Monthly Archives: December 2016

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).

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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 →