N.B. The holding of Floyd v. Morganthat it took a higher burden of proof to modify support agreement was subsequently overruled in the case of Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)
With today’s advance sheet, the Supreme Court’s opinion in Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009) becomes final, as the Supreme Court rejected Ms. Floyd’s motion for rehearing on August 20, 2009. Both past and future child support agreement are now going to be much harder to modify. It’s likely that, using Floyd’s rationale, alimony agreements are now going to be harder to modify too. It’s possible that, again using Floyd’s rationale, child custody and visitation agreements will even become harder to modify. Basically until the Supreme Court orders otherwise, it’s safest to assume that any agreement approved by the family court that is subject to subsequent modification is going to be subject to very close scrutiny and a very high burden before the family court modifies it.
As noted in a previous blog, I thought Floyd v. Morgan was an extremely misguided decision. The past month I have spent considerable time thinking about how to handle agreements in light of this decision and the best idea I have come up with is: 1) make sure to list within the agreement every conceivable thing that the parties agree is a substantial change of circumstance giving rise to a subsequent modification; 2) make sure this list is described as partial and not an exclusive listing of all possible changes of circumstance; 3) hope (pray?) that you didn’t forget some obvious circumstance that your client might have considered would allow support to be modified.
One thought on A new day in child support agreements
Your previous comments about Floyd and your current comments are insightful. I agree with all of them. I, too, believe this opinion was misguided and will not only cause incredible problems for our clients with regard to past agreements that did not specifically address reasons to modify child support but also create huge problems for our Family Court Trial judges. This ruling essentially takes away any ability for them to modify child support if there is any remote chance parties should anticipate fluctations in child care or other costs. (I think the Court of Appeals dissent by Judge Short was the correct opinion and wish the Supreme Court had followed it.) The Eames case causes the same concerns and havoc for alimony modification cases.
My hope is that a group of family law attorneys and possibly some family court judges will work together to draft alimony and child support legislation that clearly sets forth when such payments are modifiable up or down. As another of your blogs notes, it is rare for our Appellate Courts to reverse themselves, and when the Supreme Court denied Ms. Floyd’s request for a rehearing, they denied themselves a great opportunity to fix a ruling that will end up creating many more problems than it fixed.
Thanks for addressing this issue and opening a dialogue for other SC family law attorneys to participate in. My hope is that your blog and others’ interests in this subject will inspire a group to work with legislators to fix this issue through the issuance of new statutes.
Greg:
Your previous comments about Floyd and your current comments are insightful. I agree with all of them. I, too, believe this opinion was misguided and will not only cause incredible problems for our clients with regard to past agreements that did not specifically address reasons to modify child support but also create huge problems for our Family Court Trial judges. This ruling essentially takes away any ability for them to modify child support if there is any remote chance parties should anticipate fluctations in child care or other costs. (I think the Court of Appeals dissent by Judge Short was the correct opinion and wish the Supreme Court had followed it.) The Eames case causes the same concerns and havoc for alimony modification cases.
My hope is that a group of family law attorneys and possibly some family court judges will work together to draft alimony and child support legislation that clearly sets forth when such payments are modifiable up or down. As another of your blogs notes, it is rare for our Appellate Courts to reverse themselves, and when the Supreme Court denied Ms. Floyd’s request for a rehearing, they denied themselves a great opportunity to fix a ruling that will end up creating many more problems than it fixed.
Thanks for addressing this issue and opening a dialogue for other SC family law attorneys to participate in. My hope is that your blog and others’ interests in this subject will inspire a group to work with legislators to fix this issue through the issuance of new statutes.
Melissa F. Brown
http://www.scdivorcelaw.com
melissa@melissa-brown.com