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.
Hmmm…let me think. Oh, it appears to me that some of you South Carolina family law scholars want to know something more about Panhorst v. Panhorst, 301 S.C. 100, 390 S.E.2d 376 (Ct.App.1990). If you’ve read the case – and I’m certain you have if you practice family law in this State – and the beautifully-crafted opinion of then South Carolina Court of Appeals Judge Randell T. Bell – you will find that it is as tightly packed with more impactful law affecting the family court bench and bar as only a relatively small number of other appellate court opinions which have followed. But the following two paragraphs are the beating heart of this opinion, and continue to resonate to this day:
“Marital property is that real and personal property acquired by the spouses during the marriage which is owned by them at the date of filing of marital litigation. Section 20-7-473, Code of Laws of South Carolina, 1976, as amended. The money in dispute here was not marital property because, at the time the action was filed, it no longer belonged [301 S.C. 105] to either of the Panhorsts as the statute requires. Thus, it was not subject to equitable distribution.
The statute embodies the Legislature’s decision that the marital estate must be identified as of a fixed date. Given the vicissitudes of life, the parties’ fortunes will change over the years of a marriage. Often the marital estate may have enjoyed a greater value in the past than it does at the dissolution of the marriage. It may be affected by changes in the incomes and earning capacities of the spouses, their spending habits, their savings and investments, and a host of other factors. By requiring the estate to be identified as of the date marital litigation is filed, the Legislature has elected to foreclose the spouses from litigating every expenditure or transfer of property during the marriage. One spouse or the other may have spent marital funds foolishly or selfishly or may have invested them unprofitably. The statute wisely prevents the other spouse from resurrecting these transactions at the end of the marriage to gain an advantage in the equitable distribution. Were it to do otherwise, human greed and vindictiveness would transform the courts into “auditing agencies for every marriage that falters.” In re Marriage of Getautas, 189 Ill.App.3d 148, 151, 136 Ill.Dec. 509, 513, 544 N.E.2d 1284, 1288 (1989).”
Now, fast forward 25 years, to Srivastava v. Srivastava, S.C.Ct.App.,Opinion No. 5287 (refiled on February 25, 2015), and we continue to see Panhorst cited in support of some appellate court proposition [“The family court may alter the equitable distribution of marital property based on economic misconduct if the allegedly at-fault party engaged in “willful misconduct, bad faith, intentional dissipation of marital assets, or the like.” McDavid v. McDavid, 333 S.C. 490, 496, 511 S.E.2d 365, 368 (1999); cf. Panhorst v. Panhorst, 301 S.C. 100, 104-06, 390 S.E.2d 376, 378-79 (Ct. App. 1990) (finding no fraudulent intent on the husband’s part in giving his mother a total of $25,000 to $30,000 over the course of twenty years, even without the wife’s knowledge, because there was no evidence to show that the husband made the gifts with the intent to deprive the wife of her share of the marital estate)”].
In my mediation practice to this very day I probably use (or refer to) Panhorst at least several times a month…and yet, while the frequency of my use of Panhorst far exceeds the number of times I’ve told my tale of “The Cheshire Cat”, it is, without question, “The Cheshire Cat” who shall hold my interest and my imagine far more closely both now and in the years to come.