Thursday, May 28, 2009

Divorce Health Insurance

Health insurance is one of the big issues in divorce but couples don’t always think about until they come in to see us. The problem is one of the partners can’t continue on the existing family health insurance plan. The person can always get COBRA (few people know this acronym stands for Comprehensive Budget Reduction Act and the letter have nothing to do with health insurance) coverage for 18 to 36 months depending on the plan. The cost is still significant and there is a problem with preexisting conditions or conditions that develop during the 18 or 36 months. An article in the May 16, 2009 New York Times by Lesley Alderman entitled "Buying Health Insurance Begins With Homework" is an excellent discussion of some options other than COBRA. You can read the entire article at It is the same advice we usually give clients. I keep watch what is happening in Washington about health insurance and hope they fix the problem.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 5/28/09

Tuesday, May 26, 2009

How damaging is a custody dispute to your child?

Consider the following article:

“Children of the Family Court”

“Children are born loving their parents... After a time they begin to judge them…
Never do they forgive them.”

I wish I could remember who penned these poignant words. I did not. However, during my years as a South Carolina family court judge I would frequently quote them to hundreds of fathers and mothers who appeared before me.

I want to share some insight with you that you will find neither comforting nor validating. To be candid, I hope you find it unsettling.

After over thirty-five years of practicing family law (as an attorney, a judge and now as a family court mediator) I have witnessed firsthand the anger, bitterness, hurt and sadness experienced by wives and husbands, and fathers and mothers going through the anguish of a divorce and custody fight involving their children. From my unique vantage point as a judge I was able to view some of society’s more disturbing human traits.

Let me share this with you. If you are scheduled to appear in a family courtroom, this is what happens (the sequence of events is not necessarily essential):

• Your case may be scheduled for one day of trial. Actually, that means, at best, you will be inside the courtroom for six hours only (family courts typically run from 9:30 AM – 12:30 PM, and then from 2:00 PM to 5:00 PM).

• Your attorneys will call your witnesses to testify, and you will testify, and each side with be subject to questions from your spouse’s attorney. The ultimate objective of your spouse’s attorney is to paint you, as a spouse and a parent, in the worst light possible. The experience can be excruciating and humiliating, with strangers being made privy to your family’s most private moments.

• A guardian ad litem who is court-ordered to represent your children’s interest will most often testify; however, depending on the age of your children, they, too, may be called as a witness to testify.

• At the conclusion of your case, and perhaps several months after the trial has ended, the family court judge will enter his or her decision. And your lives and the lives of your children will then become governed by the order or decree of your family court judge, which most certainly will impact your family for many years to come.

After parents and their attorneys had entered and been seated inside my courtroom, I would make these remarks to them:

“For whatever reason you’re here in my courtroom today, please know that I’m truly sorry you’re sitting here; and I have to believe that you’d rather be anywhere on the face of this earth than sitting here listening to me. But you must understand that I didn’t invite you here…you brought your case to us, and by sheer serendipity (the luck of the draw), your case was placed on my trial docket to be heard by me today.

I also know that custody of your children remains an issue that you haven’t been able to resolve. So today, you must realize that I’m the parent of your children, because you’re asking me to make those parenting plan decisions for you. It’s not my choice…it’s yours. But I promise you this – I will pay close and careful attention to your testimony, and I will make the best possible decision I can make for your children based on what you tell me today from this witness stand. Then I will forget your names and go on to another case tomorrow.

If that sounds harsh, I apologize. I’m trying to be truthful with you both. But I also need to remind you, as I have to remind myself every day, that in the lives of our children, when this day comes to an end, this day will be gone from our collective lives forever. So if your children spent yesterday, or even this morning, upset and concerned over their parents’ divorce, and if your children went to sleep last night fearful of what their own lives would be like after tomorrow, then we have all robbed your children of these days…forever. Shame on us.

I’m saying this to you right now because before I begin your trial I want to recess your case and let you step outside my courtroom with your attorneys, and I want you to take a step back from this brink, and re-think whether you want to be your children’s parents today or would you prefer that they become, for lack of a better description…children of the family court.”

Often, and fortunately, these comments would serve as the catalyst to the parents’ settlement, which included their agreement as to how they chose to co-parent their children in their post-divorce world.

