A couple of interesting things are happening in yesterday’s Court of Appeals opinion in Bodkin v. Bodkin, 388 S.C. 203, 694 S.E.2d 230 (2010), which, with one small modification, affirms the decision of the family court on disputes over the grounds for divorce, alimony, property division and attorney’s fees.
To me the most interesting aspect of the opinion is how it analyzes husband’s credibility. As Bodkin notes, and dozens of other South Carolina appellate opinions note, on appeal the family court’s credibility determinations are entitled to great deference. Yet, to my knowledge, lower court judges are given no formal training on determining credibility.
One of my common tests for credibility when analyzing a case is whether a party’s actions followed logically from his or her allegations. For example, a woman who claims her husband terrorized her and wouldn’t let her phone for help or leave the house strikes me as credible if she calls the police as soon as her husband leaves and strikes me as much less credible if she simply does nothing once her husband is gone. My experience is that family court judges are somewhat random on accepting this logic. For example, this is a judge’s colloquy in rejecting this very defense in a domestic abuse trial:
I want to respond to one other thing that always gets my attention when people attempt to argue that this couldn’t have happened because it doesn’t make sense. I’ve been on the bench for over 24 years, there is nothing, I assure you, that somebody somewhere won’t do. To say it could not have happened because it doesn’t sound like a reasonable thing to do, really doesn’t mean anything.
Bodkin provides some support for my analysis of credibility. In Bodkin, husband sought a divorce from wife based upon a claim of habitual intoxication. However, husband also agreed to allow wife to have custody of their daughter and argued that wife shouldn’t receive alimony because she was well educated and capable of self-support. There was substantial conflicting evidence regarding wife’s use of alcohol but the family court rejected husband’s request for a divorce on the ground of habitual intoxication. The Court of Appeals affirmed this decision. In doing so it provided the following analysis on credibility:
…Wife took Daughter, who was fourteen years old at the time, with no objection by Husband, and Husband agreed to Wife having sole custody. Also, [the family court] found Husband had shown little concern for Wife’s ability to care for Daughter because he had not seen Daughter for three months until the night before the hearing….The court also noted Husband’s contention that Wife was not entitled to alimony and was capable of earning a good salary was inconsistent with his claim that she has a drinking problem of such a serious degree that it rises to the level of habitual drunkenness and led to the breakdown of the marriage.
Sometimes clients, when their marriage is dissolving, come to my office seeking to have their spouse’s visitation supervised due to some alleged mental illness, domestic violence, or substance abuse concern. My first question for these spouses is what they have been doing to protect their children from this behavior. Unlike that judge I quote above, and like the family court judge and the Court of Appeals in Bodkin, I find it uncredible when allegations are inconsistent with actions.
Bodkin also contains a thorough analysis of the factors approving the family court’s $1,500 a month alimony award to wife. Of the four issues husband appealed, he prevailed on none.
Wife, in contrast, prevailed on one of her three issues in this appeal and, I suspect, would prevail on another issue if she seeks reconsideration or gets the Supreme Court to accept certiorari. The issue she prevailed on was reversing the equitable distribution award of her life insurance policy when the parties stipulated that this insurance policy was not marital. Since the family court cannot divide non-marital property and since “[t]he court must accept stipulations as binding upon the parties,” it is unclear why the family court thought it should divide the policy.
In wife’s third issue on appeal the family court gave husband dollar-for-dollar credit for the $81,707 down payment on the marital home he made from pre-marital funds before dividing the remaining equity in the home on a 50/50 basis. The Court of Appeals affirmed this credit. This method of handling non-marital down payments on the marital home was explicitly rejected by the South Carolina Supreme Court this January in Dawkins v. Dawkins, 386 S.C. 169, 687 S.E.2d 52 (2010), which reversed both the family court and the Court of Appeals for doing what Bodkin did. While Bodkin was briefed and argued before Dawkins was decided, I’m surprised none of the judges on the Court of Appeals panel nor their clerks noted the Dawkins decision.
I argued a case in the Supreme Court last year in which I admitted that I did not know what a “special equity” is because sometimes the appellate courts use the term synonamously with equitable apportionment and sometimes they use it as something else, such as recovery of a nonmarital down payment. Two justices and very good opposing counseling admitted that they likewise do not know the meaning of “special equty.” I think the appellate judges are coming to the view that transmuted means all of it is transmuted, although Bodkin appears to be a step backward.