How to Draft a Family Court Final Order that will get Sustained on Appeal (December 2010)

Material for South Carolina Family Court Bench Bar, December 2010

Pursuant to South Carolina Rule of Family Court 26 (a & b):

An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision. By signing his name to an order in a domestic relations case, the judge certifies compliance with this rule.

Because South Carolina family court judges don’t have law clerks, they typically seek to have the “prevailing” attorney draft their final orders.  In one trial I handled, the Honorable Jack Alan Landis asked both sides to provide him proposed findings of fact and conclusions of law which he then chose from in drafting a final order.  Even though I didn’t prevail on some of the issues, I thought this was an excellent way for a family court judge to create a final order and his ruling was affirmed on appeal (an appeal I did not handle) in Robinson v. Robinson, 2005-UP-641 (Ct.App. 2005).  Still no other judge, in my experience, has ever done this.  A family law attorney who hopes to prevail in his or her trials had better learn how to draft his or her final orders.

In doing so, that attorney should be cognizant of how to draft a final order that will be sustained on appeal.  There are certain attorneys–and I am one of them–who will recommend appeal on most trials they lose if the “lost” issues merit the trouble and expense of an appeal; after all, any case worth trying is probably worth appealing.  The skill of drafting a final order that will be sustained on appeal is often overlooked, but it is an important skill to develop.

To understand how to properly draft a family court final order, one needs to understand the standard of review on appeals from family court decisions.  In an appeal from the family court, the appellate court may correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.  Semken v. Semken, 379 S.C. 71, 75, 664 S.E.2d 493, 496 (Ct. App. 2008).  This is a much broader review of factual findings than that applicable to jury decisions, which tend to be reviewed on an “any evidence” standard.  However “appellate 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).

Most issues in family court are reviewed on an abuse of discretion standard. See e.g., Tracy v. Tracy, 384 S.C. 91, 682 S.E.2d 14, 17 (Ct.App. 2009) (“A trial court’s determination regarding contempt is subject to reversal where it is based on findings that are without evidentiary support or where there has been an abuse of discretion”); King v. King, 384 S.C. 134, 681 S.E.2d 609, 614 (Ct.App. 2009) (“The division of marital property is within the family court’s discretion and will not be disturbed on appeal absent an abuse of that discretion”); Smith v. Smith, 386 S.C. 251, 263, 687 S.E.2d 720 (Ct.App. 2009) (“Child support awards are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion”); Id., 386 S.C. at 265 (“The decision to grant or deny alimony rests within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion”); Id., at 267 (“The award of attorney’s fees is left to the discretion of the trial judge and will only be disturbed upon a showing of abuse of discretion”).

What lessons can be gleaned from this case law?  First, erroneous legal conclusions that affect the family court’s order will lead to reversal.  Second, factual findings will typically only lead to reversal if the family court abused its discretion.  Third, the appellate courts will find facts in accordance with their own view of the preponderance of the evidence and this broader standard of review of factual findings makes it easier to reverse a family court judge on factual issues than it would be to reserve a jury decision.  Fourth, the appellate courts will give greater deference to factual findings based on credibility determinations or the weighing of evidence.

Now to apply these lessons to drafting a final order.  Start by considering what factual findings the family court could reasonably make on witness credibility that would support the court’s decision.  It is not enough to say that a particular witness was credible, or not credible; it’s better to have the factual findings describe what made a witnesses’ testimony credible (or not).^[1] For example, merely stating that the Defendant was not credible is not nearly as likely to be respected by the appellate court as explaining that the Defendant was not credible because he frequently failed to recall adverse facts on cross examination until confronted with documentary evidence of these facts.  Think also about elements of a witnesses’ credibility that might not be apparent from the trial transcript.  If a witness was prone to outbursts, or argumentative during cross-examination, these facts will be helpful in defending the order on appeal only if factual findings showing this are made in the family court’s order.  Further, this section should explain how and why the court weighed contradictory evidence in the client’s favor.

Next add in factual findings that support the client’s position on all the issues the court was asked to resolve.  Remember that such factual findings can come from testimony elicited from the other party’s witnesses as well as one’s own.  Keep in mind that “[t]he family court abuses its discretion when factual findings are without evidentiary support.” Edwards v. Edwards, 384 S.C. 179, 183, 682 S.E.2d 37, 39 (Ct.App. 2009).  Therefore, one should make certain that the proposed factual findings are somewhere in the record so as to avoid the possibility of reversal due to unsubstantiated factual findings.

