Family Law

August - October 2014


Substantial compliance cannot cure the failure to comply with relevant requirements for the formal execution of a consent to adopt agreement when the defects in the execution are material and egregious.
Brown v. Baby Girl Harper, Op. No. 27448 (S.C. Sup. Ct. filed September 29, 2014) (Shearouse Adv. Sh. No. 39 at 12).

Removal Actions
S.C. Code Section 63-7-1660(E) mandates a finding of abuse or neglect before a child can be retained in foster care. Failure to seek a finding of abuse or neglect in a removal action “is in clear contravention of the removal statutes and could violate the fundamental right parents have to raise their children.”
SCDSS v. Massey, Op. No. 5269 (S.C. Ct. App. filed September 3, 2014) (Shearouse Adv. Sh. No. 36 at 26).

June - September 2013

Putative spouse doctrine
The putative spouse doctrine is not recognized in this state as it is contrary to South Carolina’s statutory law and marital jurisprudence.
Hill v. Bell, Op. No. 27308 (S.C. Sup. Ct. filed August 28, 2013) (Shearouse Adv. Sh. No. 38 at 109).

Abuse and neglect
The child abuse and neglect provisions of S.C. Code Section 63-7-20 do not apply where there is no evidence a mother knew or should have known she was pregnant at the time of the conduct upon which the alleged abuse and/or neglect was based.
SCDSS v. Jennifer M., Op. No. 5147 (S.C. Ct. App. filed June 26, 2013) (Shearouse Adv. Sh. No. 29 at 46).

Feb. - April 2013

Survivor’s benefit coverage
The federal law governing military and civil service retirement plans does not deprive a family court of jurisdiction to order a divorcing party to maintain survivor’s benefit coverage for his/her former spouse.
Barber v. Barber, No. 5096 (S.C. Ct. App., March 6, 2013) (Shearouse Adv. Sh. No. 11).

While the trust corpus is not marital property, distributions from the trust can be a marital asset and subject to equitable division.
Wilburn v. Wilburn, No. 27222 (S.C. Sup. Ct., Feb. 20, 2013) (Shearouse Adv. Sh. No. 8).

Oct. - Dec. 2012

For purposes of calculating alimony, the family court does not have to pierce the corporate veil before it may impute the income of a company to one spouse.
King v. King, No. 5064 (S.C. Ct. App., Dec. 12, 2012) (Shearouse Adv. Sh. No. 45).

Temporary order
A notice of appeal from a temporary order does not, standing alone, operate to stay the effect or enforcement of the order. Perceived errors in family court temporary orders are to be redressed at the final hearing, and any such challenge must be placed on the record at the commencement of that hearing.
Terry v. Terry, No. 27196 (S.C. Sup. Ct., Nov. 21, 212) (Shearouse Adv. Sh. No. 42).

July - Oct. 2012

Changes in circumstances must be unanticipated and substantial or material to justify modification or termination of an alimony award.
Holmes v. Holmes, No. 5023 (S.C. Ct. App., Aug. 15, 2012) (Shearouse Adv. Sh. No. 28)

Attorney’s fees for GAL
Pursuant to S.C. Code Ann. Section 63-3-530, in abuse and neglect cases, the GAL program is responsible for paying the attorney fees for volunteer GALs.
S.C. Department of Social Services v. Mary C., No. 4891 (S.C. Ct. App., Sept. 12, 2012) (Shearouse Adv. Sh. No. 32)

Child support
When calculating net rental income for child support purposes, the court must deduct ordinary and necessary expenses of the rental properties.
DiMarco v. DiMarco, No. 5024 (S.C. Ct. App., Aug. 15, 2012) (Shearouse Adv. Sh. No. 28)

The Indian Child Welfare Act applies and confers conclusive custodial preference to the Indian parent. To terminate their parental rights under the federal standard, the Court must either obtain the parent’s consent or find beyond a reasonable doubt that custody by the parent would result in serious emotional or physical harm to the child.
Adoptive Couple v. Cherokee Nation, No. 27148 (S.C. Sup. Ct., Aug. 1, 2012) (Shearouse Adv. Sh. No. 26)

