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“It’s been a long, a long time coming, but I know, oh-oo-oh, A change gon’ come, oh yes, it will.” “A Change Is Gonna Come” by Sam Cooke.

Is a change coming to custody law in South Carolina? The concurring opinion of the Honorable Stephanie P. McDonald in the recent case of Samuel James Tomlinson v. Jenna M. Melton, (f/k/a) Jenna M. Tomlinson, Appellate Case No. 2016-002329, would seem to suggest so.

A little background before we dive into the recent decision of the South Carolina Court of Appeals. South Carolina law, while allowing for family courts to award joint or divided custody, disfavors such custody arrangements and states that is should only be awarded under exceptional circumstances. See Clark v. Clark, 423 S.C. 596, 606, 815 S.E.2d 772, 777 (Ct. App. 2018).

It is with this understanding of South Carolina law that we dive into the recent S.C. Court of Appeals’ decision. After a three-day trial, the family court awarded joint custody to the parents with a week-on/ week-off visitation schedule. The father appealed alleging that joint custody was not in the best interest of the child. The Court of Appeals agreed, reversed the decision of the trial court and remanded the case to the family court for the determination of primary custody and child support.

While agreeing with the decision to reverse and remand the case, Judge McDonald issued a concurring opinion indicating that a change may be a coming to South Carolina Custody law. In her concurring opinion, Judge McDonald stated:

I believe it is time for our supreme court to reconsider this language disfavoring joint custody—along with any requirement that our family courts find “exceptional circumstances” to justify joint custody awards—to alleviate any concerns our family courts may have regarding the circumstances in which they may award “joint or divided custody” pursuant to the legislature’s grant of jurisdiction in § 63-3-530(A)(42).

In Judge McDonald’s opinion, South Carolina law requiring the family court to find exceptional circumstances to award joint custody at odds with S.C. Code Ann. 63-5-30, which provides the following:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

Does Judge McDonald’s concurring opinion in Tomlinson indicate a change is coming to South Carolina’s custody laws? We will have to wait and see.

In my previous blog post, An Overview of Divorce Law in South Carolina, I discussed the grounds for divorce, jurisdiction and venue. This week I will give you an overview of the procedure for filing for divorce and a general timeline of when things occur. The timeline below is a general timeline. Each case is different. Some cases conclude quickly, while some last for over a year or more.

Day 1.                                    Filing the Pleadings.

To begin a divorce in S.C., you file a Summons and Complaint in the Clerk of Family Court’s Office in the appropriate county. The filing fee is currently $150.00.

Depending on the facts and circumstances of your case, you may want to file a motion for temporary relief at the same time you file the summons and complaint. The motion filing fee is currently $25.00. I’ll discuss motions for temporary relief in a later post.

Day 2.                                    Serving the Pleadings.

The next step is to have the pleadings served on your spouse. There are several ways to have someone served but the most common is the have him/her served personally by a process server. A process server is a company or individual who will physically deliver the pleadings to your spouse. Your spouse will have thirty (30) days from the date of service to file an answer or other responsive pleading.

Day 7 – Day 30.                  Temporary Hearing.

If a temporary hearing is requested, a hearing will be held as quickly as possible but no later than 4 weeks from the date you filed the Summons and Complaint.  The party opposing the motion is entitled to five days’ notice of the hearing.

Day 31 – Day 90.               Discovery and Investigation.

The next couple of months in a divorce action are usually when the parties engage in written discovery, conduct depositions and retain expert witnesses. If a Guardian ad Litem has been appointed, the Guardian will conduct an initial investigation. Depending on the complexity of the case, the time for discovery could take a significantly longer amount of time.

Day 90– Day 270.              Mediation.

Within 9 months of the filing of the action, the parties have typically engaged in mediation. Mediation is mandatory in divorce actions in S.C. Mediation is a process in which a third-party (typically another attorney) meets with the parties and attempts to facilitate a settlement of the case. The parties must attend mediation before a Final Hearing can be requested.