If it sounds comforting to you that these parents ultimately realized the risks involved with a stranger making their own child’s parenting decisions, not so fast. That’s only part of this difficult equation – that part dealing with the parent-versus-parent relationship. What about the even thornier and ultimately more complex relationship of children-versus-parents?

While a child’s parents were locked in the throes of their own personal turmoil, what questions were these parents asking regarding how their child or children were coping with their own pain and anguish? Please carefully re-read the words at the very beginning of my comments, and you’ll find your answer.

Children, perhaps those even in their pre-teen years, whose parents are going through this marital anguish, become the unknowing (and perhaps even more disturbing, the knowing) victims of their parents’ dysfunction. A parent will often seek their child’s allegiance in a variety of cunning ways, depending on the age of the child, in order to gain some advantage in the “custody wars”. Children then quickly realize they have no input, no voice, no control in the decisions which will affect them, and they are forced into a no-win position: “choose” one parent over the other and the child feels instant repercussions from this decision, which, most prominently, amounts to the child’s overwhelming sense of guilt in conveying a not so subtle message that he or she loves one parent more than the other. The effects are devastating, long-lasting, and many times, permanent.

I could go on, but this seems to me to be a good stopping point for now. However, I need to leave you with one last thought to ponder.

The author, Pat Conroy, wrote these haunting lines in his novel, “The Prince of Tides” –

“If your parents disapprove of you, and are cunning with their disapproval, there will never come a new dawn when you can become convinced of your own value. There is no fixing a damaged childhood.”

Thursday, May 21, 2009

Divorce Graffiti

When I was about 20 years old, I visited my sister in California. My first trip west of the Mississippi. While I was there I purchased a small book for $1.00 called "Graffiti, Selected Scawls from Bathroom Walls" collected by Robert Reisner. I recently came across the book. I looked in the table of contents to see if there were any mediation or divorce or marriage graffiti. Surprisingly, there were none. The closest was the Love topic. It in included, "Love thy neighbor but don’t get caught," "Chaste makes waste, " and "If it moves, fondle it." I went to my next source, Google, and was suprised not to find anything other than, "Two very rich people got divorced, and their lawyers lived happily ever after." I can only speculate why there is no Divorce Graffiti. Has the internet replaced the bathroom wall? Has graffiti become an spray art form and divorce does not work on a subway car? If you have seen some divorce graffiti, share is with me or let me know why you think there is so little divorce graffiti.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 5/21/09

Monday, May 18, 2009

Grounds for Divorce in South Carolina

There are 5 grounds for divorce in South Carolina. Those are

1) Adultery
2) One Year Separation
3) Abandonment
4) Physical Cruelty
5) Habitutal Drunkeness

Thursday, May 14, 2009

Divorce Script

Recently, I was asked to do a presentation at an organization’s meeting. I was surprised to get an email saying that I would be getting my script sent to me. I emailed back and asked if there would be teleprompter too? Low and behold, a few days later I got a script of the remarks of everyone speaking at the meeting! I printed it out in a 24 point and was ready to go. I casually mentioned this incident to a friend who advised me that lots of organizations are now doing this. As always I wanted to apply what I learned to divorce mediation. I wondered what it would be like if we had a script for each divorce? Would it make the process easier or harder? We probably will never know.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 5/14/09

Friday, May 08, 2009

Protection from Foreclosure in South Carolina-Do you qualify?

The Supreme Court of South Carolina has suspended foreclosures on mortgages which may be eligible for modifications. See entire order below.

Ex Parte Federal National Mortgage Association, Petitioner.

In Re Federal National Mortgage Association (“Fannie Mae”) Loans Subject to Foreclosure Sale.


Petitioner asks this Court to issue an ex parte temporary injunction1 or restraining order “enjoining all judicial officials in South Carolina conducting foreclosure sales on May 4, 2009 (or the next judicial sales dated) from dismissing all eligible one- to four-unit owner occupied properties securing Fannie Mae portfolio mortgage loans and MBS pool mortgage loans guaranteed by Fannie Mae for which there is a foreclosure judgment.” It asserts that this injunction is necessary to avoid undue costs if these foreclosure actions are dismissed rather than stayed or postponed based on the fact that the underlying loans may be subject to modification under the Homeowner Affordability and Stability Plan, the Home Affordable Modification Program (HMP), and the United States Treasury Supplemental Directive 09-01. It also states that, “absent injunction, mortgagors eligible for relief under the HMP program could be denied their right to participate because their property was sold at the foreclosure sale. This qualifies as irreparable injury for which the court should provide redress in the form of a temporary injunction.”

