The refiled October 21, 2024, Court of Appeals opinion in Abbas-Ghaleb v. Ghaleb, 444 S.C. 245, 907 S.E.2d 105 (Ct. App. 2024), stems from a trial and appeal I handled. The parties’ marriage was short, tempestuous, and produced a daughter who was a mere infant when they separated. In the fifteen months between the temporary hearing and trial, the parties exercised true joint custody. After trial, the family court granted Wife primary physical custody and legal decision making on all issues but medical, awarded Husband final decision making on medical, and prevented Husband from taking daughter to his home country of Lebanon. Given the short marriage, the family court’s equitable division of marital property was nowhere close to equal. The family court awarded Wife $40,000 in attorney’s fees but denied Wife’s request for attorney’s fees from defending Husband’s Rule 59 motion. Both sides appealed.
On appeal, Husband argued the family court erred in granting Wife primary custody and general decision-making authority, while Wife argued the court erred in setting Husband’s visitation and in awarding him medical decision-making authority. The Court of Appeals affirmed the family court on all custody issues. In affirming the award of custody to Wife, the Court of Appeals found:
[T]he parties’ toxic relationship presents a potential, if not imminent, risk of harm to Daughter’s mental health. We further find the family court, which was in a better position to evaluate the witnesses’ credibility and assign comparative weight to their testimonies, properly awarded Wife primary custody…
[T]he following circumstances support the award: Wife moved to Aiken with Husband to become a stay-at-home mom and has been Daughter’s primary caretaker; despite their atrocious conduct toward one another, Wife—although misguided regarding medical care and treatment—generally sought to act in Daughter’s best interests while Husband did not always act in her best interests; Dr. Harari’s opinions regarding Husband’s parenting style and psychological functioning are concerning; and other neutral observers opined that while both parents love Daughter, they are unable to effectively co-parent. Although there is no definitive evidence of domestic abuse, Husband’s controlling behavior and his “my way or no way” tendency—acknowledged by his friends and colleagues and specifically noted by at least one of the law enforcement witnesses—is of great concern to this court from a custody standpoint.
However, the Court of Appeals declined Wife’s request to reduce Father’s visitation, noting, “there is no evidence of physical abuse in the record. Although Dr. Harari [the custody evaluator] acknowledged ‘coercive control is a form of domestic violence’ he declined to label Husband as a ‘coercive controlling violent person’ or a ‘physical batterer.’”
Emphasis in original.
In justifying the award of primary medical decision making to Husband, the Court of Appeals noted:
[A]lthough it concerns us that Husband was reluctant to even consider the frenectomy recommendation in light of the baby’s difficulties breastfeeding and maintaining a healthy weight, there is greater problematic evidence regarding Wife’s approach to Daughter’s medical care. Wife’s “history of withholding care that is recommended by [Daughter’s] physicians” includes failing to supplement her diet, refusing to vaccinate her despite medical recommendations and at least one court order requiring her to do so, and declining to fill a prescription for antibiotics after the baby suffered several days of fever and illness. These are just a few of the examples in the record supporting the family court’s award of medical decision-making authority to Husband. The family court’s well-reasoned order granting Wife all remaining decision-making authority is not only the best way to relieve some of the conflict between these parties while serving Daughter’s best interests, it is the logical choice in this unfortunate situation.
The Court of Appeals affirmed the family court’s decision to grant Wife the dependent tax deduction for daughter. Husband first raised the issues that Wife was unemployed at the time of the final hearing and he was responsible for a greater share of child support in his motion to reconsider. Thus his arguments were not preserved for appeal.
Both parties appealed the equitable distribution award. The Court of Appeals rejected all of the issues Husband raised and reversed and remanded most of the issues Wife raised.
