Category Archives: Trial Strategies

Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

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Ashburn v. Rogers and SCDSS/CSD – The South Carolina 2017 Family Law Case Of The Year

Last  year I wanted to try and single out what I felt to be one of our South Carolina appellate courts’ published opinions which I believed to be of some significance for our State’s family court bench and bar and/or which, at least in my view, represented a unique use of our existing statutes, court rules, or Supreme Court orders (1) to achieve a successful outcome for that affected client, (2) to provide appellate court “clarity” to certain difficult and complex areas of family law, and/or (3) to perhaps add another, significant “arrow into the quiver” of the family court bar moving forward.

For 2016, I had selected the case of Noojin v. Noojin, which not only had a significantly interesting fact-pattern, but one which addressed in great detail a range of contempt of court-related and parental alienation-related issues; and which also provided our family court bar with a more defined “road map” on when and how to address these issues both with the client (in advance of trial) and at the trial of the case which involved these issues.

And with that brief background stated, I have selected as my “2017 South Carolina Family Law Case Of The Year” the case of Ashburn v. Rogers and SCDSS/CSD, S.C.Ct.App., Opinion No. 5505, filed August 2, 2017.

In Ashburn v. Rogers Beaufort attorney, Sharnaisha Naki Richardson-Bax, utilized and applied Rule 60(b)(5), SCRCP in a manner which ultimately opened the proverbial door for our appellate courts to revisit – and offer some clarity to – the legal doctrines of res judicata and collateral estoppel. [The Ashburn decision turned on the inequitable notion that once a putative father made an admission of paternity of a child who, it was subsequently determined, was not his child, then under these legal theories of res judicata and collateral estoppel, it was too late to challenge that admission.]

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 3 (Learning The Craft Of Practicing Law – From The Sledgehammer To The Scalpel)

Welcome back, my young colleague, and first answer this: when you stood inside the South Carolina Supreme Court on the day you were sworn in as an attorney, and when you then signed the formal “enrollment of attorneys” and received your certificate formally admitting you into the profession, did you read the certificate while still inside the Supreme Court building?  Have you ever read it?

Here’s how mine begins: “IT APPEARING unto us, That Barry Wayne Knobel has complied with the requirements of the Law of this State in respect to the admission of persons to practice as Attorneys in the Courts of this State, and is duly qualified to act as such….”

That was on November 3, 1973.  My certificate of admission was signed by the Chief Justice and the associate justices (all of whom have long since passed away); and I vividly remember that on that day I was wearing a black, pin-striped suit, white shirt and black tie with white polka-dots…and spit-shined shoes.  On that auspicious (at least for me) day I absolutely looked the part….but on that same day, and for very, very many days which followed that day, I most certainly did NOT have a clue as to where my legal “roads not taken” would eventually take me; and I didn’t know then whether my choice to become an attorney would become my lifelong “profession”, or my “career”, or my “craft”….or simply the way in which to make enough money to pay my monthly bills, including repaying my law school loans.

And on November 3, 1973, how could the Justices of the South Carolina Supreme Court, along with any of the other thousands of members of the South Carolina Bar Association possibly know that I was “duly qualified” to practice law along side them or in front of them, when I wasn’t at all sure that I was duly qualified (if truth be told – and as I write this – I’m still not so sure)?

Consequently, as we all did then and as brand new attorneys do now, I began practicing law with a sledgehammer.  Just slamming my way forward and throwing everything at the “most immediate problem at hand”.  I stretched out the Socratic Method like a huge rubber band – arguing my “legal points” based on what little tidbits I could glean from law books while blending those tidbits into my clients’ “versions of the truth”, all the while trying to sound and act like I knew what I was talking about…but while facing much more seasoned and polished attorneys who were constantly “schooling me” on the finer (and most often the correct) points of law and facts involved in the case.  And I had my share of those “seasoned attorneys’ tire tracks” running up and down my black pin-striped suit.

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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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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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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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Your Client’s Financial Declaration – The Most Important (And Often The Most Poorly Prepared) Document In Family Court Litigation

If you’ve practiced family law in South Carolina for any length of time and attended mandatory CLEs where one of the presenters was a South Carolina Court of Appeals judge, how many times have you heard that judge state (1) if the issue is related to equitable apportionment of the marital estate, then the family court judge’s order is required to have addressed in some form all of the “15 equitable apportionment factors” – or – (2) if the issue is related to alimony, then the family court judge’s order is required to have addressed in some form all of the “13 statutory alimony factors”?