While I am very troubled by the ex parte nature of this petition2, I grant a temporary restraining order (TRO) preventing the foreclosure sale of any property arising out of a loan owned or guaranteed by petitioner or Freddie Mac or held by a servicer who has signed an agreement to participate in the HMP3. If a sale has already taken place today prior to issuance of this order, this TRO shall stay the master-in-equity, circuit court judge or special referee from taking any further action to complete the sale including the issuance of a deed to the purchaser.

By May 15, 2009, the plaintiff in every mortgage foreclosure action stayed by this order shall serve on all other parties to the action (including petitioner and/or Freddie Mac as appropriate) an affidavit setting forth its belief whether the loan is subject to modification under the HMP. If the affidavit indicates that the loan is subject to modification under the HMP, the foreclosure shall be stayed pending a determination if the loan will be modified. If the loan is modified, the foreclosure action shall be dismissed. If the loan is not modified, the foreclosure may proceed.

If the affidavit indicates that the loan is not subject to modification under the HMP, the TRO will be lifted unless petitioner, Freddie Mac or another party serves and files a counter affidavit asserting that the loan is subject to modification under the HMP by May 22, 2009. If a counter affidavit is timely filed, the TRO will remain in effect until the master-in-equity or circuit court judge determines if the HMP is applicable to the loan. The lower court shall insure that these determinations are made in an expeditious manner.

If the loan is determined not to be subject to modification under the HMP, the TRO shall be lifted and the foreclosure may continue. If the lower court determines that the loan is subject to modification and the loan is modified, the foreclosure action shall be dismissed. If the lower court determines that the loan is subject to modification but the loan is not subsequently modified, the TRO shall be lifted and the foreclosure may continue.


s/Jean Hoefer Toal

Columbia, South Carolina
May 4, 2009
4:50 p.m.

Alimony in South Carolina

In The Court of Appeals

Linda Huff Browder, Appellant,


Cecil Ray Browder, Jr., Respondent.


Appeal From Lexington County
Richard W. Chewning, III, Family Court Judge


Opinion No. 4524
Heard March 5, 2009 – Filed March 26, 2009




J. Michael Taylor, of Columbia, for Appellant.

J. Mark Taylor and Katherine Carruth Link, of West Columbia, for Respondent.

PIEPER, J.: In this appeal of a divorce decree, Linda Huff Browder (Wife) asserts the family court erred in: (1) denying her request for alimony; (2) failing to hold Cecil Ray Browder, Jr. (Husband) in contempt; (3) valuing and apportioning the marital property; and (4) denying her request for attorney's fees. We affirm in part, reverse in part, and remand.


Husband and Wife were married on December 15, 1973, and last resided together on November 22, 2003, in Lexington County, South Carolina. Prior to the filing of the instant matter, they were married for thirty-one years and had three children.

During the marriage, Husband worked as a salesman earning approximately $80,000 to $130,000 per year, while Wife was the primary caregiver of their three children. In 1992-93, when their youngest child was twelve, Wife began working part-time and eventually obtained certification from Midlands Technical College for floral design. Wife earned roughly $8.00 per hour through her part-time employment. Significant assets were acquired during Husband's higher income years which included a large home on Lake Murray, two parcels of property, and a home in Columbia, South Carolina, purchased for the use of their children while attending college (the College Street property).

Wife filed for divorce on October 30, 2003, citing the statutory grounds of habitual drunkenness and adultery. Prior to trial, a temporary order was issued ordering Husband to pay $1,750 per month in alimony to Wife. The temporary order also required Husband to provide a detailed accounting of the proceeds received from the sale of the College Street property.

On August 4, 2004, Wife claimed Husband failed to timely account for his handling of the College Street property proceeds and requested that Husband be held in contempt. After issuing a rule to show cause on August 9, 2004, the court ultimately found Husband adequately accounted for the funds at issue and declined to hold him in willful contempt.

