Buist v. Buist

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Katie Green Buist, Respondent,
v.
Michael Scott Buist, Petitioner.
Appellate Case No. 2012-213002
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Abbeville County
Billy A. Tunstall, Jr., Family Court Judge
Opinion No. 27468
Heard June 12, 2014 – Filed December 3, 2014
AFFIRMED AS MODIFIED
Scarlet Bell Moore, of Greenville, for Petitioner.
C. Rauch Wise, of Greenwood, for Respondent.
CHIEF JUSTICE TOAL: We granted Scott Buist's (Husband) petition to
review the court of appeals' decision affirming the family court's award of $8,000
in attorneys' fees to Katie Buist (Wife). See Buist v. Buist, 399 S.C. 110, 124–25,
730 S.E.2d 879, 886 (Ct. App. 2012). While we agree with the court of appeals
that Husband failed to preserve his specific objection to the award of attorneys'
fees, the court of appeals erred in declaring a bright-line rule that an objection to an
award of attorneys' fees is always untimely when made as part of a motion
pursuant to Rule 59(e), SCRCP. Accordingly, we affirm as modified.
FACTS/PROCEDURAL BACKGROUND
Husband and Wife married in 1999 and had one child. In 2007, Wife filed
for divorce, seeking, inter alia, attorneys' fees and costs. In 2009, the family court
granted the couple a divorce on the grounds that they had lived separate and apart
for one year.
On November 5, 2009, the family court conducted a final hearing, receiving
testimony from Husband, Wife, their witnesses, and a guardian ad litem (GAL)
regarding contested issues of division of marital assets, child custody and
visitation, and child support.1 At the hearing, Wife's attorney submitted a fee
affidavit requesting approximately $15,000 in attorneys' fees. Husband's attorney
did not object to the affidavit, but submitted his own fee affidavit regarding his
earlier motion for a rule to show cause.
In the final divorce decree, dated December 16, 2009, the family court
ordered Husband to pay $8,000 towards Wife's attorneys' fees and costs within 180
days. The court also ordered Husband and Wife to each pay half of the $2,768.90
owed to the GAL within 180 days. Finally, the family court ordered Wife to pay
Husband's attorney $3,050 in regards to Husband's motion for a rule to show cause.
Husband filed a timely motion to reconsider pursuant to Rule 59(e), SCRCP,
arguing, inter alia:
The [c]ourt required [Husband] to pay large sums of money to [Wife],
her attorney, and the [GAL] within 180 days when the record clearly
establishes . . . that [Husband] does not have the ability to borrow any
money or to pay those sums within that time frame.
1
Prior to the final hearing, Wife obtained information from her private investigator
(PI) that Husband violated a previous order by the family court, and as a result, the
family court held Husband in contempt. The family court required Husband to pay
$2,537.50 in attorneys' fees to Wife, as well as the Wife's costs in hiring the PI;
however, the parties agreed to "deal with [the costs of hiring the PI] in the final
hearing." Thus, at the final hearing, Wife's attorney solicited testimony that the PI
charged Wife $880 for his services.
The family court denied Husband's motion.
Husband appealed, arguing, inter alia, that the family court erred in failing
to apply the factors set forth in Glasscock v. Glasscock2 or E.D.M. v. T.A.M.3 prior
to awarding attorneys' fees to Wife. However, the court of appeals found
Husband's argument unpreserved. Buist, 399 S.C. at 124, 730 S.E.2d at 886. The
court of appeals explained that "Husband did not challenge Wife's fee affidavit at
the hearing and, therefore, failed to procure a ruling from the family court on this
issue." Id. As such, the court of appeals viewed the award of attorneys' fees as an
unappealed ruling and, thus, the law of the case. Id. The court of appeals also
found that Husband's motion to reconsider did not aid him in preserving the
attorneys' fees issue for review, stating that "any request at the 59(e) stage of the
proceedings was untimely because Husband could have raised this issue at trial."
Id. at 125, 730 S.E.2d at 886.
We granted Husband's petition for a writ of certiorari to review the decision
of the court of appeals.
ISSUE
Whether the court of appeals erred in determining that the attorneys'
fees issue was not preserved for appellate review?
STANDARD OF REVIEW
Appellate courts review appeals from the family court de novo. Simmons v.
Simmons, 392 S.C. 412, 414–15, 709 S.E.2d 666, 667 (2011). Thus, an appellate
court may find facts in accordance with its own view of the preponderance of the
2
304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) (outlining factors to consider in
awarding reasonable attorneys' fees, including: "(1) the nature, extent, and
difficulty of the case; (2) the time necessarily devoted to the case; (3) professional
standing of counsel; (4) contingency of compensation; (5) beneficial results
obtained; [and] (6) customary legal fees for similar services").