Day 270 – Day 365.           Final Hearing.

After mediation, a final hearing can be requested. Written requests for a final hearing in this case must be delivered by a party or attorney to the Clerk’s Office within 365 days of this filing date.

If the parties reach an agreement before or at mediation, the final hearing will last about 15 minutes in which the Judge will be asked to approve the agreement and grant the divorce.

If the issues are contested, a trial before a family court judge will take place. This is where you can call witnesses and present your evidence to the Court. At the conclusion of the trial, the family court judge will issue a ruling and the case will be concluded.

Grounds for Divorce
One of the most common cases family law practitioners are presented with is an action for divorce. The first step is to determine if grounds exist for the divorce. The grounds for divorce in S.C. are (1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness; including the use of any narcotic drug; and (5) when the husband and wife have lived separate and apart without cohabitation for a period of one year.

Jurisdiction
The next step in obtaining a divorce in South Carolina is establishing jurisdiction. There are a couple of ways to establish jurisdiction.

1. If one of the parties has lived in S.C. for one (1) year before filing for divorce;

2. If both parties have lived in S.C. for three (3) months before filing for divorce. (SC Code 20-3-10)

Active Duty Military: If the service member has been continuously in S.C. for the requisite time, regardless of intent to permanently remain in South Carolina.

SIDEBAR: What do you mean I have to move out!?!?!

One of the grounds for divorce in S.C. is that the husband and wife have lived separate and apart without cohabitation for a period of one year. A situation that sometimes presents itself is when neither party wants to vacate the marital home.

Here is the scenario: John and Jane are married. Jane wants to divorce John but doesn’t want, or can’t afford, to move out of the marital home. John refuses to leave. Neither party has been abusive to the other, neither is habitually drunk, and no one has committed adultery. Jane comes into my office and says she wants to file for divorce and separate maintenance.

I explain to Jane that she cannot file for divorce because her and John have not lived separate and apart for a year. S.C. law only allows us to file for divorce when the husband and wife have lived separate and apart without cohabitation for a period of one year.

“Fine,” Jane says “then I want to file an action for separate maintenance and support.”

Jane is surprised to hear my response is that can’t. Under S.C. law, the parties must live separate and apart prior to petitioning the court for separate maintenance. Theisen v. Theisen, 394 S.C 434, 447, 716 S.E.2d 271, 277 (2011) (Living separate and apart therefore is a prerequisite to petitioning for an award of separate maintenance. Because Wife never alleged she was living separate and apart from Husband, the family court did not err in dismissing her complaint under Rule 12(b)(6), SCRCP).

Because John and Jane are still living together, she cannot petition the court for separate maintenance.

Venue

If there are grounds for the divorce and S.C. courts have jurisdiction, the next step is to determine the proper venue. There are a couple of possibilities for venue depending on whether or not the parties live in S.C.

A.   If both parties live in SC, the case can be filed in the county where the parties last resided as husband and wife or the county in which the Defendant resides at the time of the commencement of the action.

B.   If only the Defendant lives in SC, the case must be filed in the county in which the Defendant resides at the time of the commencement of the action.

C.   If the Defendant does not live in South Carolina, the case must be filed in the county in which the Plaintiff resides.

SIDEBAR: Can I get her stuff if she lives in another state?

Bob comes to my office and wants a divorce from Sue. Sue lives in Georgia and the parties last resided as husband and wife in Georgia. Bob has lived in Greenville County, S.C. for over a year. Sue has never been to S.C. and has always lived in Georgia. Sue doesn’t own any property in S.C.

Bob wants to know if he can file for divorce in Greenville County. I tell Bob that he can. He has lived in S.C. for over a year so the family court has jurisdiction and he lives in Greenville County so that is the proper venue.

“Great!” Bob says. “I want to go after her for alimony!”