May - June 2012

The preponderance of the evidence must support any awards pursuant to a divorce, whether periodic alimony or a lump sum.
Way v. Way, No. 4968 (S.C. Ct. App., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Breach of promise to marry
South Carolina has not abolished the claim of breach of promise to marry.
Campbell v. Robinson, No. 4969 (S.C. Ct. App., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Broken engagements
In determining ownership of an engagement ring following a broken engagement, fault has no place in determining ownership. Gift law dictates.
Campbell v. Robinson, No. 4969 (S.C. Ct. App., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Child support payments
It is improper for the family court to require child support payments through the clerk of court when the court also concluded that payments should be paid directly to a party, as that was the method of payment previously being made.
Buist v. Buist, No. 4982 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Equitable division of property
It is improper for the court to assess the fair market value of the assets and debts of the parties’ marital property without identifying all of the marital property and determining the direct and indirect contributions of the parties to the acquisition of the marital property.
Buist v. Buist, No. 4982 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Restraining orders
Restraining orders may be issued prohibiting contact between a mother’s boyfriend and her minor daughter until the daughter reaches the age of 18 when the boyfriend is a convicted sex offender who was convicted for lewd act upon a minor.
Argabright v. Argabright, No. 27136 (S.C. Sup. Ct. June 20, 2012) (Shearouse Adv. Sh. No. 21)

March - May 2012

Determination of income for the purposes of alimony should include Social Security benefits for which a party is eligible, regardless of whether the benefits have been applied for.
Crossland v. Crossland, No. 4949 (S.C. Ct. App., Mar. 7, 2012) (Shearouse Adv. Sh. No. 9)

Annuity funds

An annuity fund is transmuted into marital property if joint accounts with the intention of providing savings for both spouses are used to fund the annuity fund.
Crossland v. Crossland, No. 4949 (S.C. Ct. App., Mar. 7, 2012) (Shearouse Adv. Sh. No. 9)

College expenses
Ordering a non-custodial parent to pay college expenses does not violate the Equal Protection Clause.
McLeod v. Starnes, No. 27100 (S.C. Sup. Ct., Mar. 7, 2012) (Shearouse Adv. Sh. No. 9)

Termination of parental rights
Under the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act, if another state’s courts heard the initial proceedings and have not declined to exercise their jurisdiction in the current proceedings or communicated with the S.C. courts to determine if South Carolina is a more convenient forum, that state has exclusive jurisdiction over the Termination of Parental Rights proceeding.
Matthew G. v. Anthony H., No. 4955 (S.C. Ct. App., Mar. 16, 2012) (Shearouse Adv. Sh. No. 11)

Jan. - March 2012

It is an abuse of discretion for a family court to focus only on the age of a husband when considering husband’s request to reduce his alimony. The court should consider all relevant evidence and determine whether there has been a substantial or material, unanticipated change in circumstances warranting a reduction in the husband’s alimony obligation.
Fuller v. Fuller, No. 4931 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3)

Failure to appeal a support order does not bar a party from later seeking relief when the party does not understand the order to aggrieve him at the time it is issued.
Mullarkey v. Mullarkey, No. 4936 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3)

Attorney’s fees
The court may consider beneficial results to a party in determining the amount of attorney’s fees to award.
Chisholm v. Chisholm, No. 27092 (S.C. Sup. Ct., Feb. 1, 2012) (Shearouse Adv. Sh. No. 4) 

Division of benefits
It is error for a court to award equitable division of benefits, such as retirement benefits, yet to be earned by a spouse when the court issues its support order.
Mullarkey v. Mullarkey, No. 4936 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3)

Supplemental orders
A party may still be entitled to a supplemental order clarifying a support order, despite not being entitled to that relief under SCRCP Rule 60(b)(5), which is available only in cases of fraud upon the court or rare, special, exceptional or unusual circumstances.
Mullarkey v. Mullarkey, No. 4936 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3) 

