I won’t blog about my own appeals until remittitur issues as I don’t want to be seen as trying to influence the appellate courts (not that I think they care—or even read—what I write in this blog). Thus, I’ve delayed writing about the August 31, 2022 Supreme Court opinion in Rudick v. Rudick, 437 S.C. 270, 878 S.E.2d 686 (2022). But, with my Hail Mary petition being denied today, it’s time to discuss the biggest professional disappointment of my career—a case I was hoping might redefine how alimony is awarded in South Carolina but didn’t.
I was not Wife’s trial attorney. At trial, despite an income over three times her Husband’s, she and her attorney discounted the risk she might have to pay alimony. The family court awarded Husband permanent periodic alimony and she hired me to appeal. At the Court of Appeals we argued she should not have to pay alimony because she was the primary homemaker and thus her Husband was not a “supported spouse” for the purpose of South Carolina’s alimony statute, S.C. Code § 20-3-130. We also argued that the family court overstated her income by failing to amortize her annual bonus (there were further issues of equitable distribution and attorney’s fees that were not relevant to the appeal in the Supreme Court).
The Court of Appeals, in an unpublished opinion, reduced Wife’s alimony due to the family court overstating her income but did not address the “supported spouse” issue. The Supreme Court granted certiorari on the sole issue of whether Husband was a “‘supported spouse’ and therefore alimony should be lower than it would be in a more traditional marriage and should only be rehabilitative.”
In a 4-1 decision, the Supreme Court decided to leave Wife’s alimony obligation at the level set by the Court of Appeals. The majority did not find the alimony statute ambiguous merely because it did not define “supported spouse,” holding:
[I]t is clear the descriptive term “supported spouse” is used merely to delineate the person actually receiving alimony. We refuse to accept Wife’s invitation to augment the language of the statute by requiring an alimony recipient to establish that he or she has actively reduced his or her earning capacity in order to support the marriage.
The majority agreed with Wife “that our jurisprudence has, at times, overemphasized the standard of living factor in deciding whether to award alimony.” However it refused to find “the parties’ [marital situation] was ‘unusual’ and that it justified a departure from the principle that a spouse is entitled to support which places him or her—as far as practical—in the same position as he or she enjoyed during the marriage.” It held:
The court of appeals properly rejected this argument, ostensibly not finding the situation sufficiently unusual. We likewise see nothing particularly unusual presented here, and instead view these facts as a fairly typical scenario in a modern marriage where both parents work outside the home and share the child-raising responsibilities as their work schedules permit.
What the majority opinion fails to note is no prior opinion had required a primary homemaker to pay alimony.
Justice Few dissented. His dissent may be a template for future alimony litigation. One reason this opinion took over 16 months after oral argument to issue is Few read every published alimony opinion since 1990. Like me, he found South Carolina’s alimony jurisprudence to be a “dog’s breakfast” [my term, not his], in which permanent periodic alimony has been unnecessarily elevated and constrained without any statutory support. He wrote, “I have found it surprising—troubling—that hardly any of these opinions actually explain the importance and reasoning behind the statutory factors.”
His dissent begins:
Alicia and Brian Rudick were forty-five years old in 2016 when the family court ordered $3,000 a month in periodic alimony with no end date. The idea that Alicia must pay Brian even the $2,700 to which the court of appeals reduced the award for the rest of their lives is breathtaking. The notion that Alicia may have this award reduced only by filing a new action and showing a substantial, unanticipated change in circumstances is also absurd. Neither the permanency of the award nor the practical impossibility of changing it is called for under the terms of our State’s comprehensive statutory alimony scheme set forth in section 20-3-130 of the South Carolina Code (2014). Rather, the facts that Brian will receive this unnecessary windfall and Alicia must bear this unjust burden derive from two incorrect views of the law of alimony taken by the family court bench and bar. The first is that there is a “preference” for periodic alimony. The second is that periodic alimony may end only upon the remarriage of the supported spouse, the death of either spouse, or a family court’s determination in a later action that a substantial, unanticipated change in circumstances has occurred.
Obviously, I would have preferred Few’s dissent be the majority opinion. Frankly, I could never get Justice Hearn (who wrote this majority opinion) to see an important or relevant distinction between traditional alimony cases involving a spouse who deferred career to run a household and situations in which a spouse who had a fully developed career and who did not handle the majority of homemaking tasks seeks alimony. An alimony statute in which someone becomes a “supported spouse” because a family court judge decides to award that person alimony is a statute that fails to provide proper guidance to judges.
One reason for my tremendous disappointment with Rudick is that the opinion was initially transmitted to me with a ruling “Affirmed as Modified.” From that caption I assumed the Supreme Court had affirmed some alimony but either reduced the amount or term. However, in reading this draft, I realized alimony had not been changed.
A few minutes later the opinion was resubmitted to me as “Affirmed,” reflecting that alimony had not been changed. Few’s dissent explains his belief why Ms. Rudick’s alimony should be terminated but then goes to great length explaining why a $2,000 per month figure, which would have represented a $700 per month reduction, is the correct amount if alimony isn’t terminated. Given this lengthy justification for a specific figure, I sense that an earlier draft of the majority opinion reduced my client’s alimony to $2,000 per month—hence a caption “Affirmed as Modified”—but then the majority decided not to reduce it at all. My belief that Ms. Rudick came very close to getting some alimony reduction (and I came close to at least a partial victory) compounds my disappointment.
I used the Rudick appeal to provide the Supreme Court an opportunity to explain why alimony should be awarded. It declined that invitation and this is a huge professional disappointment. It will take our state legislature or Few convincing two other justices that alimony jurisprudence needs reform to fix the issues his dissent spots.Hoping to be a feminist hero, I am merely, on this occasion, a losing attorney.
I am also deeply disappointed by this decision.