And if you are the “prevailing attorney” and have been requested by your trial judge to prepare the proposed order, how would you explain to your client why the trial judge’s appealed order was “remanded” by an appellate court for (your?) failure to have expressly addressed these various, point-by-point “factors” in the order?

While remanding a case back to the family court can be costly to your client (if you’re continuing to charge a fee for this “scenario” which you may have created) and certainly time-consuming, a failure to have prepared and presented to your trial judge a client’s financial declaration which is accurate, truthful to the best knowledge of the client, thorough and thoroughly prepared (with annotations and footnotes, if necessary, or having an attached, detailed “marital assets addendum”) is a fatal error by the attorney, which can (and most often will) have a substantial effect on the financial issues decided by your trial judge.

And yet the financial declaration remains one of the most poorly prepared documents covering the entire spectrum of family court litigation.

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SEVERAL “SUGGESTIONS” TO THE YOUNG ATTORNEY FOR A LONG (AND HOPEFULLY SUCCESSFUL) LEGAL CAREER

Several months ago I had the pleasure and privilege of being asked to make a presentation to the Anderson County Young Lawyers Division, and I discussed with them the following “suggestions” and points which I had found useful over the years.  [I realize that the audience for this particular blog is the attorney practicing for less than 10 years, and that the more “seasoned” attorneys will “hit delete” very quickly…and I’m OK with that.]

1. Always, always, ALWAYS “deconstruct” your case by starting at the end of it and working back to the beginning.

2. At least once a week, go the South Carolina Judicial Department’s website – www.sccourts.org – and click on the “Video Portal” menu, and then go the “Supreme Court Archived Video” page and watch at least one case being argued before the Supreme Court (it will send chills up and down your spine, but you’ll learn more about the practice of law than any book or website or CLE can ever teach you).

3. Whether or not you think you’re smarter than an opposing attorney never matters…because it’s much more important that you develop a reputation among your peers as ALWAYS being prepared to “outwork” them on a case.

4. Your lifelong reputation among your peers is made within the first 10 years of your professional life.

5. It is (infinitely) more important for you to develop a reputation among your peers as being professionally considerate and ethical than for being a professional bully.

6. Always assume that the judge knows more about your case than you do … and, at the same time, always assume the judge knows nothing about your case.

7. If you practice family law, then memorize SCRFC, Rule 9(b) … and live by it.

8. Finally – always know that whenever judges meet anywhere – either at conferences or at lunch or in the hallways behind their courtrooms – they’re asking/talking/gossiping about YOU… and know that YOUR reputation and ability matter to them (more than you’ll ever know).

9. ALWAYS give your clients “the bad news – 100% of the time”. Since you can’t guarantee a “result” or “outcome” for your client, then it’s professionally dangerous on your part to “paint a rosy picture” about anything involved with your client’s case.

10. NEVER represent a family member or a friend in ANY contested case, in any court of law. And to insure that you remain professionally objective (so that you can do your job), never become your “client’s friend” during the litigation.

11. DRESS LIKE AN ATTORNEY. (For the men) never meet with your clients in your office – or at a mediation – wearing a golf shirt or casual clothes; (for the women) wear professional attire when meeting with your clients. I assure you that the “visual” of how you present yourself to your client is as important (to them) as the advice you’re giving them.

12. FINALLY – always remember that “this is the business we have chosen” , so NEVER take anything said to you by an opposing attorney personally…”it’s not personal Sonny, it’s strictly business” .

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Was Ray v. Ray A Herald For “Open Discovery” In The Family Courts?

How many family law attorneys reading this blog believe that it’s now a form of legal malpractice not to request an “open discovery” order (i.e., permission to use the discovery rules set forth in the South Carolina Rules of Civil Procedure) at the earliest possible time and in virtually every family court case?  And in what percentage of those cases where you engaged in “open discovery” did you find it to be significantly cost-effective to your client (in other words, by the sole and specific use of pretrial discovery, you were able to achieve a final, financial result for your client which exceeded that client’s costs in attorney’s fees and litigation expenses directly related to the additional time spent in engaging in such pretrial discovery)?