Bob is dismayed when I tell him that he can’t. His eyes begin to gloss over when I give him the legal explanation.

A decree simply awarding a divorce is a judgment in rem. A judgment in rem is an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose.

SC Code 20-3-10 grants the South Carolina Family Court with authority to grant a divorce between a SC resident and a nonresident. The South Carolina Family Court can dissolve the marital status of Bob and Sue.

A decree awarding Bob alimony is a judgment in personam. A judgment in personam is a judgment against a particular person, as distinguished from a judgment against a thing or a right or status. Since Bob has already told me that Sue doesn’t own any property in SC, the South Carolina Family Court doesn’t have jurisdiction to grant him an award of alimony. Carnie v. Carnie, 252 S.C. 471, 476, 167 S.E.2d 297, 299 (1969)( constructive service in itself, whether made by publication or by actual service of process upon the defendant outside the state, is insufficient to give jurisdiction to render a judgment for alimony against a nonresident which will be binding upon him except as to his property within the jurisdiction).

I regretfully inform Bob that if he wants an award of alimony against Sue, he will need to file suit in Georgia and that I am not licensed to practice in that state.

According to CoreLogic, 3.7% of the homes in South Carolina are in the foreclosure process.¹  RealtyTrac’s data shows that approximately 2,000 homes go into foreclosure each month in the Palmetto State.²  The problem facing S.C. is clear, mortgage foreclosures continue to rise, and as mortgage foreclosures continue to rise, home values continue to decrease or remain stagnant.  The question becomes “How do we fix it?”

On March 23, 2012, Resolved: Journal of Alternative Dispute Resolution in cooperation with the Center for Dispute Resolution at the Charleston School of Law a symposium focused on foreclosure dispute resolution.³  One of the topics that will be addressed in the focus of today’s post: Foreclosure Mediation.

In his April 2011 Issue Brief for the Center of American Progress, Alon Cohen, Housing Policy Advisor, lays out a compelling argument as to why more states should adopt foreclosure mediation programs.⁴  According to Cohen, foreclosure mediation represents:

a last, best chance for the homeowner and mortgage lender or mortgage servicer to sit down in the presence of a neutral third party who understands the foreclosure and loan modification processes and determines whether there is any deal that nets both sides greater value than would foreclosure.

What is foreclosure mediation?

To answer that question, we need to define both terms separately.

Foreclosure

Foreclosure is “a specific legal process where a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.”⁵  In the case of mortgage foreclosure, the collateral is real property.

So here is what happens, when a homeowner buys a home he often borrows the money to purchase the home from a lending institution, like a bank.  When the homeowner borrows the money, he signs a note promising to pay the bank back.  He also signs a mortgage which allows to bank to take possession of the home, sale it and keep the proceeds if the homeowner fails to make payments as called for in the note.  It is important to remember the note and mortgage are two separate documents; the note is a promise to pay, the mortgage grants the lender the right to foreclose on the property if payments aren’t made on the note.

Mediation

Mediation is “is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).”⁶

So, foreclosure mediation is a form of alternative dispute resolution where a mediator assists Borrowers and Lenders in negotiating their own settlement.

Why Foreclosure Mediation?

Because it works.  According to Cohen, “[a]utomatic mediation programs in Philadelphia and Connecticut see thousands of homeowners a year and continue to see settlement rates near 75 percent. New programs are ramping up in their numbers, with states such as Nevada, whose program started July 1, 2010, also seeing settlement rates near one-half. Mature programs see settlement rates of 75 percent.”

Previously, the South Carolina Supreme Court has recognized the benefit of Alternative Dispute Resolution (ADR).  The South Carolina Supreme Court Rules currently mandate ADR of all civil cases in several counties, however, mortgage foreclosures are exempt from this ADR requirement.

Conclusion

S.C. is yet to join a number of states requiring mediation in all foreclosure actions.  Until such time, homeowners facing foreclosure are required to defend themselves in legal proceedings.  The Law Office of Marcus W. Meetze, LLC is here to help.   Contact us at 864-271-3555 or wes@meetzelaw.com to schedule a consultation today.