3
307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992) (outlining factors to consider
in awarding reasonable attorneys' fees, including: "(1) the party's ability to pay
his/her own attorneys' fee; (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").
evidence. Dickert v. Dickert, 387 S.C. 1, 5–6, 691 S.E.2d 448, 450 (2010). The
appellant retains the burden to demonstrate the error in the family court's findings
of fact. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 652 (2011).
ANALYSIS
"It is well settled that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial court to be preserved."
Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006). While "a
party is not required to use the exact name of a legal doctrine in order to preserve
the issue," Herron v. Century BMW, 395 S.C. 461, 466, 719 S.E.2d 640, 642
(2012), the party nonetheless must be sufficiently clear in framing his objection so
as to draw the court's attention to the precise nature of the alleged error, Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). If the party is not
reasonably clear in his objection to the perceived error, he waives his right to
challenge the erroneous ruling on appeal. S.C. Dep't of Transp. v. First Carolina
Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007).
While Husband did not object to Wife's fee affidavit during the final
hearing, his failure to object during the hearing was not fatal to his efforts to
preserve the attorneys' fees issue for appeal. For the benefit of the Bench and the
Bar, we briefly address the appropriate procedure to object to an award of
attorneys' fees in family court:
(1) During the trial, a party may introduce an attorneys' fee affidavit in
support of the party's request for an award of attorneys' fees. To object to
the propriety of a fee award, the opposing party may either
contemporaneously object to the affidavit or, at some point prior to the
close of the final hearing, request a hearing—then or later—on the sole
issue of attorneys' fees.4
(2) If the opposing party either objects or is granted a later hearing, the
family court may receive additional testimony and evidence or evaluate
the record as it then exists, applying the Glasscock or E.D.M. factors, to
decide the propriety of awarding attorneys' fees.
(3) If the opposing party fails to object or request a later hearing, the family
4
The family court may exercise its discretion to grant a fees-only hearing, and is
not required to grant such a request.
court may exercise its discretion to determine whether the amount of the
award stated in the fee affidavit (i.e., the hourly rate and number of hours
billed) is reasonable absent additional testimony. However, even if the
family court finds the affidavit reasonable, it must still consider whether
the proponent of the affidavit is entitled to attorneys' fees pursuant to the
Glasscock or E.D.M. factors.
(4) If the party against whom fees are awarded objects to the family court's
application of the Glasscock or E.D.M. factors in the final order, the party
may raise the issue in a motion to reconsider pursuant to Rule 59(e),
SCRCP; however, if that party chose not to object to the fee affidavit or
request a later hearing, the party's objection to the award must only be
supported by information contained in the record. In other words, the
party may not introduce additional testimony regarding any of the factors
after the family court issues its final order.5
Therefore, we find that Husband's motion to reconsider constituted a timely
challenge to the family court's award of attorneys' fees. The court of appeals'
conclusion that "any request [to reconsider an award of attorneys' fees] at the 59(e)
stage of the proceedings was untimely because Husband could have raised this
issue at trial" is clearly erroneous. See Buist, 399 S.C. at 125, 730 S.E.2d at 886
(emphasis added). This statement wrongly conflates the timing of Husband's
objection with his failure to object with specificity, prior to his appeal to the court
of appeals, to the propriety of awarding attorneys' fees.
We likewise reject the court of appeals' finding that the parties must
contemporaneously object to fee affidavits to preserve objections to an award of
attorneys' fees for appellate review. A failure to object to the affidavit only
indicates the party's acceptance of the affidavit as a reasonable representation of
the amount of fees the opposing party owes his or her attorney, thus obviating any
need for the opposing party to produce additional evidence or testimony on the
matter. The family court must still apply the Glasscock or E.D.M. factors to
determine whether to award a fee, as well as the amount of the fee to award. Cf.
Glasscock, 304 S.C. at 161 & n.1, 403 S.E.2d at 315 & n.1 (classifying the six
factors into those relevant to determining a reasonable hourly rate, those relevant to
5
We note that the above procedural analysis is not intended to confuse
practitioners or unduly burden the family court, but is simply intended to validate
the propriety of a Rule 59(e) motion for objections to fee awards.
determining a reasonable number of hours, and those relevant to determining
whether an award should be made at all).
However, despite the timeliness of Husband's objection to the family court's
award of attorneys' fees to Wife, Husband's sole assignment of error in his motion
to reconsider was that the family court "required [Husband] to pay large sums of
money to [Wife], her attorney, and the [GAL] within 180 days when . . . [Husband]
does not have the ability to borrow any money or to pay those sums within that
time frame." (Emphasis added). Thus, Husband objected only to the amount of
time that the family court gave him to pay both the attorneys' fees and his portion
of the GAL fees, not to the imposition of the fees themselves. The family court
surely needed to "grope in the dark" to ascertain that Husband took issue with the
court's alleged misapplication of the Glasscock and E.D.M. factors. See Jones v.
Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010).
Accordingly, as Husband was not sufficiently specific in his objection to the
family court's final divorce decree, Husband waived any objection that the family
court did not adequately apply the Glasscock or E.D.M. factors. We therefore
affirm the court of appeals' decision to the extent it affirmed the family court's
award of attorneys' fees to Wife on issue preservation grounds.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the court of appeals as
modified. As set forth in the family court's final divorce decree, (1) Husband shall
pay Wife $8,000 in attorneys' fees and costs, in addition to the $2,537.50 he owed
her for his contempt of a previous family court order, see supra note 1; (2) Wife is
ordered to pay Husband $3,050 in attorneys' fees, awarded by the family court in
the final divorce decree regarding Husband's motion for a rule to show cause; and
(3) Husband shall pay his portion of the GAL fees.
AFFIRMED AS MODIFIED.
BEATTY, KITTREDGE, JJ., and Acting Justice Dorothy M. Jones concur.
PLEICONES, J., concurring in result in a separate opinion.
JUSTICE PLEICONES: I agree that the Court of Appeals erred in finding
Husband's objection to the attorney's fees award was untimely and that we
should affirm in result since the only issue raised by his Rule 59, SCRCP,
motion was his ability to pay that award. I write separately because while I
appreciate the majority's effort to establish a uniform procedure to deal with
attorneys' fee requests in family court, I believe the suggested procedure may
cause unnecessary confusion for practitioners and additional work for family
court judges.
As I understand domestic litigation, in almost every case both parties request
attorneys' fees, and, ordinarily, the attorneys' affidavits are given to the court
at the final merits hearing.6 As a matter of courtesy and practicality, there is
ordinarily no objection to the court's acceptance of these affidavits at this
hearing.7
When attorneys' fees are requested, the family court engages in a two-part
analysis. It must first determine whether a party is entitled to an attorney's
fee award, using the factors in E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d
812 (1992), factors which are derived from footnote 1 in Glasscock v.
Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991). These factors are: (a) the
ability of the parties to pay; (b) their respective financial conditions; (c) the
contingency of the attorney's compensation; (d) the effect of an attorney's fee
award on each party's standard of living; and (e) the beneficial results
obtained in the litigation. While a hearing before issuance of a final order
could be held on some of these issues, at the very least the "beneficial results"
factor cannot be determined until the terms of the final order are decided. In
addition, other factors may also be subject to change depending on the terms
of the final order since, for example, the division of property or a child
support award may affect a party's ability to pay. By requiring a family court
litigant to request an evidentiary hearing at the trial in order to preserve an
objection to any future award, we are effectively requiring every party who
either seeks an award or against whom an award may be made to request
such a hearing. Further, at that fee hearing, the party must present evidence
6
I understand a different procedure may be used at temporary hearings.
7
It is unclear to me the basis upon which the majority suggests a party may object
to the court's reception of the opposing counsel's fee affidavit.
addressing any possible E.D.M. finding the family court may make, as the
majority holds she "may not introduce additional testimony regarding any of
the factors after the family court issues its final order."
Only if the family court judge decides that a party is entitled to an award
under E.D.M., is she then required to determine the appropriate amount of the
award under Glasscock. The factors to be considered in determining the
award are: 1) the nature, extent, and difficulty of the case, 2) the time
necessarily devoted to it, 3) the professional standing of counsel, and 4) the
customary fees for similar services. The reasonableness of the attorney's
hourly fee is determined by consideration of factors 3 and 4, while the
reasonableness of the number of hours she billed is through the application of
factors 1 and 2. Id. At the evidentiary hearing mandated by the majority
every party will be required to present all evidence that may prove relevant to
the family court's ultimate Glasscock ruling.
Since the award of an attorneys' fee is a two part process, since the threshold
question of entitlement always turns, at least in part, on the beneficial results
obtained, and since in many cases that question cannot be answered until the
family court judge files her final merits order, I believe the better practice is
to grant family court judges the discretion to deal with requests for attorney's
fees on an ad hoc basis. I fear if we adopt the proposed procedure, we will in
effect be requiring at least one additional evidentiary hearing on fees in most
domestic litigation. In my opinion, it is preferable to allow family courts to
deal with attorney fee requests on an individualized basis, allowing for a full
hearing where necessary and entertaining Rule 59 motions where appropriate.
For the reasons given above, I concur only in the result reached by the
majority.