I negotiated the resolution of a motion for temporary relief at the courthouse on Friday. On at least three different occasions during the hour and a half negotiation either I or the opposing attorney asked for language in the agreement based on nothing more than our clear expectation that the family court judges could not be expected to follow case law on what is a change of circumstances or not giving precedential value to a temporary order at the final hearing.
This isn’t atypical in my experience, leading me to ask: “Is South Carolina family court the only place where attorneys negotiate with the expectation that judges won’t follow the law?”
4 thoughts on Is South Carolina family court the only place where attorneys negotiate with the expectation that judges won’t follow the law?
So, Greg, do you mean, for example, when two parties agree to pay college expenses? Absent that agreement, it can’t be ordered. I am not sure what you are referring to here.
Two (possibly three) of the additions to the agreement were to be clear that an anticipated situation would be considered a “change of circumstances” to allow a pendente lite modification.
Also the opposing party wanted to flip our alimony and child support offers to use the same figures but make the higher figure the temporary alimony award. In theory, this should be counterproductive: alimony is taxable to his client and child support is not. However, he figures that the family court judge at trial will look to the temporary alimony award in setting permanent alimony, thereby ignoring Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).
Now when Rimer notes that “we adhere to the principle” [my emphasis] I understand that this as our appellate courts re-reminding our family courts to not treat temporary orders as precedent. But I fear my colleague is correct that whatever family court judge hears this matter at trial will ignore Rimer and look to the temporary order to set alimony.
Question: “Is South Carolina family court the only place where attorneys negotiate with the expectation that judges won’t follow the law?”
Answer: “No”. However, we have only worsened with time.
DC Courts have a system that rotates all judges through each division of the court. Some judges with extensive experience in criminal matters or even transactional law find themselves presiding for a term in Family Court. Through a combination of picking up cases mid-way, a lack of clear precedent, and an unfamiliarity with family law, many judges do disregard the law. I don’t believe it’s intentional, but the fact that so many people in family court are pro se doesn’t help the judges much when ruling from the bench.
So, Greg, do you mean, for example, when two parties agree to pay college expenses? Absent that agreement, it can’t be ordered. I am not sure what you are referring to here.
Two (possibly three) of the additions to the agreement were to be clear that an anticipated situation would be considered a “change of circumstances” to allow a pendente lite modification.
Also the opposing party wanted to flip our alimony and child support offers to use the same figures but make the higher figure the temporary alimony award. In theory, this should be counterproductive: alimony is taxable to his client and child support is not. However, he figures that the family court judge at trial will look to the temporary alimony award in setting permanent alimony, thereby ignoring Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).
Now when Rimer notes that “we adhere to the principle” [my emphasis] I understand that this as our appellate courts re-reminding our family courts to not treat temporary orders as precedent. But I fear my colleague is correct that whatever family court judge hears this matter at trial will ignore Rimer and look to the temporary order to set alimony.
Question: “Is South Carolina family court the only place where attorneys negotiate with the expectation that judges won’t follow the law?”
Answer: “No”. However, we have only worsened with time.
Condon v. Condon, 312 SE 2d 588 – SC: Court of Appeals 1984,
Sharps v. Sharps, 535 SE 2d 913 – SC: Supreme Court 2000,
Smith-Cooper v. Cooper, 543 SE 2d 271 – SC: Court of Appeals 2001.
Atkinson v. Atkinson, 309 SE 2d 14 – SC: Court of Appeals 1983,
Carter v. Carter, 286 SE 2d 139 – SC: Supreme Court 1982,
Stahl v. Stahl, 278 SE 2d 782 – SC: Supreme Court 1981,
Garvin v. Garvin, 271 SE 2d 413 – SC: Supreme Court 1980
It goes on longer than I have time to deal with, but I do realize how you may feel.
DC Courts have a system that rotates all judges through each division of the court. Some judges with extensive experience in criminal matters or even transactional law find themselves presiding for a term in Family Court. Through a combination of picking up cases mid-way, a lack of clear precedent, and an unfamiliarity with family law, many judges do disregard the law. I don’t believe it’s intentional, but the fact that so many people in family court are pro se doesn’t help the judges much when ruling from the bench.