Two Unusual Strategies for Encouraging the Opposing Party to Settle (October 2002)

Material for National Business Institute Lecture, October 2002

Note: On May 9, 2006, the South Carolina Supreme Court issued an administrative order requiring all family court actions to be set for trial or pre-trial within 365 days of filing, replacing the previous June 5, 1992 Administrative Order that simply struck cases from the active roster if not resolved within 270 days.  If that year elapses and no final order has issued, no trial has been scheduled, and no pre-trial has been requested, the court clerk will send out a notice indicating that the action is subject to dismissal if no pre-trial is requested or final hearing set within thirty days.  If no action is then taken in this thirty-day period the whole lawsuit is subject to administrative dismissal.  Because of this, the second strategy below is no longer applicable.

Ninety to ninety-five percent of all family court cases settle without the necessity of trial. The reason cases settle is that the risk and expense of going to trial outweigh any expected gains from going to trial (as opposed to taking the settlement offer). Thus, anything that increases the risk of the opposing party going to trial increases an attorney’s ability to achieve a successful settlement for the client. Here are two rarely used, but often effective, strategies for increasing the other party’s risk.

DESERTION DIVORCE

Since the 1979 amendment to the South Carolina Constitution reduced the time period of separation for a no-fault divorce from three years to one year, the fault ground of one year’s desertion has fallen into increasing disuse.  See S.C. Const. Art. X, § 3.

Since the waiting period for separation is no greater than the waiting period for desertion, why go through all the trouble of proving fault? Because, under a very particular circumstance, the use of desertion as a ground for divorce can create a strategic advantage on the issue of alimony.

That circumstance is in what I call “ditch the spouse; keep the wallet” divorces. The facts of such cases are as follows: The supported spouse vacates the marital home without good cause and files a separate maintenance action. At the temporary hearing, the supported spouse is awarded temporary alimony. During the litigation process it becomes clear that the supported spouse did not have a good reason for vacating the marital home and the supporting spouse is willing to take the supported spouse back. If one year goes by from the date of separation without the matter reaching a final hearing, the supporting spouse now has the ability to seek a divorce on the ground of desertion. At this point the supporting spouse can file a motion to supplement his or her counterclaim based on the year’s desertion. See Rule 15(d), SCRCP. Having desertion as a possible ground for divorce at trial highlights the issue of the supported spouse’s marital fault, which is one of the alimony factors. S.C. Code Ann. § 20-3-10 (C)(10).

It is clear that a deserting spouse can be awarded alimony. See e.g., Gilfillin v. Gilfillin, 344 S.C. 407, 544 S.E.2d 829, 830 (2001) (husband granted desertion divorce but still ordered to pay $3,200.00 per month in alimony). However it is equally clear that desertion can be a factor in alimony. Gilfillin v. Gilfillin, 334 S.C. 213, 512 S.E.2d 534, 538-39 (Ct. App. 1999), rev’d on other grounds, 344 S.C. 407, 544 S.E.2d 829, 830 (2001) (family court properly considered wife’s desertion in determining alimony amount). The risk of reduced or no alimony encourages settlement.

In determining how great a weight to place on the issue of desertion in the award of alimony, the court will look at whether the act of abandonment materially contributed to the disruption of the marital relationship or was merely evidence of that disruption. McKnight v. McKnight, 283 S.C. 540, 324 S.E.2d 91, 93 (Ct. App. 1984) (where evidence did not show which of the parties, if either, engaged in substantial misconduct which materially contributed to the disruption of the marital relationship, and where wife showed long history of marital unhappiness, her abandonment was entitled to little weight in determining alimony). In contrast, in Brown v. Brown, 239 S.C. 444, 123 S.E.2d 772, 774 (1962), a deserting wife was denied alimony because the court found that her desertion and behavior prior to the desertion were the cause of the marital breakup.

The essentials of desertion are (1) cessation from cohabitation, (2) intent on the part of the absenting party not to resume it, (3) absence of the opposite party’s consent, and (4) absence of justification. Oswald v Oswald, 230 S.C. 299, 95 S.E.2d 493 (1956). Machado v Machado, 220 S.C. 90, 66 S.E.2d 629 (1951). In using the desertion divorce ground as a method of reducing or foreclosing alimony, the practitioner should attempt to show how these four factors are applicable to the case and how the deserting spouse’s absence of justification in the desertion caused the disruption of the marital relationship. While some practitioners think of desertion as requiring a refusal to provide financial support for a spouse, this is not one of the desertion requirements. See e.g., Gilfillin, supra (supporting spouse granted desertion divorce).