The underlying case was heard on February 3, 2005, and March 10, 2005, before the Honorable Richard W. Chewning, III. At the time of the hearing, Husband was fifty-eight and was earning approximately $83,000 per year plus benefits as a salesman. Wife was fifty-four and was working part-time earning $8 per hour at a local floral shop. During the hearing, Husband admitted to committing adultery but denied Wife's allegations of habitual drunkenness. The parties stipulated to a 50/50 division of the marital property and offered expert testimony as to the appraised value of particular marital property. Specifically, Wife asserted the appraised value of their river home in Edisto was $105,000, while Husband offered testimony that the appraised value of the property was $73,000. The marital home, which was listed for sale prior to the hearing, was appraised at around $700,000 and the parties agreed to split the proceeds equally upon the sale of the home.

In its final order dated August 1, 2005, the court granted Wife a divorce from Husband on the statutory ground of adultery and denied Wife's request for alimony reasoning that Wife's receipt of significant liquid assets in concert with her ability to be employed on a full-time basis did not warrant an award of alimony. The court divided the marital estate equally[1] and concluded that each party would be responsible for paying his or her own attorney's fees. However, Husband was ordered to reimburse Wife for her private investigator's fees and costs. Wife timely filed a motion to alter or amend the judgment, which the court granted in part to correct various mathematical and scrivener's errors. This appeal followed.


In appeals from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). Despite this broad scope of review, we remain mindful of the findings of the family court judge, who saw and heard the witnesses, and was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id.


Wife argues the family court erred in failing to award alimony. We agree.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dearybury v. Dearybury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002); see also McKnight v. McKnight, 283 S.C. 540, 543, 324 S.E.2d 91, 93 (Ct. App. 1984) (stating the decision to grant or deny alimony rests within the discretion of the family court and will not be disturbed on appeal absent an abuse thereof). An abuse of discretion occurs if the court's ruling is controlled by an error of law or if the ruling is based upon findings of fact that are without evidentiary support. Sharps v. Sharps, 342 S.C. 71, 79, 535 S.E.2d 913, 917 (2000).

"The purpose of alimony is to provide the ex-spouse a substitute for the support which was incident to the former marital relationship." Love v. Love, 367 S.C. 493, 497, 626 S.E.2d 56, 58 (Ct. App. 2006). "Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage." Craig v. Craig, 358 S.C. 548, 554, 595 S.E.2d 837, 840 (Ct. App. 2004) (quoting Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001)). The objective of alimony should be to insure that the parties separate on as equal a basis as possible. Patel v. Patel, 347 S.C. 281, 291, 555 S.E.2d 386, 391 (2001). Thus, "[i]t is the duty of the family court to make an alimony award that is fit, equitable, and just if the claim is well founded." Allen, 347 S.C. at 184, 554 S.E.2d at 424.

In determining an award of alimony, the court is required to consider and give weight in such proportion as it finds appropriate to each of the following factors: (1) duration of the marriage; (2) physical and emotional health of each spouse; (3) educational background of each spouse; (4) employment history and earning potential of each spouse; (5) standard of living established during the marriage; (6) current and reasonably anticipated earnings of both spouses; (7) current and reasonably anticipated expenses and needs of both spouses; (8) marital and nonmarital properties of the parties; (9) custody of the children; (10) marital misconduct or fault of either or both parties; (11) tax consequences as a result of the form of support awarded; (12) existence and extent of any prior support obligations; and (13) such other factors the court considers relevant. S.C. Code Ann. § 20-3-130(C) (Supp. 2008). "Fault is an appropriate factor for consideration in determining alimony in cases where the misconduct affected the economic circumstances of the parties or contributed to the breakup of the marriage." Craig, 358 S.C. at 554, 595 S.E.2d at 841 (quoting Smith v. Smith, 327 S.C. 448, 463, 486 S.E.2d 516, 523-24 (Ct. App. 1997)).

We find the family court's denial of alimony in the instant case was an abuse of discretion. Here, the family court denied Wife's request for alimony reasoning that Wife's receipt of significant liquid assets in conjunction with her ability to be employed on a full-time basis would alleviate her financial need. The court further found that "the proximity of the parties' net incomes does not warrant an award of alimony." However, the record fails to support the family court's factual finding that the parties' net incomes are in close proximity. Rather, at the time of the final hearing, the record indicates that Wife was working part-time earning $8 per hour, while Husband was earning $6,912 per month plus benefits. By the time of the hearing on Wife's motion to alter or amend, Wife had attained full-time employment at the rate of $10 per hour. The significant disparity between incomes is clearly evidenced by the record. Accordingly, the family court based its decision, in part, upon a finding of fact that is without evidentiary support.