The Court of Appeals affirmed the family court order requiring Husband to either return Wife’s engagement ring or provide her $5,000 to compensate for its value. It found substantial evidence that Husband had possession of the ring. It acknowledged Husband’s position that the family court lacked jurisdiction to apportion non-marital property, but held the family court had jurisdiction to determine what was and was not marital. It held the family court did not apportion the engagement ring, but merely determined it was in fact non-marital and belonged to Wife. It thus affirmed the family court ruling requiring Husband to either return the ring or provide Wife $5,000 for its value.
On appeal, Wife argued the family court erred in failing to account for post-filing growth and a $21,985.18 pendente lite withdrawal Husband took from his Vanguard account. The Court of Appeals agreed and remanded the matter to revalue that account after addressing these two issues and then equally divide account once this valuation is made.
Both parties appealed the valuation of Husband’s Areva Amundi and Credit Mutuel Accounts. The family court divided two accounts but the Court of Appeals found there were three accounts total. The Court of Appeals further found that, based on records showing Husband’s employer depositing into these accounts during the marriage, the family court’s finding that “minimal” contributions were made to these accounts during the marriage was not accurate. The Court of Appeals ruled:
The court should review the bank statements or other necessary documentation for all of Husband’s Areva (Amundi, Credit Mutuel, or otherwise) accounts held during the marriage and revalue and reapportion them. Husband shall pay for a translator should one be necessary to aid the family court’s review because his evasive testimony and movement of funds among the various accounts (along with his steadfast refusal to candidly acknowledge the marital nature of certain transferred funds or even admit the existence of certain accounts) has caused much of the confusion here.
Emphasis in original.
Wife appealed family court’s decision to only award her 20% of Husband’s BOA account ending 6752. She disputed the family court’s finding that only minimal contributions were made to Husband’s BOA accounts during the marriage. The Court of Appeals agreed with Wife. It noted that Wife provided Husband a $25,000 check (which she considered a loan) that he deposited into BOA account 1855. He then transferred $43,000 from BOA account 1855 to BOA account 6752 and used funds from 6752 to purchase a Jaguar. At trial the parties disputed whether any of the $25,000 Wife provided Husband needed to be paid back. The Court of Appeals held:
In light of Husband’s testimony that his salary was deposited into account 1855, the commingling of funds in BOA accounts 1855 and 6752, and the fact that the funds Wife loaned Husband to buy the Jaguar traversed both BOA accounts, we reverse the family court’s apportionment of the BOA account ending in 6752 and reapportion it equally between the parties. Thus, we find Wife is entitled $17,060.50, or fifty percent of the value of BOA account 6752.
Both parties disputed the family court’s division of Wife’s TSP account. Husband argued he was entitled to more than the 20% the family court awarded him. Wife argued the family court awarded Husband too much as she claimed only $28,227 of the $115,743 date of trial value resulted from marital contributions or growth during the marriage. The Court of Appeals, noting he family court failed to account for growth related to premarital contributions reversed and remanded for the family court to revalue and reapportion the marital portion of Wife’s TSP account.
Both parties disputed the division of Wife’s Edward Jones Account. Husband argued he was entitled to more than 10% of the value. Wife argued that only $5,500 had been deposited into the account during marriage and thus awarding Husband $4,294 was inequitable. The Court of Appeals found the record inadequate to determine how much of the account was transmuted. It thus “reverse[d] and remande[d] the valuation and apportionment of the Edward Jones IRA with instructions that the family court consider Wife’s Edward Jones Portfolio in conjunction with other account documentation in the record as may be necessary to calculate marital versus nonmarital percentages. The family court should then equitably apportion only the funds (and fund growth) the court deems marital.”
The family court restrained Husband from taking the minor child to Lebanon. At trial Wife made three arguments to support this travel restriction: Husband was a citizen and passport holder for Lebanon and thus had the ability to keep daughter in Lebanon if he took her there; Lebanon is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction; and State Department’s travel advisory for Lebanon was elevated. [1] Husband appealed.