Make these factual findings exhaustive by asking: if I have to defend this order on appeal, what factual findings will I include in the “statement of facts” and “argument” sections of the brief to support the family court’s ruling?  Every one of those “facts” should be included in the family court’s order.   Findings of fact should not be mere recitation of what the witnesses’ testimony was but should instead be the facts the court is relying upon to justify its ruling.   For some factual findings–as when the court makes credibility determinations or finds facts based on uncontroverted testimony–it is useful to describe testimony.  Otherwise, it should be avoided.  Some examples:

• Witness X testified that he saw the Plaintiff enter the home of her alleged paramour.  The court does not find this testimony credible because…. [Good.  It describes testimony that the court made a credibility determination on]
• The Defendant’s only evidence that the Plaintiff committed adultery is the testimony of Witness X.  Because this witness was not credible, the Defendant has failed to meet his burden of proof on this issue. [Good.  It finds a fact but does not list testimony]
• The Plaintiff testified that her income was $2,000.00 a month.  This testimony was corroborated by a current pay stub.  While the Defendant contends that the Plaintiff’s earning capacity is higher, he presented no evidence to support this claim.   Accordingly, the Plaintiff’s earning capacity is $2,000.00 a month for support purposes.  [Good.  It ties the testimony into why the court made the factual finding]
• Witness X testified …..  Witness Y testified ….  Witness Z testified …. [Bad. This is a mere recitation of testimony and does not explain why the court made the ruling it did]

However, it is not enough that one’s client prevails; one needs to explain why the other side lost.  In order for the family court to “exercise discretion” the final order needs to be clear that the family court judge understood and addressed the losing party’s position.  Callen v. Callen, 365 S.C. 618, 627, 620 S.E.2d 59, 64 (2005) (“When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred”).  Simply listing facts that support one’s victory does not show the appellate court that the judge exercised discretion. See Woodside v. Woodside, 290 S.C. 366, 373, 350 S.E.2d 407, 411-12 (Ct.App. 1986) (failure to properly consider all attorney fee factors ground for remand); Id., 290 S.C. at 279-80, 350 S.E.2d at 415 (failure to consider wife’s medical bill issue ground for remand; Rivenbark v. Rivenbark, 301 S.C. 175, 391 S.E.2d 232 (1990) (failure to properly consider alimony and equitable distribution factors basis for remand); Riggin v. Riggin, 282 S.C. 171, 174, 318 S.E.2d 117, 118-19 (1984) (failing to find and consider husband’s income from his outside work in determining the award of alimony basis for remand); Tucker v. Tucker, 282 S.C. 261, 265-66, 317 S.E.2d 764, 767 (Ct.App. 1984) (failure to consider husband’s business property in determining equitable distribution required remand); McLean v. McLean, 273 S.C. 571, 574-75, 257 S.E.2d 751, 753 (1979) (error to fail or refuse to consider husband’s spendthrift trust in setting child support).

Thus, factual findings should be included that describe the losing party’s position on contested issues and describe why that position was unavailing.  By including “factual findings” that explain and reject the other side’s position, the order confirms that the judge weighed the evidence and exercised discretion–as opposed to accepting one side’s position while ignoring the other side’s position.  Again examples:

• The Defendant argues that one reason she should be awarded custody of the parties’ infant child is that she is the mother.  However South Carolina no longer has a presumption that mothers should be awarded children of “tender years.”
• The Plaintiff seeks to change custody of the parties’ child because of academic problems the child has had in middle school.  However the child’s teachers testified that the Defendant was actively involved in the child’s school and that the Defendant is taking all recommended steps to assist the child.  Meanwhile these teachers note that the Plaintiff is not a presence at the school and that they have had no dealings with him.  Absent evidence that the Plaintiff would be better able to oversee the child’s academic progress, there is no reason to believe a change of custody would be beneficial.
• The Defendant argues that, given the brevity of the parties’ marriage, an award of permanent periodic alimony is unjust.  However, no evidence was presented regarding the Plaintiff’s ability to rehabilitate herself to the point where she would be able to maintain the marital lifestyle without alimony.   Moreover, in South Carolina, permanent periodic alimony remains the favored form of alimony.  Absent evidence of an ability to rehabilitate, an award of rehabilitative alimony would not be proper.

One could use the same “facts” from the last example and reach the opposite conclusion:

• The Plaintiff seeks permanent periodic alimony, noting there is no evidence that she can rehabilitate herself, and thereby maintain the marital lifestyle, without permanent alimony.  However length of the marriage is an important factor in the award of alimony.  Given the brevity of the parties’ marriage, an award of rehabilitative alimony is proper, notwithstanding the continued preference in South Carolina for permanent periodic alimony.

I would suggest that both of the two prior factual findings would be sustained by the appellate courts, despite their reaching opposite conclusions, because both findings evince a proper understanding of the law and a reasoned weighing of the evidence.

