Crossland v. Crossland, (SC Supreme Court, filed July 2, 2014)

Crossland v. Crossland is a divorce case decided by the South Carolina Supreme Court on July 2, 2014. This case was tried in the Family Court, reversed on appeal by the South Carolina Court of Appeals, and then taken up to the State Supreme Court.

Crossland involves issues of alimony, equitable distribution of marital property, and attorney’s fees.

Every divorce case has unique facts. Here, the main facts are as follows:
1. This is an almost 10-year marriage,
2. Husband was 76 and wife was 62 at time of divorce hearing,
3. Husband had some pre-marital property and bank accounts,
4. Both parties had various health problems,
5. The couple had lived primarily on the husband’s retirement income during marriage, and
6. Husband tried to hide some assets during the divorce case.

The Family Court awarded the wife $958.50 per month alimony, gave husband 60% and wife 40% of the marital property, and awarded $16,024.50 to the wife for attorney’s fees.

The Court of Appeals reversed the Family Court’s order. The Court of Appeals found that the Family Court should have imputed the wife’s potential Social Security income, that property should have been divided 70/30 instead of 60/40, and remanded the attorney fee issue to the Family Court.

In its decision, the South Carolina Supreme Court reversed the Court of Appeals and reinstated the Family Cout order.

“An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion.”

Here, Wife postponed receiving Social Security benefits until she reached 65 rather than take a lesser amount beginning at 62.

The Court of Appeals had equated wife’s decision to postpone applying for Social Security with voluntary underemployment such that wife’s ELIGIBILITY to receive benefits should be imputed as income. But the Supreme Court disagreed. The Family Court was correct in considering the wife’s ACTUAL income at the time of the divorce trial.

The Supreme Court does note that the husband can petition for a modification of alimony based on a substantial change in circumstances when the wife reaches age 65 and ACTUALLY receives her Social Security benefits.

As to equitable distribution, the Supreme Court found that the Family Court properly considered all equitable distribution factors in awarding the 60/40 split while the Court of Appeals relied “solely” on only one factor – the parties’ direct financial contributions to the marital estate. Thus the Supreme Court reinstated the Family Court’s 60/40 split.

Because the Supreme Court found in favor of the wife on the alimony and equitable distribution issues, the Court reinstated the $16,024.50 attorney fee award. (Factors to consider in attorney fee award: “(1) the party’s ability to pay his/her own attorney’s fees, (2) beneficial results obtained by the attorney, (3) the parties’ respective financial conditions, and (4) effect of the attorney’s fee on each party’s standard of living.”).

Parental Alienation

I hear a common complaint. “My wife [or husband, ex-wife, ex-husband] is alienating my children from me.”

True parental alienation can be a terrible problem in a divorce or other family court case. The alienated parent often feels helpless in the situation. Alienation can affect parent/child relationships for years to come – even for a lifetime.

When confronting alleged parental alienation, I often have clients answer several questions:

  1. What exactly is the other parent doing or saying?
  2. How are the other parent’s actions affecting the children?
  3. How intent is the other parent in continuing the alienating behavior?

Depending on the answers to these questions, and taking the entirety of the situation into consideration, a parent may take various steps to call attention to and [hopefully] end the alienating behavior:

  1. Family counseling;
  2. Psychological evaluations;
  3. Mediation;
  4. Custody litigation.

For more information on this topic, I highly recommend the book Divorce Poison by Dr. Richard Warshak.

Alternatives to Hotly-Contested Family Litigation

There are alternatives to the hotly-contested divorce or custody battle so common in family court. Alternative dispute resolution options such as negotiation and mediation can provide parties with an opportunity to resolve their dispute on their own terms rather than having a judge decide the case.

Resolving a case outside of litigation always requires compromise on the part of both parties. In my opinion, some of the wisest advice about compromise comes from a Calvin & Hobbes comic strip. Calvin asks Hobbes, “What do you think is the best way to get what you want? Is it better to hold fast and never back down, or to compromise?” Hobbes replies, “I suppose it’s best to hold fast when you can, and compromise when you need to.” Calvin concludes, “That’s a lot more mature than I think I care to be.” Indeed, resolving a family case outside of court requires a level of maturity that can be a challenge.

Mediation is the most common form of alternative dispute resolution. Mediation is usually conducted with both parties and their attorneys present, often in separate rooms from each other. The mediator visits back and forth between the parties to attempt to facilitate settlement of the case. Mediation is a confidential process, and the mediator cannot be called as a witness at the trial of the case should mediation be unsuccessful. The mediator is neutral and cannot give legal advice. The mediator cannot decide anything in the case like a judge would do. Any agreement reached at mediation must be by mutual consent of the parties. Generally, each party pays half of the mediator’s fee unless the parties agree otherwise or the court orders otherwise. If mediation is successful, the parties will sign a written mediation agreement which will later be taken before the court to be approved by the judge and made the order of the Court.

Health and Mindfulness During Divorce

Family court cases involve deeply personal matters. Often, parties who may be otherwise healthy, stable people find themselves in deep despair or simply unable to think rationally. However, because important decisions must be made, it is incredibly important to approach a family court case in a careful and mindful manner, thinking clearly about each issue.