Although there are most always “unintended consequences” flowing from virtually every legislative act and court rule affecting family court processes, “open discovery” in our family courts has clearly resulted in increased litigation costs, more motions to compel, delayed mediations, delayed final hearings, motions to continue for lack of the production of documents, more depositions….on and on.

As you are most probably aware, the long-standing “discovery rule” in our family courts is brief and to the point.  Rule 25, South Carolina Rules of Family Court states:

“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.”]

In the practice of present-day family law in South Carolina I’m not aware of a single family court judge or family law attorney who use and rely solely upon Rule 25 to limit or constrict  the framework within which to navigate a domestic relations case.  I am very much aware, however, that a decade ago there were significant efforts by several family court judges to overhaul and expand Rule 25, all of which were “shot down in flames” by both the bench and bar.

And then along came the case of Ray v. Ray, 647 S.E.2d 237, 374 S.C. 79 (S.C., 2007).

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Practicing Family Law in the 21st Century – Series Post No. 1: South Carolina’s “365-Day Family Court Benchmark” – Tick, Tick, Tick

I would like to begin a series of posts which focus on how we might become better prepared to effectively practice family law in South Carolina in the 21st century (or at least through the rest of this decade), and I’m interested in focusing on practical ways in which you can use the existing “patchwork quilt” of family law statutes, appellate court opinions, court rules, and administrative orders to increase your chances of achieving a successful result for your clients, while also protecting your attorney-client relationship.

I’d like to begin by asserting there are (at least) three irrefutable “truths” associated with the practice of family law in South Carolina:

  • Policy has always been driven by the “politics of the moment” (which means that, especially in the area of family law and because our family courts are “courts of limited jurisdiction”, the enactment or creation of statutory policy is more often “reactive” than “contemplative”).
  • In the practice of family law, there are three distinct “tracks” in play in every domestic relations action filed in every county throughout the State: the “legal track”, the “track of the practical result”, and the “track of unintended consequences”.  And with rare exceptions (and there are exceptions), every new statute, family court rule, and administrative order always perfectly addresses – at the moment of its effective date – the “legal track” (e.g., the intended legal result of that specific act or action at that specific moment is “perfect”); however, rarely, if ever, do the “legal track”, the “track of the practical result” and the “track of unintended consequences” meld effectively together for any extended period of time.
  • A family law attorney can never control that single factor which always drives your case forward – the emotions or the emotional state of your client throughout the litigation.

Using that as our backdrop, let’s begin with an analysis of the “365-day Family Court Benchmark” which became effective on August 27, 2014 (with emphasis added):

  • “… all domestics relations and juvenile cases … shall be disposed of within 365 days of filing … “.
  • “Once a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial.”
  • “In the event no request for a final hearing is received by the Clerk of Court within (365 days from the date of filing) and there is no order by the Chief Administrative Judge extending the case, the Clerk of Court shall prepare an Order of Dismissal without prejudice and provide the order and file for review by the Chief Administrative Judge. If it is determined that dismissal is appropriate, then the Chief Administrative Judge shall sign the Order of Dismissal.  If a case is continued for any reason past 365 days (from the date of filing), the Order of Continuance must include a time and date for rescheduling the case.
  • ” … in the event an action is dismissed without prejudice pursuant to this Administrative Order, any existing orders in the affected case file which were not final (note: meaning every pendente lite order) will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.

This 2014 Administrative Order superseded the May 9, 2006 “Family Court Benchmark” which simply stated:  ” … all domestic relations and juvenile cases in South Carolina … shall be disposed of within 365 days of their filing.  … within each county, the Chief Administrative Judge for Family Court shall direct and oversee the monitoring of all cases which are older than 365 days, and for which no final hearing has been requested.  The Clerk of Court for each county shall provide all necessary reports and information as requested by the Chief Administrative Judge to assist in the timely disposition of cases as set by this Order.”

If the intent of the 2014 Family Court Benchmark is to place pressures on the family law attorneys to bring about a final resolution of litigation within this finite period of time, and if it is believed that a full calendar year is more than enough time to accomplish this purpose, then the “legal effect” of this Administrative Order is perfect.  The clock starts “ticking” from the moment you file your complaint in your Clerk of Court’s office, and you have 365 days with no exceptions, reasons, or excuses to file your request for your final hearing in your client’s case; and, even if your Chief Administrative Judge gives you a “get out of jail free” pass, and extends your case “for any reason”, that order of continuance is required to “include a time and date rescheduling the case” (for a final hearing).