Recently, I had a client come into my office for a consultation concerning unemployment benefits after she quit her job.  The facts showed that her salary had been reduced, earned vacation time was taken from her and a fellow employee had been promoted and given her job title.  It quickly became clear that the issue would be whether my client had voluntarily quit her job with good cause.

First, let’s look at the statute:

S.C. Code Ann. § 41-35-120. Disqualification for benefits.

An insured worker is ineligible for benefits for:

(1) Leaving work voluntarily. If the department finds he left voluntarily, without good cause, his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request and continuing until he has secured employment and shows to the satisfaction of the department that he has performed services in employment as defined by Chapters 27 through 41 of this title and earned wages for those services equal to at least eight times the weekly benefit amount of his claim.

Good cause is determined on a case by case basis and based upon my research of reported cases was a difficult, if not impossible, standard to meet.  In fact, I could not find a single case in South Carolina that held a employee had quit his/her job with good cause.  I did find several examples of what “good cause” was not.

1.  Quitting you job to care for children and/or family members is NOT good cause?

In Judson Mills v. South Carolina Unemployment Compensation Com’n., 204 S.C. 37, 28 S.E.2d 535 (S.C. 1944), a claimant quit her job at Judson Mills after a relative who provided care for her four children (ages two – nine) became unable to do so.  The claimant was offered work on third shift but insisted she could only work first or second shift.

After an appeal to the Full Commission, it was determined the claimant had “voluntarily quit her work for good cause, and was genuinely unavailable for the third shift since it was necessary for her to be with her children at that time, but that since she was able and available for work on the first and second shifts, she was able and available for work within the purview of the act.” Id. at 37, 536.

Judge Oxner stated “I find nothing in the act itself or in the circumstances surrounding its passage to indicate an intention on the part of the Legislature to provide benefits for a worker compelled to give up his job solely because of a change in his personal circumstances.”

The Supreme Court of South Carolina reversed the decision of the Full Commission.  The Court did not define what constituted “good cause”, but rather focused on if the claimant was “available for work”.  This means that the claimant be capable and available to take the job, but that no job is available.”  The Court held that because the claimant was not available to work third shift, she was “unable and unavailable for work within the purview of the South Carolina Unemployment Compensation Act and therefore not eligible to receive unemployment compensation benefits”. Id.

2. Quitting your job because your spouse is transferred from one military based to another is NOT good cause?

In Stone Mfg. Co. v. South Carolina Employment Security Commission, 219 S.C. 239, 64 S.E.2d 644 (1951), the Court ruled that a wife who quit her job after he husband had been transferred from a military base in SC to a base in NC had left her job without good cause.  The Court stated “that the ‘good cause’ contemplated by the section under consideration is one having some connection with, or relation to, claimant’s employment or employer.” Id. at 244, 645.

3. Quitting your job one day after receiving notice of a new pay structure without findong out what the effect of the pay structure would be is NOT good cause.

In Gibson v.Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984), the Court held that a computer operator at Florence Country Club was ineligible for benefits after she resigned within one day of receiving notice of a new salary structure.

Although there was conflicting testimony, the Court deferred to the Commissioner’s determination that the claimant was informed the effect of the new salary structure on her particular situation would result in her receiving the same, if not a higher amount of wages.

What the Gibson Court did not address is if the salary has actually decreased would Mrs. Gibson had been eligible for benefits?  Rather, the facts of the case indicated Mrs. Gibson would have received the same, if not greater pay, and quit before learning the details of the new salary structure.