Termination of parental rights
A proceeding for termination of parental rights is inappropriate when a parent has fulfilled the statutory requirement for regaining custody of a child and the preponderance of the evidence supports the child returning to the parent’s home.
SCDSS v. Mother and Father, No. 4922 (S.C. Ct. App., Dec. 16, 2011) (Shearouse Adv. Sh. No. 45)

Oct. 2011 - Jan. 2012

Rule 17(a), SCRFC, vests the family court with discretion to determine whether to allow a non-answering defendant to raise the issue of alimony. The family court must consider whether a party should be allowed to raise the issue of alimony despite the party’s failure to answer the complaint. 
Roesler v. Roesler, No. 4906 (S.C. Ct. App., Nov. 9, 2011) (Shearouse Adv. Sh. No. 40).

Child Preference 
Section 63-15-30 of the S.C. Code requires the family court to consider the child's reasonable preference for custody, but adds conditions for the court to consider in making its determination including age, experience and other attendant circumstances. 
Sheila R. v. David R., No. 4900 (S.C. Ct. App., Nov. 2, 2011) (Shearouse Adv. Sh. No. 39). 

The initial determination of custody between unmarried parents is measured by the totality of the circumstances, and a change in circumstance is only required to be demonstrated subsequent to the issuance of a court order. A parent's personal, moral behavior, while a proper consideration in custody cases, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. In this case, the mother's abortion had no direct or indirect effect on the child and therefore was not relevant to the custody determination. 
Purser v. Owens, No. 4898 (S.C. Ct. App., Oct. 26, 2011) (Shearouse Adv. Sh. No. 38). 

Marital asset valuation
The Court formally adopted "active" and "passive" appreciation or depreciation of the marital assets when determining the proper date of valuation. Passive appreciation refers to enhancement of the value of the property due solely to inflation, changing economic conditions or market forces or other such circumstances beyond the control of either spouse. Active appreciation, on the other hand, refers to financial or managerial contributions of one of the spouses. Active appreciation or depreciation should be valued at the filing date, and passive appreciation should be valued at a post-filing date.
Burch v. Burch, No. 27060 (S.C. Sup. Ct., Oct. 31, 2011) (Shearouse Adv. Sh. No. 38).

Termination of parental rights
Where there is substantial evidence that much of the delay is attributable to the acts of others, a parent's rights should not be terminated based solely on the fact that the child has spent greater than 15 months in foster care.
Charleston Cnty. DSS v. Marccuci, No. 27049 (S.C. Sup. Ct., Oct. 3, 2011) (Shearouse Adv. Sh. No. 35).

July - Oct. 2011 

A family court may not award retroactive alimony on its own initiative more than 10 days after the final decree of divorce.
Wannamaker v. Wannamaker, No. 4848 (S.C. Ct. App., Aug. 11, 2011) (Shearouse Adv. Sh. No. 27).

Attorney fees
The family court has the authority to assess attorney's fees against parties subject to its jurisdiction pursuant to Section 63-3-530(38) of the S.C. Code. However, the General Assembly did not intend for parties in abuse and neglect proceedings to pay legal counsel's fees for representation of volunteer guardians ad litem.
S.C. Dep’t of Soc. Servs. v. Mary C., No. 4891 (S.C. Ct. App., Sept. 21, 2011) (Shearouse Adv. Sh. No. 33).

The Latimer factors should be applied in a relocation case in which a parent who has custody seeks to move with the child.
McComb v. Conard, No. 4877 (S.C. Ct. App., Aug. 24, 2011) (Shearouse Adv. Sh. No. 29).

An action for separate maintenance and support cannot be pursued when the parties are still living together.
Theisen v. Theisen, No. 27041 (S.C. Sup. Ct., Sept. 19, 2011) (Shearouse Adv. Sh. No. 32).