I recommend that clients in family court cases regularly seek mental health treatment with professional mental health providers. If a client has a particular religious persuasion, regular religious practice can also be helpful during a family court case.

Clients should also take care of their physical health during a family court case. Regular exercise and healthy eating are vital in reducing stress levels. Join a gym. Take a yoga class. Go for a run or brisk walk. Commit to a regular exercise routine.

Prayer, meditation, and/or mindfulness are also vital as you approach your family court issues. These practices are commonly recognized to reduce stress levels and to assist in clear thinking. Mindfulness is learning to be aware of the present moment, the here and now. “Though the concept originates in ancient Buddhist, Hindu, and Chinese traditions, when it comes to experimental psychology, mindfulness is less about spirituality and more about concentration: the ability to quiet your mind, focus your attention on the present, and dismiss any distractions that come your way.” (“The Power of Concentration” by Maria Konnikova, The New York Times, December 15, 2012). Mindfulness is vital in clearly seeing the reality of a family court situation and in dealing with that reality.

Stopping, Looking, and Listening for Children

Atticus had another seizure this morning at 5:53 a.m. I know this because I listen for these seizures. I listen so very carefully for them. I check in on him if his breathing changes. I feel his pillow for the flood of drool that inevitably accompanies the seizure. I watch for signs of him being grumpier than normal when he gets up in the mornings. I watch and listen.

My love for Atticus and my responsibility as his parent require me to watch and listen.

Frederick Buechner has said that loving God means at the very least stopping and looking and listening for God. Likewise, loving our neighbor means, at the very least, stopping and looking and listening for our neighbor. (See “How various forms of art and religion say ‘pay attention’” from Buechner’s Norton Lecture, October 17, 1987).

Applying Buechner’s teaching to parenting, loving our children must include stopping and looking and listening for our children.

I do a good job listening for the seizures. They are big, bad, and scary. But how well do I listen when Atticus is annoying me about something? Do I really hear him? Do I really see him?

Seven-year-old Atticus is endlessly fascinated with plants and animals (or parts of animals) that he finds while exploring outside. Do I listen to his excitement? Do I share the wonder with him? Not as much as I should. Another bug? Another feather? Really? Yes, really!

If Atticus is in a bad mood after school, do I find out why? If I do ask, and he says, “nothing,” do I pursue it further?

Stopping and looking and listening to our children takes time and requires work. Just as I look and listen for the scary seizure, loving Atticus requires me to take the time and do the work to look and listen to him, to what he says, to what he does, to who he is.

What’s Happening with the Family Law Profession?

I hear the question often, “How can you be a divorce lawyer?” And sometimes when the stress levels get high, I wonder that myself. I wonder that further when I hear of family lawyer after family lawyer leave family law practice or leave the practice of law altogether. Just today, I learned of a really good fellow family lawyer who’s leaving private law practice. What’s going on? I don’t have a full answer, but here’s what I hear from other lawyers and know this to be true from personal experience:

1) Being a family lawyer is stressful. Family lawyers are constantly navigating high-stakes legal issues with emotional clients who are not always their most rational selves.

2) It is tough to earn a living as a family lawyer. Yes, family lawyers charge hundreds of dollars of hour. But much of that money goes toward malpractice insurance, office space, and bar dues and continuing legal education. For solo-practice and small-firm lawyers, as most family lawyers are, much time is spent on administrative matters rather than actually practicing law. You do the math.

3) The outcome of a litigated case is often not satisfying. Neither party comes away from the case happy.

In spite of these challenges, I think there are good reasons to practice family law:

1) While family law is not for the faint of heart, it offers a challenge. And helping clients through a difficult time in life is rewarding.

2) Although family lawyers don’t earn millions of dollars in a single case as some other lawyers might, a family lawyer with a good business sense can earn a good income.

3) Alternative dispute resolution methods such as negotiation and mediation are becoming more prevalent in family law. Parties to a family dispute have the opportunity to hammer out a resolution in their own case rather than requiring a judge to decide.

With determination and creativity, family law can still be rewarding work.

Clear Communication

Lawyers are ethically obligated to communicate with their clients. To most lawyers, this means returning telephone calls, answering emails, and notifying clients when something big happens in the case. However, I think that the duty to communicate goes beyond that. I think the duty to communicate is also a duty to communicate clearly.

Everyone has heard the lawyer who likes to hear the sound of his own voice. He goes on and on using big legal-sounding words. What he should be doing is making sure his client understands what the heck he is saying.

In his work De Oratore, Cicero said, “… in oratory the very cardinal sin is to depart from the language of everyday life and the usage approved by the sense of the community.”

To the lawyer, be clear in communications. Be understandable. Keep communications simple and less confusing. Clients will understand what you are saying, and you will better fulfill your ethical duty to communicate.

To clients, tell your lawyer when you do not understand. Get your lawyer to explain things to you.

To my own clients reading this blog, take me to task if I am not communicating clearly with you. Ask me until I have explained things so that you understand.