2020 was an interesting year to be a family law attorney. With the courts mostly closed in early spring, I mainly stayed busy with appellate work while many of my similarly experienced colleagues suffered. However once the courts began reopening–remotely for the most part, and about time the courts started using technology to increase the efficiency of non-testimonial hearings–most attorneys with established family law practices couldn’t keep up with the volume of work that came in. In a year in which so many suffered, family law attorneys (most ironically) did pretty well.
The appellate courts managed to stay busy–although they too experimented with remote oral argument. 2020 saw eleven published family law opinions (not counting a probate appeal from James Brown’s estate that clarified the law on void versus voidable marriages). The distribution of cases was odd. The Supreme Court said everything it had to say on family law in two May 13th opinions while the Court of Appeals remained silent until July 1st.
Among the interesting trends in these decisions: more clarity on Rule 60 motions (Landry, Sanders), which, at least in published opinions are causing frequent reversals; third-party custody disputes (Alukonis; Turner); and the award of attorney’s fees and costs (Couch). Two of these opinions, Swicegood and Clark, I believe the appellate courts botched (two of the five justices agree with me on Clark).
The two most significant cases were Alukonis and Couch. Alukonis was the first published opinion to apply the four factors from the 1989 case of Moore v. Moore to keep custody with a third-party despite agreeing that the custodial parent is fit. A decade ago I undertook an analysis of the Moore cases and was shocked to discover that a finding of parental fitness or lack thereof was outcome determinative in the appellate courts. Even when the appellate courts reversed the family courts (which they frequently did) they weren’t basing it on a different analysis of these factors but simply reversing the family court’s fitness determination. Balancing the rights of biological parents to raise their children and the rights of these children to have stable caregiving has inherent tensions. Too often (I believe) the courts have erred on the side of biological parents. Alukonis and Turner may see a trend towards giving greater deference to children’s stability.
For family law attorneys who handle big-dollar custody and divorce cases, Couch may be most consequential. While the appellate courts have sometimes approved fee awards approaching high five figures and/or close to 100% of the obligor’s annual income, Couch blows past these ceilings. Mr. Couch was ordered to pay over $250,000 in fees and costs representing 2 ½ times his annual income–and the Court of Appeals affirmed this. The case cried out for certiorari (not because it was incorrectly decided but because it blows past prior limits on fees) but Mr. Couch didn’t even seek rehearing in the Court of Appeals. Until and unless the Supreme Court hit the breaks on fee awards, Couch remains good authority for big fee awards in family court.