The “practical effects” and the “effects of unintended consequences” of this new Benchmark are more far-reaching both for you and certainly for your clients (I’ll give you just four examples, obviously assuming that you would have not yet filed your request for a final hearing):

  • If you’re now going to engage in “open discovery”, then you’ll need to fully complete your discovery well prior to your trial date (forget about filing “motions to compel” at the last minute because that motion may not be scheduled for weeks or longer, and the clock keeps ticking).
  • If you’ve “won too big at your temporary hearing”, and your client has a terrific pendente lite order in effect – e.g., sole custody, substantial child support, alimony, the other spouse is saddled with paying all the monthly expenses, etc. – you can no longer “slow play” your case beyond the 365-day deadline, because ” … all existing orders which were not final will be considered null and void …” [also see: Terry v. Terry, 400 S.C. 453, 734 S.Ed2d 646 (2012) ].  Conversely, be careful about the opposing attorney who has “lost too big at the temporary hearing”, because as you approach the 365-day deadline, that attorney (who wants all of those pendente lite orders to go away) is going to do everything possible to lull you into delaying your filing a request for a final hearing.
  • In a mandatory mediation county, in the event of an impasse in your mediation, your mediators are now required, at the time they file their mediation report(s) with the clerk’s office, to indicate the amount of “trial time” necessary to complete your case.  Consequently, you may have no choice but to accelerate the date to mediate your case even though the case and the parties are “not ready” for mediation.  Furthermore, you’ll most probably have to guess as to the amount of time you’ll need to request for your final hearing.  And the clock keeps ticking.
  • As you approach your 365-day deadline without having requested your final hearing, you’re going to have to be careful about filing subsequent motions for temporary relief requesting a modification of an existing temporary order, because you may not have enough time to do so.

Recommendations and suggestions:

1.  In those counties where you routinely practice family law and file your cases, find out from that county’s clerk of court whether the clerk can implement an emailed “early warning alert” once a case hits, for example, 270 days from its file date.  In various counties the clerks have provided this service in the past, and I can find nothing in the new Family Court Benchmark which prohibits that activity. This could also apply to those cases filed by self-represented litigants (the clerks can, or most already do, require an email address from these litigants).

2.  To protect yourself professionally, attach a copy of this Administrative Order to your detailed attorney-client retainer agreement, and make certain that your client initials this attachment.  Put a provision in your retainer agreement which acknowledges (a) that you have informed your client of the critical importance of working within this 365-day timeline, and the legal consequences in the event the client’s case is dismissed pursuant to this Administrative Order, (b) that your client agrees to fully and timely cooperate with all of your requests for information, documents, and materials, and (c) that your client will at all times keep you informed as to his/her residence address, mailing address, current email address and current cellphone or telephone number.

3.  If you have not already been using some type of computer-based or internet-based “case tracking” system, then you might want to create one within your office, where you will immediately enter the filing (commencement) date of every new family court case, with a “notification” automatically sent you on the 270th day of filing.

4.  This Administrative Order expressly states that “[I]f it is determined that dismissal is appropriate … “.  Perhaps your county or circuit has a family court liaison committee which could meet concurrently with your current Chief Administrative Judge and your clerk of court in an effort to put together some type of protocol that will provide clarity to your family court bar as to how, and under what circumstances, your Chief Administrative Judge would “determine that dismissal (or a continuance) is appropriate”.

5.  As strange as this sounds – and as counter-intuitive as this may seem to a family law attorney – as soon as you’ve completed your mediation (you can’t wait until the bitter end to mediate your case), or even as soon as you’ve completed your first temporary hearing, send in your request for a final hearing.

6.  And, in tandem with No. 5, if you practice law in a county which has a court coordinator who then sends you an email to inform you that your filed final hearing request is premature because the case has not yet been mediated, then at the very least you’ll have written confirmation that you made this filing (if that sounds like a stretch, so what…and it may show just enough due diligence on your part to convince your Chief Administrative Judge that you made a good faith effort to comply with this Administrative Order).

In the months ahead, as this 365-Day Family Court Benchmark is put into practice, then I’ll want to revisit it and discuss how this particular Administrative Order has affected your family law practice, if at all.  However, I’m going to stop at this point because this seems to be a good stopping point [and I also want you to know that future posts in this series will be much more succinct and more tightly focused on one particular family law issue].