The South Carolina family law appellate opinions of 2022

Posted Friday, January 20th, 2023 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

For over 13 years I’ve written about every published South Carolina opinion addressing family law.   Every year since 2010 I’ve done a summary listing and briefly describing every published appellate decision on family law.  I find these annual overviews useful exercises in seeing how a calendar year shaped South Carolina family law.

2022 seemed like a slow year but I’m surprised that there were actually fourteen published opinions—including Rudick v. Rudick, 437 S.C. 270, 878 S.E.2d 686 (2022), the biggest professional disappointment of my career and my first absolute loss in the South Carolina Supreme Court.  Other than noting that published opinions “overemphasized the standard of living factor in deciding whether to award alimony,” it did nothing the change South Carolina’s alimony jurisprudence.

In Swain v. Bollinger, 435 S.C. 280, 866 S.E.2d 923 (2022), perhaps the most consequential family law opinion of 2022, the Supreme Court reversed a family court and Court of Appeals’ denial of a termination of father’s parental rights and granted maternal grandfather his request for adoption. It held adoption is more stable than custody.

Hopefully shamming my colleague who refuse to handle appeals, in Williams v. Williams, 436 S.C. 550, 873 S.E.2d 785 (Ct.App. 2022), a pro se litigant effected significant changes to South Carolina family court procedure.  First, if a challenge is made to jurisdiction, the family court must establish jurisdiction before granting temporary relief. Second, filing a motion or responsive pleading pursuant to Rule 12(b), SCRCP, and then participating in the proceeding, does not waive these jurisdictional challenges. Finally, the United States code section regarding personal jurisdiction for dividing military retirement overrides South Carolina’s long-arm statute.

For folks who handle custody appeals Rossington v. Rossington, 438 S.C. 63,  882 S.E.2d 170 (2022), appears to have inspired a Supreme Court order expediting all custody appeals. This was necessary from a jurisprudential standpoint (custody appeals were taking years to resolve) but stressful for attorneys who handle custody appeals.

Glinyanay v. Tobias, 436 S.C. 137, 871 S.E.2d 193 (Ct.App. 2022), addressed numerous novel legal issues that tend to recur in South Carolina custody litigation. It is the first reported opinion addressing Rule 23, SCFCR, regarding presence or testimony of a child. It confirms that the hearsay exception of Rule 803(4), SCRE, applies to mental health professionals. It reverses an award of attorney’s fees to the prevailing party because of her greater ability to pay fees.

Powell v. Dolin, 437 S.C. 499, 879 S.E.2d 26 (Ct. App. 2022), continued the appellate court’s more jaundiced view of common law marriage. Register v. Dixon, 437 S.C. 434, 879 S.E.2d 9 (Ct. App 2022), continued the appellate court’s recent pattern of closely reviewing and sometimes reversing family court’s credibility determinations. I applaud both trends.

Cohen v. Cohen, 438 S.C. 9 881, S.E.2d 650 (Ct. App. 2022), established two interesting points on alimony.  First, a ten-year marriage is neither so long as to essentially mandate alimony nor so short as to mitigate against it. Second, one can be a supported spouse at the time of the marital breakup despite historically being the primary wage earner.

Seels v. Smalls, 437 S.C. 167, 877 S.E.2d 351 (2022), confirmed that a marital dissolution action survives the death of a party. Dover v. Ball, 437 S.C. 82, 876 S.E.2d 161 (Ct.App. 2022), confirmed that a conservator and guardian can bring a separate maintenance action on an incapacitated person’s behalf. Bostick v. Bostick, 436 S.C. 43, 872 S.E.2d 859 (Ct.App. 2022), confirmed that goodwill from the sale of a retired dentist’s practice was not subject to equitable distribution.

Jacobs v. Zarcone, 436 S.C. 170, 871 S.E.2d 211 (Ct.App. 2022), is part of a recent pattern of appellate court decisions in which folks litigating custody of a child are not the child’s legal or biological parents.  If one is so inclined to be disturbed by third-parties litigating custody because the parents are absent, this is yet another data point in the decline of Western Civilization.

For reasons known only to the Court of Appeals, it decided in Holland v. Holland, to publish an unpublished 2021 opinion that held South Carolina’s statute of limitations does not apply to child support.

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