4. Quitting because of personal feelings regarding alleged unethical business practices of employer is NOT good cause.

In another case I found, at a hearing before a Commissioner Hearing Officer, a claimant testified to various occurrences and practices which she considered questionable as to their legality.  The commission found that the claimant had quit work for “personal reasons” and the claimant appealed to the Circuit Court who reversed the decision, finding it was “clearly erroneous […] for the Full Commission of the Employment Security Commission to hold that [claimant] voluntarily separated from her employment […] and did so without good cause.”

The Supreme Court of South Carolina disagreed.  The Court found dismissed the claimant’s position that she considered her employer’s business practices improper and immoral as a “a personal judgment which amounts to nothing more than a disagreement with management decisions” and that even though she feared the company engaged in illegal activity, such fears were “insufficient in light of the fact no such illegality was shown”.

Great.

So armed with all of this legal research, I informed my client that I believe she a meritorious claim, that I would be happy to represent her, and that I thought that was a strong possibility we would lose based on the case law.  Despite my mediocre sales pitch, the client signed a retainer agreement.

A hearing was held before an Appeal Tribunal of the S.C. Dept. Of Employment and Workforce.  At the hearing evidence and testimony of the reduced salary, eliminated vacation time and promotion of fellow employees was introduced.  Leaving the hearing I felt that I had made a solid effort but was pessimistic about the chances of success.

I received the written decision of the Appeal Tribunal.  My eyes immediately went to the section captioned “DECISION” where I read the words, “The Tribunal hereby holds the claimant eligible for benefits, upon a finding the claimant voluntarily quit employment with good cause.

Despite what I thought may be a Quixotic battle, it appears the quest for good cause may not be so impossible after all.

In  Wachovia Bank, National Association v. William E. Blackburn, et. al., the South Carolina Court of Appeals has ruled that counterclaims involving allegations of sales misrepresentations and pre-purchase fraud by Wachovia are not subject to jury trial waivers contained in a Note, Mortgage and Personal Guaranties executed by the Defendants.

In this case, William Blackburn, along with several other Defendants, executed loan documents in connection with the purchase of some property in Georgetown County.  According to the Defendants, they purchased the property at a “high pressure” sales event after Wachovia and others defrauded the buyers by artificially inflating property values and making other various misrepresentations regarding the property and its amenities.

Wachovia filed a foreclosure action in Georgetown County after the Defendants allegedly failed to make payments as called for in the loan documents.  Defendants filed an answer counterclaim and third-party complaint asserting the following counterclaims: Negligent Misrepresentation, Unfair Trade Practices, Promissory Estoppel, Breach of Contract Accompanied by Fraudulent Act, Breach of Fiduciary Duty, Fraud/ Fraud in the Inducement,  Breach of Contract/ Negligence, Breach of Contract, Civil Conspiracy, and  Illegality of Contract.  The Defendants demanded a jury trial on their counterclaims.

Wachovia subsequently filed a motion to strike the jury demand and to refer the case to the Master-in-Equity for Georgetown County.  The motion to strike was based on the jury trial waivers quoted below, contained within certain loan documents.

WAVIER OF JURY TRIAL.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT

In response to Wachovia’s motion, the Defendants made two arguments:  (1)  the waiver was not “knowingly and voluntarily” made, and (2)  the waiver was not applicable to their counterclaims.

The court make quick work of the Defendants’ argument regarding whether or not the waiver was made knowingly and voluntarily.  The Court ruled the waivers were conspicuous and unambiguous and the Defendants were charged with reading the loan documents before they signed them.  Win for the Bank, right?  Not so fast…

While ruling the waivers were knowingly and voluntarily made, the Court found the waivers inapplicable to the Defendants’ counterclaims.  The Court held, “We do not believe the allegations of sales misrepresentations and pre-purchase fraud by the Blackburns are sufficiently related to the note, and this, we do not believe they are subject to the waivers”.

So the take-home lesson from this case is that just because you signed a document which contains a valid waiver of your right to a jury trial does not mean you waived your rights to all potential claims.  Contact the Law Office of Marcus W. Meetze, LLC if you have questions regarding foreclosures in South Carolina.