Duclos v. Duclos
| Decision Date | 20 July 2022 |
| Docket Number | 2022-UP-306,Appellate Case 2018-002082 |
| Parties | Adrian A. Duclos, Appellant, v. Karen R. Duclos, Respondent. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Heard March 1, 2022
Appeal From Dorchester County Jan Benature Bromell Holmes, Family Court Judge
Thomas Ryan Phillips, of Cordell Law LLP, of Charleston, for Appellant.
Bernard F. Mack, of Ben F. Mack, of Summerville, for Respondent.
Adrian A. Duclos (Father) appeals the family court's award of $30,000 in attorney's fees and costs to Karen R. Duclos (Mother) after remand from this court. He argues the family court did not follow this court's mandate on remand of the case. He asserts the fees represent approximately 64% of his annual income and the family court did not properly consider his ability to pay Mother's fees. We affirm as modified.
Father and Mother divorced after being married for approximately seventeen years and having four children. During the divorce the parties entered into a settlement agreement giving Mother primary custody of the children.
Several years after the divorce, Father filed a complaint, alleging a substantial change in circumstances and seeking custody of the parties' oldest child. Subsequently, Father filed an amended complaint requesting, inter alia, primary custody of all of the parties' children and attorney's fees and costs. Approximately one year later, the family court entered a temporary order that suspended Father's visitation rights at Mother's request, finding Father was not acting in the three[1] minor children's best interests based on his continued allegations of child abuse and neglect that were deemed unfounded. Father later filed a second amended complaint, in which he reasserted his previous grounds and also alleged additional changes in circumstances.
The family court held a seven-day hearing at which both parties called numerous witnesses. The family court found Father failed to prove a substantial change in circumstances and denied his request for a change in custody. The family court also denied Father's request for attorney's fees,[2] instead ordering him to pay a portion of Mother's attorney's fees.[3]
The family court made findings as to the factors provided by E.D.M v. T.A.M.[4] and Glasscock v Glasscock.[5] The court determined Mother achieved beneficial results in the litigation because she retained custody of the minor children. The court found Mother could not pay her fees without the assistance of her father or current husband because she was not employed outside the home. The court concluded that because Father unsuccessfully initiated the action and caused the parties to incur almost $88,000 in attorney's fees, he should be responsible for those fees, instead of a third party. The court noted Father earned $3,975 per month, whereas Mother, a lifelong homemaker, would earn $1,257 per month if the court imputed minimum wage to her. Further, the court held that as Father was employed and earned three times the amount of income imputed to Mother, he had a greater ability to pay the parties' attorney's fees. The family court acknowledged Mother enjoyed a comfortable lifestyle based on her current husband's income but concluded her current husband should not be obligated to pay for her attorney's fees in a custody action to which he was not a party. Further, the court found Father's standard of living would be less impacted by his paying the fees than Mother's would because she relied on her current husband for her daily needs. The family court focused on Father's continued allegations of educational, medical, and physical neglect, which the court found to be unsubstantiated as confirmed by investigating authorities. The family court concluded Father's "inability to cooperate and be reasonable" made the case more difficult. The family court ordered Father to pay $34,864.63[6] of Mother's attorney's fees, in the amount of $5,000 every ninety days.
Father appealed to this court, arguing, inter alia, the family court erred by ordering him to pay $34,864.63 towards Mother's attorney's fees. This court reversed and remanded the portion of the order concerning attorney's fees. Duclos v. Duclos, Op. No. 2017-UP-354 (S.C. Ct. App. filed Sept. 6, 2017) (per curiam). This court found Father's financial declaration stated his gross monthly income was $3,975, totaling approximately $47,000 per year but "did not include [Father's] state or federal tax obligations or his child support obligations, which would inevitably increase [his] stated monthly expenses of $3,386." Id. Additionally, this court observed that requiring Father [7] Id. While recognizing Mother succeeded on the custody action, this court determined requiring Father to pay this amount would be inequitable and reversed the attorney's fees award. Id. Accordingly, the court remanded the matter "to the family court for a recalculation of the amount of [Mother's] attorney's fees, taking into consideration [Father's] ability to pay." Id.
On remand, the family court conducted a hearing to reconsider the amount of attorney's fees awarded to Mother. Following the hearing, the family court issued an order, "reiterate[ing] its findings . . . with respect to attorney's fees as outlined in Glasscock v. Glasscock; Farmer v. Farmer[8]; E.D.M. v. TA.M.." The family court noted although Father's financial declaration stated he pays self-employment tax of $329 per month, he failed to specify what amounts he pays in federal and state taxes but "the amount is listed and was considered by the ourt in its initial ruling." The family court found Father The family court ordered Father to pay $30,000 of Mother's attorney's fees, in monthly increments of $329.
Father filed a motion to alter or amend. He noted the family court did not receive any new evidence or testimony at the hearing on remand. He contended the family court simply reiterated its previous findings from the final order pertaining to attorney's fees and cited E.D.M., Glasscock, and Farmer. He also stated, "The ourt further observed that [Father's] financial declaration . . . shows that he pays $329.00 per month in self-employment tax . . . ." Father noted the family court, like this court, observed his financial declaration did not "include the amount he pays in state and federal taxes." However, Father asserted this court had "actually remarked that this would inherently increase [his] expenses, which would logically serve to diminish [his] ability to pay [Mother's] fees and thereby decrease any potential fee award." Father also contended that in the order after remand, the family court made only two new substantive findings-(1) he earns three times the income imputed to Mother and (2) he incurred and managed to pay about the same amount of attorney's fees as Mother. Father argued neither of these findings warranted the new attorney's fee award, which "remain[ed] unreasonable and excessive" in light of his "income and lack of ability to pay."
Following Father's motion, the family court issued a new order. The family court determined Father is "gainfully employed," earns $3,975 per month, and has the ability to pay both his and Mother's attorney's fees. The court also found because Father "is self-employed as an [i]nsurance [a]gent," he "basically controls how diligent or hard, if and whether he works, to some extent." The court noted Father previously earned $5,000 per month as a real estate agent, upon which his child support obligation was based when the parties divorced. The court indicated Mother was "a stay at home mom during the parties' marriage," which continued in her present marriage, and "was imputed minimum wage income of $1,257 per month." The family court determined Mother does not have the ability to pay all of her attorney's fees; she was only able to pay fees and costs during the litigation because her current husband and her father made payments on her behalf. The family court further observed Mother relies on her husband for her daily needs and found he should not be obligated to pay attorney's fees for Father's frivolous action.
Additionally, the family court found Father "earns three times the amount that [Mother] earns" and "has a greater earning potential and capacity." The court found Father "has the ability to pay" both Mother's and his attorney's fees. The court determined that because of the new payment arrangement it was ordering, the attorney's fee award would not impact Father's standard of living and he would "not be forced into poverty." The court noted Father filed the action, made the litigation "egregiously difficult," incurred a total of $41,730.60 for his own attorney's fees, and "caused nearly $88,000 of fees to be incurred on behalf of both parties." The court believed "caus[ing] a negative financial impact" to Mother and her husband's standard of living motivated Father to take the actions he did. The court also determined Mother "obtained beneficial results."
Further the family court determined Father "incurred attorney's fees in nearly the same amount as" Mother, which he "managed to pay...
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