In pleading desertion as a ground for divorce, the supporting spouse signals to the supported spouse and the court his or her intent to make the supported spouse’s misbehavior the focus of the trial. Doing so can prompt reconciliation or a greater willingness on the part of the supported spouse to settle the alimony issue on terms favorable to the supporting spouse. Further in having to defend a desertion counterclaim at trial, the supported spouse’s position on alimony is undermined by the moral inconsistency of seeking continuing support from a loving spouse who has been abandoned without just cause. Thus, even though a spouse can obtain a divorce upon the same facts and in an easier fashion by pleading one year’s separation, there can be a strategic advantage to also pleading desertion.

MOTIONS TO DISMISS FOR FAILURE TO PROSECUTE

Due to peculiarities in the Family Court procedural rules, Defendants in custody and support modification cases can often find themselves in litigation limbo. A motion to dismiss for failure to prosecute can often be an effective strategy to end such cases.

The circumstance in which such a motion is useful is when a Plaintiff brings a modification case but does not get the requested relief at the temporary hearing and where it does not appear the Plaintiff will prevail at the merits hearing. Oftentimes, such a case can then drag on for a couple of years. Even after a case is stricken 270 days after filing pursuant to the authority of the Supreme Court’s June 5, 1992 administrative order, it is still subject to being restored for good cause shown.

From the point where it is clear that the Plaintiff is unlikely to prevail on the merits, little good can happen to the Defendant. If the Defendant pushes the case to trial, he or she will incur substantial attorneys fees for the privilege of defending the matter and stands a chance of losing custody or support. Thus, unless the Defendant makes concessions, there is no incentive for the Plaintiff to settle the case. Yet if the Defendant does nothing, the case hangs over him or her like the Sword of Damocles, ready to lop the Defendant’s head off if he or she commits a misstep or if temporary circumstances create a favorable situation for the Plaintiff.

Further, Defendant’s counsel cannot close the file because the case is subject to a motion to restore at the Plaintiff’s whim. I have been involved in a case in which the Plaintiff sought to restore a custody case for trial over 3 1/2 years after the last temporary hearing and almost 4 years after filing. Because there is no apparent risk to the Plaintiff in keeping the case open and a great deal of risk to the Defendant in the case remaining open, there was no incentive for the Plaintiff to take a reasonable position and the case did not settle.

In such circumstances, a motion to dismiss for failure to prosecute, brought pursuant to the authority of Rule 41(b), SCRCP, can be an effective tool for putting the Plaintiff’s position at risk. By potentially ending the case with finality, without the Defendant having to prevail on the merits and with the Plaintiff potentially at risk for Defendant’s attorney’s fees, the Defendant can put pressure on the Plaintiff to agree to a dismissal or agree to a reasonable settlement without having to make unreasonable concessions to end the case. South Carolina Appellate Court cases have discussed the dismissal of cases due to failure to prosecute. See Davis v. Lunceford, 279 S.C. 503, 309 S.E.2d 791 (Ct. App. 1983) (dismissing case for failure to make timely service of summons and complaint); McMillan v. Midlands Human Resources, 305 S.C. 532, 409 S.E.2d 443 (Ct. App. 1991) (dismissing workers compensation case in which three years had gone by since filing and case and, due to counsel for worker’s requests for continuances, case was still not set for hearing). Nothing in the civil or family court rules makes Rule 41(b), SCRCP, inapplicable to the family court.

By bringing such a motion, the Plaintiff no longer has the luxury of waiting for a ripe moment to restore the case for trial. Further the Plaintiff now risks having his or her case dismissed and paying Defendant’s attorney’s fees without the Defendant having to actually defend the merits of the case. Without the motion to dismiss, the Plaintiff’s demand of concessions as a condition of settlement had minimal risk; with the motion the Plaintiff stands to lose any leverage he or she may have and pay Defendant’s attorney’s fees too.

Filing a motion to dismiss for failure to prosecute frequently results in the Plaintiff either agreeing to dismiss the case with finality or agreeing to a settlement that does not require unjustified concessions on the Defendant’s part.

CONCLUSION

While infrequently used, the above litigation strategies have their uses for cases in which a deserting spouse or a Plaintiff with a marginal case is taking an unreasonable settlement position. By increasing the risk of such parties going to trial, one increases the chance of ending the case on terms that make one’s client happy.