One portion of this opinion was substantially modified on February 25, 2015: Refiled opinion in Srivastava makes revisions to equitable distribution ruling.
The December 23, 2014 Court of Appeals opinion in Srivastava v. Srivastava has an interesting analysis on the ability to pay as a factor in an award of attorney’s fees in family court actions and (at least to me) an indecipherable analysis on the doctrine of condonation. It continues a recent trend of the Court of Appeals rejecting a family court’s credibility determinations.
Here the family court rejected Wife’s argument that her adultery had been condoned, and therefore denied her alimony, and further ordered her to pay $50,000 in Husband’s attorney’s fees. She appealed, raising seven issues. The Court of Appeals refused to address two issues related to child support because, in the family court, Wife failed to raise one issue and failed to obtain a ruling on the other issue.
The Court of Appeals reversed and remanded the attorney fee issue, noting that $50,000 represented approximately 90% of Wife’s annual income and further noting that the case of Rogers v. Rogers, 343 S.C. 329, 334, 540 S.E.2d 840, 842 (2001) reversed an award of attorney’s fees that represented approximately 16% of a wife’s annual income as being excessive. It determined “the income-to-attorney’s fees ratio makes it apparent that the family court did not sufficiently consider each party’s ability to pay, their respective financial conditions, and the effect of the award on each party’s standard of living” and “Husband earns a substantially higher annual income than Wife, which further illustrates the family court’s failure to adequately address these factors.”
In finding Husband had condoned Wife’s adultery the Court of Appeals explicitly rejected the family court’s determination that Husband was credible and Wife was not credible on this issue. This is the third time in the past decade that the Court of Appeals has rejected a family court’s credibility determinations. Prior to McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified, 383 S.C. 150, 679 S.E.2d 172 (2009), the appellate courts had never rejected a family court’s credibility determinations. Last year, in Ward v. Washington, 406 S.C. 249, 750 S.E.2d 105 (Ct. App. 2013), the Court of Appeals reversed a family court’s contempt finding that was based, in part, by the family court’s determination that the mother was not credible.
A family court’s credibility determinations have typically been the area where the appellate courts show the greatest deference to the family court. “[A]ppellate courts should be mindful that the family court, who saw and heard the witnesses, sits in a better position to evaluate credibility and assign comparative weight to the testimony. Because the appellate court lacks the opportunity for direct observation of the witnesses, it should accord great deference to trial court findings where matters of credibility are involved.” Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008) (citations omitted). Savvy family court attorneys and judges will load final orders with credibility determinations to reduce the likelihood of the order being overturned on appeal. This recent willingness of the Court of Appeals to reject a family court’s credibility determinations should encourage appellate lawyers to challenge such determinations if evidence in the record demonstrates a lack of credibility by the party the family court found credible or demonstrates credibility by the party the family court found lacked credibility.
In Srivastava, the Court of Appeals found Husband had condoned Wife’s adultery because the parties had resumed cohabitation for fourteen months after Husband learned of Wife’s adultery. The Court of Appeals held that Wife’s frequent absences from the home for travel and vacation during this period did not mean the parties were not cohabiting, as the parties intended these absences to be temporary. The Court of Appeals appeared to give little weight to the infrequency or absence of “marital intimacy,” as it believed the evidence demonstrated Husband’s intent to forgive Wife her adultery. It gave much weight to an email Husband sent Wife during this period, especially the language, “At no point in this turmoil . . . have [I] stopped loving you or dreaming of our future together.”
In finding the adultery was condoned the Court of Appeals focused on Husband’s intent and indicated Husband intended to forgive Wife. There is very little in the Court of Appeals’ opinion indicating that Wife’s desire to reconcile was sincere. Because the Court of Appeal founds Wife’s adultery had been condoned it remanded the consideration of alimony back to the family court for reconsideration.
I have blogged previously regarding the difficulty of understanding South Carolina’s approach to the doctrine of condonation and this opinion does little to clarify my confusion. A policy that appears to allow an insincere spouse to dupe a loving spouse into condoning adultery is simply not just.
The Court of Appeal further found that Wife’s “looking for company” on JDate after leaving her Husband was insufficient evidence of adultery to bar her from alimony, as “Husband has not offered proof that anything more than an informal ‘coffee meeting’ occurred during these ‘dates.’”
On equitable distribution the Court of Appeals rejected Wife’s claims that the family court “gave excessive weight to (1) her ‘indiscretion,’ (2) the $45,360 ‘gift’ Wife gave to her mother, and (3) the unauthorized $16,626 withdrawal from a marital account while the divorce action was pending.” The Court of Appeals affirmed the family court’s finding that this “gift” to her mother, done while her affair was ongoing, “fraudulently and purposely reduced the marital estate to her advantage in contemplation of divorce.” One might think Wife’s actions would impact her credibility, and that this would cause the Court of Appeals to give greater deference to the family court’s credibility determination–but apparently it didn’t.
However the Court of Appeals still remanded the issue of equitable distribution back to the family court. It did so, in part, because the reconsideration of alimony could be a factor in equitable distribution. However it also did so because the family court’s equitable distribution award left Wife with mostly illiquid assets, especially a retirement account. The Court of Appeals further noted that the family court failed to consider the tax consequences of awarding Wife these retirement funds when Husband was getting to keep non-taxable equity in a marital home.
Prior case law, specifically Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002) and Ellerbe v. Ellerbe, 323 S.C. 283, 473 S.E.2d 881 (Ct.App.1996), held that it was error to consider the tax consequences of an award of retirement funds in equitable distribution when no sale or liquidation is contemplated. Perhaps Srivastava is distinguishable because Wife may have needed to liquidate these retirement funds immediately if she was to have any liquid assets.
I am not sure what I think about the phrase “conjugal conveniences” when they are discussing condonation. Is that a term of art I missed somewhere along the way?
Probably buried in the same ancient dictionary in which the South Carolina Supreme Court located “important hymeneal obligations” for its opinion in Levin v. Levin, 68 S.C. 123, 46 S.E. 945, 948 (1904).