When drafting an order awarding relief based upon a statutory set of factors its helpful to make specific findings of fact on each factor.  Include the calculations used in assigning values to pieces of property so that the appellate court can see how the judge came up with the figure used.

Finally, one should draft the conclusions of law section with a very simple goal: if one has to defend every contested issue on appeal, what authority is going to be in the “table of authorities” of the respondent’s brief.  Remember that the authority being cited is not only going to be authority in support of one’s client’s position; there will also be authority cited by the appellant that the respondent’s brief will need to distinguish.  As with the factual findings section, a legal conclusion section that fails to address the opposing party’s position is weaker than one that addresses, but ultimately rejects, that position.  Thus, the legal conclusions should site supporting authority as favorable but also cite the other party’s legal authority while explaining why it is distinguishable.  The conclusions of law should not only list the cases and statutes that the court relied upon in making its ruling, but also explain the legal point that the statute or case establishes in support of the ruling.  Some examples:

• In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors…. S.C. Code § 20-3-130.
• Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.  Indeed, if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist.  A finding of adultery is allowed where there is evidence of both the opportunity to commit adultery and the disposition to commit adultery. State of mind can be inferred from circumstances.  Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114, 118 (Ct.App. 1989);
• Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker. Patel v. Patel,  359 S.C. 515, 599 S.E.2d 114, 120 (2004);
• Limited in its force to what relevance it has, either directly or indirectly, to the welfare of the child, a parent’s morality is a proper factor for consideration in a child custody case.  Boykin v. Boykin, 296 S.C. 100, 370 S.E.2d 884, 885 (Ct.App. 1988);
• The six factors cited by the South Carolina Supreme Court in determining a reasonable attorney’s fee are (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; (6) customary legal fees for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313, 315 (1991);
• Uncooperative conduct that greatly increases the cost of litigation is a factor to be considered in an award of attorney’s fees. Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843, 857 (Ct.App. 2009).

An example of a conclusion of law that distinguishes or rejects the other party’s position:

• While the Court of Appeals in McElveen v. McElveen, 332 S.C. 583, 598, 506 S.E.2d 1, 8 (Ct.App.1998), declined to find the wife committed adultery because “there [was] virtually no evidence of a romantic or sexual relationship between the [wife and her paramour],” it is distinguishable because in McElveen, unlike the present case, there was no evidence of wife and her alleged paramour spending a night together alone.

Finally, double-check the mathematical calculations as well as all spelling.  There are some things that spell check can’t help you with, and when attorneys don’t catch such obvious mistakes, it can call into question the integrity of the entire order.

To summarize: 1) make as many credibility and evidence weighing factual findings as the testimony will support; 2) including all favorable factual findings that will support one’s position on contested issues; 3) address the other party’s position by making factual findings that explain and reject that position; 4) include every favorable legal conclusion that would justify the court’s ruling by considering which legal authority will be used to support one’s client on appeal; and 5) consider the legal authority relied upon by the opposing party and explain why it is distinguishable.  Doing this almost ensures that a reasonable family court decision will be upheld on appeal and maximizes the chance that a potentially erroneous ruling is sustaining on appeal.

When drafting orders from post-trial motions, it can be helpful to deal with the merits even if the court denies the motion on error preservation or timeliness grounds.  That way, if the appellate court finds that the lower court erred on the procedural issues in the motion, it can resolve the substantiative issues on appeal, instead of merely remanding the matter back to the family court.  For example, in Ables v. Gladden, 378 S.C. 558, 570-71, 664 S.E.2d 442(2008), the Supreme Court had to remand the issue of the mother’s entitlement to reimbursement for childcare and private school expenses because the family court denied the request based on laches but did not make factual findings on the merits of the mother’s request.

Obviously, to draft a final order in this manner, one has to have been thinking like an appellate attorney prior to drafting the order.  This is one reason I suggest every family law attorney occasionally handle family court appeals, especially appeals from his or her own trials.  I have yet to have a final order I drafted be modified on appeal, and very few of the orders I have drafted have been appealed (I believe, in part, because I draft my final orders with these goals in mind).  Further, a sizable portion of the appeals I have won or partially won I believe may have ended up differently if more care had been taken by the opposing party in the drafting of the final order.

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[1]Interestingly enough, the same judge I praise earlier in this material for having attorneys provide him proposed findings of fact and conclusions of law from which he would select to create his ruling, the Honorable Jack Alan Landis, is also the only family court judge I am aware of who has made explicit rulings in a final order as to why he found witnesses credible.  Ironically, he was reversed, in part, for mistakenly determining what testimony impacted the parties’ credibility. McCrosson v. Tanenbaum, 375 S.C. 225,242-43, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified 383 S.C. 150, 679 S.E.2d 172 (2009).  Despite this, I believe his approach to credibility determinations is to be emulated.