Moreover, the court's emphasis on the speculative date of Husband's retirement was error. Although retirement may play into the factor of anticipated earnings, Husband was fifty-eight and gainfully employed at the time of trial. Any change in circumstances regarding Husband's retirement may warrant a modification of alimony when that event occurs; however, consideration of this anticipated but speculative occurrence at this time was inappropriate.[2] See Rimer v. Rimer, 361 S.C. 521, 528, 605 S.E.2d 572, 576 (Ct. App. 2004) ("[W]hen the effect of anticipated changes is not readily ascertainable, it is inappropriate for the family court to speculate as to the effect of such anticipated changes.").

Based upon our own view of the facts, we conclude an award of alimony is appropriate. We have considered all of the previously cited factors regarding alimony. We place significant weight in this case on five of those factors: (1) duration of the marriage; (2) earnings of each spouse; (3) educational background of each spouse; (4) employment history and earning potential; and (5) marital misconduct or fault of either party. The fact that this was a thirty year marriage in which Wife spent the bulk of the marriage caring for their children weighs heavily in favor of alimony. Additionally, Husband has a college degree and over thirty years of experience in sales, while Wife is a high school graduate and has little to no full-time work history; in this same regard, we have noted the disparity between the incomes of Husband and Wife. While we recognize that the purpose of alimony is not to penalize one party and reward the other, we also cannot ignore the fact that Husband admitted to committing adultery. Therefore, under our view of the evidence, we find an award of alimony is warranted. See Patel, 347 S.C. at 291, 555 S.E.2d at 391 (stating the objective of alimony should be to insure that the parties separate on as equal a basis as possible). Accordingly, we reverse the family court's denial of alimony and remand the matter for a determination of an appropriate award of alimony, including retroactive alimony. See Patel v. Patel, 359 S.C. 515, 531, 599 S.E.2d 114, 122 (2004) (holding wife was entitled to retroactive alimony when alimony was awarded on remand).

Wife next asserts the court erred in failing to hold Husband in contempt. We disagree.

On appeal, a decision regarding contempt is not subject to reversal absent an abuse of discretion. Brandt v. Gooding, 368 S.C. 618, 627, 630 S.E.2d 259, 263 (2006). An abuse of discretion occurs if the court's ruling is controlled by an error of law or if the ruling is based upon findings of fact that are without evidentiary support. Davis v. Davis, 372 S.C. 64, 82, 641 S.E.2d 446, 455 (Ct. App. 2006).

Contempt results from the willful disobedience of a court order. Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975). Willful disobedience requires an act to be "done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law." Spartanburg Co. Dep't of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988). A party seeking a contempt finding for violation of a court order must show the order's existence and facts establishing the other party did not comply with the order. Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d 515, 518 (Ct. App. 2008).

Wife asserts Husband's failure to provide documentation of three accounts paid from the proceeds of the sale of the College Street property amounted to willful contempt of the court's order for an accounting. At trial, Husband explained that he repeatedly requested records of the accounts at issue to no avail. He further explained that the records were sent to the marital residence and that he was unable to find the pertinent information that Wife requested. In addition to his efforts to obtain the records, Husband's testimony at trial thoroughly explained the amounts and debts of the disputed accounts, which were accumulated prior to the instant action to pay for the parties' expenses as well as the expenses of their children. Based on this evidence, the court found Husband adequately explained the allocation of the proceeds of the College Street property and concluded that the debts were marital. This finding is supported by the evidence. Accordingly, the denial of a contempt finding by the court was not an abuse of discretion.

Turning to the next issue on appeal, Wife asserts the court erred in its valuation and apportionment of the marital property. Specifically, Wife contests (1) the valuation of the Edisto River property, (2) the valuation of Husband's personal property, and (3) the assignment of Husband's credit card debt as marital. We disagree.

