South Carolina Lawyers Weekly
A family court judge properly ordered a father to pay roughly $250,000 in fees and costs to his ex-wife’s attorneys and their children’s guardian ad litem in a modification action, the South Carolina Court of Appeals has ruled, affirming what is believed to be a record-breaking attorneys’ fees award.
Charles Couch and Rita Couch divorced in Florida in 2006. Under the divorce agreement, their two minor daughters, “AC” and “IC”, primarily resided with Rita in South Carolina, with periods of visitation with Charles, who lives in Arizona.
Since the divorce, the Couches have been in multiple family court disputes and investigations. In many of the instances, Charles’s claims were denied or dismissed as unsubstantiated and the family court modified the decree in Rita’s favor.
The most recent happened in April 2015. During a visit to Arizona, AC showed her father photos of cuts IC made on her upper arm. Charles filed a complaint and motion for an ex parte emergency order for sole custody about three months later.
After admonishing Charles for serving Rita at the “eleventh hour,” the family court denied the motion for an emergency order and found insufficient evidence to support many of the claims. A four-day trial was held in April 2017 after being delayed due to the withdrawal of Charles’s attorney.
Jasper County Family Court Judge James F. Fraley Jr. found that Charles failed to meet his burden to prove that there’d been a substantial change in circumstances negatively affecting the welfare of the children warranting a change in custody and didn’t offer any credible evidence that Rita was mentally or emotionally unstable or negligent in failing to discover IC’s cutting behavior or negligent in her choice of counselors.
Rita moved for attorney’s fees and costs. Fees on both sides were substantial – $252,304 for Rita and $366,226.74 for Charles. The GAL’s total fees and costs were $44,987.87.
Fraley determined Rita was entitled to an award of fees and ordered Charles to pay a total of $222,033 towards her attorney’s fees and the GAL’s fees. Charles appealed.
Writing for a unanimous court in a July 15 opinion, Judge Blake A. Hewitt affirmed the payment order.
“This was a difficult, complex and contentious custody dispute that lasted nearly two years and required extensive discovery,” Hewitt wrote. “Furthermore, we agree with the family court’s finding that [Charles’s] actions in this case, including waiting until the last minute to file and serve documents, filing numerous and sometimes questionable motions and his general behavior throughout the underlying incident and litigation evince uncooperativeness and an intent to make this litigation more contentious.”
In deciding whether to award attorneys’ fees, a court should consider a party’s ability to pay their own attorneys’ fee, the beneficial results obtained by the attorney, the parties’ respective financial conditions, and the effect of the attorneys’ fee on each party’s standard of living, and Fraley had properly considered each of these factors in detail, Hewitt wrote.
First, Rita had prevailed on the merits, as Charles’s core argument to the family court was his accusation that she was mentally unstable and harming the parties’ children.
“He lost,” Hewitt wrote. “Fairness requires acknowledging [Charles] prevailed on some issues, but we agree with the family court that these issues were minor.”
Although both parties claimed they lacked the ability to pay their own legal fees, Hewitt found that Charles had “a far greater” ability to pay and “a significantly superior financial position” to Rita, who said she made about $2,600 per month and incurred roughly $2,400 in expenses, with about $70,000 in total assets. In comparison, Charles indicated that he made $9,300 per month, roughly three times Rita’s income, with about $277,000 in total assets.
The final factor also tipped in Rita’s favor, Hewitt said. Although awarding attorney’s fees would affect Charles’s standard of living, requiring Rita to pay her own fees would have a devastating impact on her standard of living.
Hewitt also found that the record supported Fraley’s determination on the amount of fees and costs awarded. The time spent on the case by Rita’s counsel was reasonable and necessary, the order was not for the full amount of her fees and costs (which were $110,000 less than Charles’s fees), and there was no question about the professional standing of her attorneys.
The appeals court did reverse Fraley’s requirement of a 90-day payment period. Expressing regret about prolonging the litigation, the court remanded the case for consideration of the parties’ current financial positions and the possible development of a payment plan.
“The core problem can be summarized in two sentences: here we have a litigant who haled his former spouse into court and who engaged respected lawyers to vigorously represent him, requiring his ex-wife to do likewise,” Hewitt wrote. “His financial declaration suggests he can hardly afford his own fees, yet he had no problem incurring those fees and there is a years-long pattern of him routinely finding money to fund repeated lawsuits against his ex-wife.”
Pamela Wray Blackshire and Bree R. Kennedy of Kennedy & Blackshire in Hilton Head Island represented Rita.
“We hope that this decision will benefit not just Mrs. Couch but future litigants who are in this position as well,” Blackshire said. “The court sent a message that you can’t just barrel forward and bully someone because you can financially out-litigate them without the concern there might be a recourse if the action is frivolous.”
Columbia attorney Elizabeth Dalzell of the Law Office of Kenneth E. Berger, who represented Charles, said the decision demonstrates the challenges of family law. While both sides often have “so much passion” about the issues, “there is also a question about the behavior of the attorneys below, who incurred hundreds of thousands of dollars in fees. Maybe there needs to be a check on that in some way.”
Gregory S. Forman, a family law attorney in Charleston who was not involved in the case, called the decision “highly significant.”
“Assuming it is not reversed at some point, this smashes the record both for the largest fee award and the largest multiplier of a party’s income in a published opinion,” Forman said. “This is very much a cautionary tale for lawyers to show their clients the risks of bringing litigation where you ultimately don’t succeed.”
The 13-page decision is Couch v. Couch (Lawyers Weekly No. 011-040-20). The full text of the opinion is available online at sclawyersweekly.com.
