. Powell, 231 Kan. 456, 648 P.2d 218, 223 (1982) (explaining the question of whether and to what extent goodwill should be recognized as a marital asset “is, in the final analysis, a public policy issue”). To be sure, identifying, valuing, and equitably dividing enterprise goodwill will present challenges, as a practical matter. The fact that enterprise goodwill is intangible will invariably create differences of opinion as to the existence of enterprise goodwill and its value. Yet, experts are routinely involved in family court valuation disputes. We are confident that South Carolina’s excellent family court judges are able to navigate through the myriad issues associated with the identification, valuation, and division of enterprise goodwill to achieve an equitable result.”]
And on July 6, 2016, the South Carolina Court of Appeals gave us, but only in my opinion, the “case of the year” – Noojin v. Noojin, S.C.Ct.App., Opinion No. 5423, filed July 6, 2016 – which, once again, made all of us have to practice family law without a proverbial “safety net”.
With your having read it, then you will know that Noojin was, on the surface, just your basic contempt of court action where the father had alleged the mother had willfully violated those provisions of the parties’ final divorce decree affecting, and interfering with, his child visitation privileges [“(P)rior to the final divorce hearing, (the Noojins) reached a child custody agreement wherein they shared joint custody, with Mother as the primary custodial parent and Father having frequent ‘nights of contact’ and visitation with the children.”] The Noojins’ divorce decree was entered of record on April 8, 2011, and the contempt action was commenced by the father in February, 2013.
Although it is certainly neither feasible nor practical to include very lengthy excerpts from this opinion, my making reference to the following “bullet points” addressed by the Court of Appeals may be helpful in forcing the reader of this post to, well, read the Noojin opinion:
- The use of emails (and “email streaming”) as the sole means of communications – and the copying of every email for future use – between parents on matters affecting their children is now not only encouraged, but to the family law attorney, must be “standard legal advice” to his/her client(s) in every case. [For example, during their 3-day contempt hearing, their printed-out “email exchanges” became the Noojins’ primary evidentiary weapons of choice. As an example, the Noojin opinion stated, in pertinent parts: “(A)lthough the record includes a large volume of email exchanges between Mother and Father, a few particularly poignant exchanges are addressed below. … We recognize Father initially yielded to Children’s wishes and allowed for more flexibility in deciding when to visit with him. However, as the email exchanges demonstrate, Mother continued to refuse or thwart visitation efforts even after Father sought to enforce the agreement because weeks would pass without him seeing the children. The email exchanges directly contradict Mother’s testimony that she was unaware Father sought the visitation allotted in the order. … In emails exchanged between August 20 and 30, 2013 – after the second day of the three-day contempt hearing – Mother expressed her concern with Father’s request for dinner with the children; however, she stated she would ‘comply with the court orders and [Father’s] request. Nevertheless, in additional emails, she skirted visitation requests. …”.) ].
- This case further represented the absolute necessity for family law attorneys to be exceptionally careful with the drafting of the provisions of, and the specific words used in, the clients’ written final settlement agreements. [From Noojin: “The language used in a decree must be given its ordinary and commonly accepted meaning. Where an instrument evidences care in its preparation, it will be presumed its words were employed deliberately and with intention.” … “Despite Mother’s argument on appeal, as we read the plain language of the agreement, Father’s visitation rights were not contingent upon Children’s wishes or the family attending therapy.”].
- Was it possible that this case could be indicative of the Court of Appeals having established a policy defense of “forced visitation”? [In Noojin the opinion stated, in part: “In Nash, the mother would not force a child to visit his father after she would prepare the child for visitation, but the child would refuse to get in the car with the father. This court observed the child suffered severe physical and emotional problems as a result of the visits, the visitation problems were caused by the father’s conduct, and the mother took all reasonable steps to resolve the problems. (In Noojin) the record is devoid of evidence demonstrating Children suffered any psychological disorders or physical harm as a result of visiting Father or the visitation problems were caused by Father. … Rather, Mother did not require Children to visit with Father because Children did not want to and Mother disagreed with the notion of scheduling visitation. … Our jurisprudence has little case law addressing this issue – holding a custodial parent in contempt for his or her refusal to require minor children to visit the noncustodial parent against the children’s wishes – however, in the absence of psychological or physical harm, most jurisdictions would support finding the behavior Mother displayed was willful disobedience and constituted contempt.“).]
- This case restated the State’s policy against “parent-child estrangement” by referencing (and by inference, adopting) other states’ approaches on this issue. [In Noojin the opinion stated in part: “[In the absence of proof showing that visitation with the defendant would cause physical or mental harm to the children or a showing of some justification for preventing visitation, the plaintiff must do more than merely encourage the minor children to visit the defendant] … The above-cited approach of various jurisdictions is consistent with our state’s policy to ensure minor children of divorce are not estranged from the noncustodial parent. … The general rule is that minor children, notwithstanding the divorce, are entitled to the love and companionship of both parents, and the well-rounded development of a normal child demands an association with both parents. Therefore, we find the above-cited cases instructive, but limit our holding in this regard to the facts presented and do not suggest that in every situation in which a custodial parent fails to force a child to visit a noncustodial parent, such custodial parent should be held in contempt. A contempt finding is determined on a case-by-case basis.”].
- Did the case establish a “proactive obligation” on the part of the custodial parent to “administer consequences” against a child who refuses to visit with the noncustodial parent? [From Noojin: “…Furthermore, we find Mother’s action and her failure to administer any consequences for Children’s behavior toward Father estranged Children from Father, encouraged disparagement of Father, and injured Children’s opinion of Father in violation of the divorce order. … Moreover, Mother …did not foster ‘a feeling of affections’ between Children and Father as required by court order; instead, the evidence supports the family court finding Mother hampered the free and natural development of Children’s love and respect for Father.”]
And with that, I will leave it up to you to make your own “judgments” regarding my “2016 selection”…and I will wish each and every one of you who took the time to read through this post a wonderful, safe, and (of course) a very prosperous New Year.
Oh…and good luck out there.