To lift this restriction Husband made a different argument in his amended Rule 59(e) motion to reconsider than he did on appeal, arguing on appeal that “this provision of the order is punitive and only has the effect of intimating to Daughter that she should be ashamed of [Husband]’s home country and her heritage.” The Court of Appeals refused to consider this argument and held that the restriction was not “a punitive provision.” It found “the family court’s travel restriction to be well-reasoned and in Daughter’s best interest.”[2]
Husband appealed the family court’s award of $40,000 in attorney’s fees to Wife, arguing “Wife has the resources to pay her fees, was uncooperative, and spent money on materials not used to present her case.” The Court of Appeals still affirmed this award, finding, “the family court’s award of $40,000—less than half of the total fees Wife requested—was reasonable and appropriate given the circumstances of this case, specifically the complexity of the issues, the parties’ respective abilities to pay, the time properly devoted to this contentious case, and the professional standing of counsel.”[3] It also noted “the behavior of the parties and beneficial results Wife obtained further support the award.”
Wife appealed the denial of her fee request for defending Husband’s motions to reconsider. The Court of Appeals noted, “[a]lthough Husband timely filed his initial post-trial motion seeking reconsideration of eleven issues, he then filed an amended motion two-and-a-half weeks later. Some of the new matters raised in the amended motion were untimely under Rule 59(e); others sought redress as to issues not raised at trial. Wife conceded one post-trial matter and successfully defended the others. Accordingly, we find it appropriate to grant Wife the attorney’s fees she incurred following Husband’s amended filing and award her $4,480.00 of the requested $10,185.00 in fees related to defending Husband’s post-trial motions.”
Abbas-Ghaleb is one of the most satisfying case I’ve yet handled. Wife came to me with a temporary order of 50/50 custody that lasted 15 months until trial. The guardian testified the 50/50 was working well and the court-appointed custodial evaluator recommended continuing the 50/50 custody. I was able to get Wife primary physical custody and substantial attorney’s fees and maintain those results on reconsideration and appeal. I was able to substantially increase her equitable distribution award on appeal.
Abbas-Ghaleb was also the first case my wife of almost 35 years, Karen Forman, assisted me on after she graduated from law school. Karen was instrumental in putting together useful exhibits for trial, developing lines of questioning for witnesses, and getting Wife comfortable with answering questions on cross-examination. I doubt I would have achieved such a good result without her assistance.
Abbas-Ghaleb also demonstrates how de novo review is causing the appellate courts to be less deferential to family court factual findings, as the equitable distribution sections of the opinion demonstrate. While nothing in opinion is ground breaking, it does provide support for dividing legal custody and restricting travel to dangerous countries. It is the second published opinion in under two years affirming divided legal custody, following last year’s decision in Greene v. Greene, 439 S.C. 427, 887 S.E.2d 157 (Ct. App. 2023). When, in February 2016, I wrote the blog, Why not divide up legal custody?, I was unaware of any family court actually ordering it (absent the parties agreeing to it). Less than a decade later, it happens more frequently and the Court of Appeals appears to approve.
[1] As of November 22, 2024, Lebanon is threat level four–the highest level.
[2] I am now the prevailing attorney in two of the three published South Carolina opinions restricting a parent from traveling with his child to his home country, my other such appeal being Bojilov v. Bojilov, 425 S.C. 161, 819 S.E.2d 791 (Ct. App. 2018). Given that I have encouraged my own children to travel, study, and live overseas, I truly relish this irony.
[3] In further affirming this award, the Court of Appeals held, “we agree with the family court’s recognition that ‘both parties were being represented by excellent attorneys and both attorneys [did] a very competent job representing their clients in this action.’” I am one of those “excellent attorneys.” Folks who don’t think my ego isn’t greatly boosted by this published recognition of my excellence clearly do not know me. Thank you Judge McDonald.
Seems like a hell of a lot of legal fees over relatively little money.
Custody was the big issue and both parties were willing to spend a lot of money to fight that.