In making an equitable distribution of marital property, the court must: (1) identify the marital property to be divided between the parties; (2) determine the fair market value of the property; (3) apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and (4) provide for an equitable division of the marital estate, including the manner in which the distribution is to take place. Gardner v. Gardner, 368 S.C. 134, 136, 628 S.E.2d 37, 38 (2006). Generally, marital property subject to distribution is valued as of the date the marital litigation is filed or commenced. Id. The court has broad discretion in valuing marital property. Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006). As such, "[the] court may accept the valuation of one party over another, and the court's valuation of marital property will be affirmed if it is within the range of evidence presented." Id.

Here, the parties stipulated to a 50/50 division of the marital assets. Among the assets to be apportioned was the River House property on Edisto River. Wife asserts the court's valuation of the property at $73,000 was an abuse of discretion. Both parties offered expert testimony from an appraiser as well as their own appraisal reports in valuing the River House property. Husband's appraiser valued the property at $73,000, and Wife's appraiser valued the property at $105,000. Despite Wife's assertion the property is worth more based on other comparable properties in the area, Husband's expert testified the valuation was adjusted to reflect the differences in the comparable properties. Because the court may accept one party's valuation over another and the valuation based on Husband's appraisal was within the evidence presented at trial, we find no abuse of discretion. See Pirri, 369 S.C. at 264, 631 S.E.2d at 283 (stating the court's valuation of marital property will be affirmed if it is within the range of evidence presented).

As to Husband's personal property, Wife asserts Husband's boat, valued at $2,500, and a DVD player, valued at $100, were improperly excluded from the court's valuation of the marital estate. This issue was not ruled upon by the trial court nor was it raised in Wife's Rule 59(e) motion to alter or amend; thus, it is not preserved for our review. See Lucas v. Rawl Family Ltd. P'ship, 359 S.C. 505, 511, 598 S.E.2d 712, 715 (2004) (stating an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review); Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413 (Ct. App. 1987) (finding husband's argument that the court erred in failing to consider certain items in equitable distribution was not preserved for appellate review where the issue was not raised to and ruled upon by the trial court).

As to the credit card debt in connection with the disputed funds from the College Street property, this issue was discussed in regard to the contempt finding above. As noted, there is sufficient evidence in the record to support the finding that these debts were marital. Husband's testimony revealed these debts, which had been used to pay the couple's monthly expenses as well as the expenses of their children while in college, were accumulated over time prior to the parties' separation. Additionally, despite Wife's assertion that it cannot be presumed that the debts were incurred before the filing of the instant action, the evidence indicated the disputed balance transfers took place in May and August 2003, prior to Wife's filing for divorce in October 2003. The proceeds from the sale of the College Street property were received on November 3, 2003, and the payments on the balance transfers occurred between November 5, 2003, and November 11, 2003. Accordingly, the court's inclusion of these debts as part of the marital estate was not an abuse of discretion.

Lastly, Wife asserts the court erred in failing to award attorney's fees. We agree.

An award of attorney's fees lies within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004). In determining whether to award attorney's fees, the court should consider each party's ability to pay his or her own fees, the beneficial results obtained by counsel, the parties' respective financial conditions, and the effect of the fee on the parties' standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).

Where the substantive results achieved by counsel are reversed on appeal, an award of attorney's fees is subject to reversal. Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993). In light of our disposition as to alimony, the results achieved by Wife's counsel were beneficial. Accordingly, we find an award of fees is appropriate and remand the issue to the family court for a determination of reasonable fees and costs.


For the foregoing reasons, the order of the family court is


HEARN, C.J., and LOCKEMY, J., concur.

Medical Malpractice

In The Court of Appeals

Robert Guinan, Appellant, v. Tenet Healthsystems of Hilton Head, Inc, et al., Respondents.


Guinan suffered from neck, shoulder, and other pain, and received epidural injections of pain medication in his cervical spine on March 13, 2002, from Dr. Philip James Zitello (Zitello). After the injection, Guinan began experiencing chest pains and weakness in his legs. As a result, Guinan contacted Dr. Gaston O. Perez (Perez), his family physician. Perez examined Guinan, administered some medications, and instructed Guinan to go to the emergency room at Hilton Head Regional Medical Center (Hilton Head Regional).[2] Perez contacted the emergency room and explained Guinan's relevant medical history. Additionally, Perez contacted Zitello, and Zitello agreed to meet Perez and Guinan at the emergency room.

Perez admitted Guinan into the emergency room and ordered a neurology consult. Dr. Harvinder Kohli (Kohli) performed the neurology consult and ordered the administration of a blood thinner to treat a suspected spinal cord occlusion or clot. Kohli called Memorial Health University Medical Center (Memorial Health) in Savannah, Georgia, to discuss the case with a neurosurgeon and spoke with Dr. James Lindley (Lindley).[3] Lindley suspected Guinan's symptoms were related to a hematoma (or a bleed), rather than a clot. As a result, the blood thinner was discontinued, and Guinan was transported to Memorial Health. Upon arrival, Guinan was given a MRI, which revealed the presence of a hematoma in Guinan's cervical and thoracic spine. Lindley successfully evacuated the hematoma.

Guinan brought a medical malpractice action against Hilton Head Regional, Kohli, and Zitello. Guinan alleged Hilton Head Regional: (1) failed to properly diagnose the hematoma; (2) failed to properly administer drugs; (3) administered drugs known to be or should have known to be dangerous to Guinan; (4) failed to warn Guinan of the danger presented by the drugs; (5) failed to require Zitello to be present in the emergency room; (6) failed to obtain a neurological consult; (7) failed to exercise the degree of care required of physicians in an emergency room setting; (8) failed to have proper diagnostic equipment available; and (9) failed to immediately transfer Guinan to Memorial Health for emergency care. As to Kohli, Guinan asserted he: (1) failed to properly diagnose the hematoma; (2) failed to properly treat Guinan; (3) increased the harm to Guinan by administering drugs he knew or should have known would harm Guinan; (4) failed to consult a neurosurgeon prior to administering the blood thinner; (5) failed to exercise the degree of care required by the circumstances; and (6) failed to immediately transfer Guinan to Memorial Health for emergency care. Lastly, Guinan claimed Zitello: (1) failed to properly administer the epidural injection; (2) failed to recognize the symptoms of a failed epidural injection; (3) failed to warn and inform Guinan of the symptoms of an epidural injection and warn Guinan of possible paralysis; (4) failed to attend to Guinan at the emergency room; (5) failed to see that Guinan was immediately sent to surgery; (6) failed to exercise the degree of care required of physicians in the profession; and (7) failed to warn and inform Guinan of the risks of an epidural hematoma and other risks of the epidural injection.

The first scheduling order in this case was dated September 7, 2005, and provided an April 15, 2006, discovery deadline. On May 26, 2006, an amended scheduling order was issued extending the deadline to June 1, 2006. After a motions hearing on July 12, 2006, a final scheduling order was issued extending the deadlines for another forty days. The scheduling order also stated the defendants could not file motions for summary judgment until the expiration of the discovery deadlines.

On October 2, 2006, after the discovery deadlines had expired, the master heard the defendants' motion for summary judgment. Sixteen days later, the master issued an order granting the defendants' motion. The master found Gupta testified he was not an expert in the field of neurology or emergency medicine; had never been involved in the diagnosis and treatment of a patient with spinal hematoma; had no criticisms of the nursing staff at the emergency room, or of Kohli; stated Kohli administered the standard of care relative to the care and treatment of Guinan; did not have any material experience in an emergency room in the United States; was unwilling to comment on the performance of emergency room physicians; and did not offer any opinion that any act of the defendants was the proximate cause of any of Guinan's injuries.

Additionally, the master found the time for discovery had expired, and Guinan had a full and fair opportunity to complete discovery. Accordingly, the master granted defendants' motion for summary judgment because Guinan was without expert testimony to create a genuine issue of material fact with respect to his claims of medical negligence against the defendants. This appeal followed.

Standard of Review

"Since it is a drastic remedy, summary judgment 'should be cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues.'" Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991) (quoting Watson v. S. Ry. Co., 420 F. Supp. 483, 486 (D.S.C. 1975)). An appellate court reviews the grant of summary judgment under the same standard applied by the circuit court. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). The circuit court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." David, 367 S.C. at 250, 626 S.E.2d at 5. Summary judgment "must not be granted until the opposing party has had a full and fair opportunity to complete discovery. Nonetheless, the nonmoving party must demonstrate the likelihood that further discovery will uncover additional relevant evidence and that the party is 'not merely engaged in a "fishing expedition."'" Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) (quoting Baughman, 306 S.C. at 112, 410 S.E.2d at 544) (internal citation omitted).


I. Incomplete Discovery

Guinan contends discovery was incomplete because Hilton Head Regional failed to produce x-rays until the day of the summary judgment hearing and he had not received the emergency telephone records from Hilton Head Regional or the phone company.[4] We disagree.

In Dawkins v. Fields, 354 S.C. 58, 71, 580 S.E.2d 433, 439-40 (2003), our supreme court rejected Dawkins' "argument that summary judgment was premature because they did not have a full and fair opportunity for discovery." A party claiming summary judgment is premature because they have not been provided a full and fair opportunity to conduct discovery must advance a good reason why the time was insufficient under the facts of the case, and why further discovery would uncover additional relevant evidence and create a genuine issue of material fact. Id. at 71, 580 S.E.2d at 439-40.

Here, Guinan alleges the phone records would reveal how long the blood thinner was administered, and the x-rays would prove Guinan did not have any vascular problem early on, leaving epidural hematoma as the only possible diagnosis. However, the length of time the blood thinner was administered had no adverse effect on Guinan's condition. Accordingly, we believe the master did not err in hearing the defendants' summary judgment motion because the discovery deadlines had expired and Guinan was afforded a full and fair opportunity to conduct discovery. Moreover, on appeal, Guinan fails to demonstrate further discovery would uncover additional relevant evidence or create a genuine issue of material fact.

II. Gupta's Testimony

Guinan maintains the master erred in granting the defendants' general summary judgment motion when Gupta's testimony "clearly implicated" the defendants in deviations from the standard of care. We disagree.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Additionally, medical malpractice lawsuits have specific requirements that must be satisfied in order for a genuine factual issue to exist. Specifically, a plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances, and (2) that the defendants departed from the recognized and generally accepted standards. Also, the plaintiff must show that the defendants' departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages. The plaintiff must provide expert testimony to establish both the required standard of care and the defendants' failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.

(parts omitted)
Gupta testified he did not have any criticisms of how Zitello administered the cervical epidural steroid injection. However, when asked what he would have done if he had been in Zitello's position, he replied:

A: If I get a call from a physician regarding just the chest pain itself, I would rather tell them to go ahead with the cardiac even to work. But I would certainly ask him if the patient is having any shooting pain in the upper extremities, or is he developing any weakness in the leg. In that event, I would tell the physician who's calling me that I will be right over, and I will see the patient myself.

Q: And that would be the standard of care?

A: That would be my standard of care.

Q: You think that would be the standard of care for someone in your profession that's doing this?

A: I think so.

We find summary judgment was proper because Guinan failed to provide evidence, through his expert witness, showing the defendants departed from the recognized and generally accepted standards of average, competent practitioners in their field of medicine under the same or similar circumstances. The most damaging portion of Gupta's testimony is his statement that Zitello deviated from Gupta's personal standard of care; however, we do not find that testimony sufficient to withstand summary judgment because it does not state Zitello deviated from the generally accepted standard of care. More importantly, Guinan failed to show defendants' alleged departure from the generally recognized practices and procedures was the proximate cause of his injuries.


Accordingly, the master-in-equity is


THOMAS and GEATHERS, JJ., concur.

Supreme Court Justice Retires

U.S. Supreme Court Justice David Souter plans to retire at the end of the court's current term, National Public Radio reported Thursday.

Citing what it called reliable sources, NPR said Souter, 69, has informed the White House of his decision and is expected to remain on the bench until his successor has been confirmed.

A spokeswoman for the court said Thursday Souter had "no comment on these reports that he is planning to resign," The New York Times reported.

The court has wrapped up presentation of oral arguments for the term and will issue decisions until the end of June.

If the report is accurate, Souter's retirement will give President Barack Obama his first opportunity to appoint a justice to the Supreme Court.

Such a pick would not likely change the ideological composition of the court, NPR said. Souter -- who was appointed by former President George H.W. Bush --- normally votes with the more liberal justices.

Sunday, May 03, 2009

Divorce Client Frustrations with Attorneys

With the current recession and increased stresses involved with divorce and family law cases, I am curious as to what the average person's complaint with how attorneys are dealing with their concerns. What can attorneys do to help clients cope? What are the biggest complaints when dealing with attorneys in divorce and family law cases? I am seeking constructive criticism?