Responsibility for payment of legal fees and costs is almost always an issue in family law cases in South Carolina. The South Carolina Court of Appeals has recently provided clear guidance to our trial judges regarding this issue.
On December 23 the South Carolina Court of Appeals in the matter of Srivastava v Srivastava clarified the rules regarding the award legal fees and court costs to a prevailing party in a family court case. In my experience, judges are routinely awarding legal fees and court costs in contravention of the rules. The ruling in Srivastava should help provide our courts with clear guidance when contemplating an award of legal fees and costs.
The first thing a court must do when considering an award of legal fees and court costs is to determine whether such fees should be awarded to a prevailing party in the first place (another topic altogether). However, once a court decides that the prevailing party is entitled to an award of legal fees and court costs, it must then decide how much to award. The court ruled that “A party’s ability to pay is an essential factor in determining whether an attorney’s fee should be awarded, as are the parties’ respective financial conditions and the effect of the award on each party’s standard of living.”
The court found that the legal fees and court costs that were ordered to be paid in the Srivastava case amounted to 90% of the obligated parties’ annual income! In expressing their concern for this award, the court reasoned as follows:
In Rogers v. Rogers, our supreme court found the family court’s award of attorney’s fees to the husband was excessive, in part, because the award represented approximately 16% of the wife’s annual income. In remanding the issue of attorney’s fees to the family court, the supreme court emphasized, “A party’s ability to pay is an essential factor in determining whether an attorney’s fee should be awarded, as are the parties’ respective financial conditions and the effect of the award on each party’s standard of living.” Id.
Furthermore, the court made clear that it would normally “be very concerned by an award of attorney’s fees representing approximately 40% of [a party’s] annual income”. Absent clear evidence that a party has prolonged the litigation by refusing to comply with court rules, the court made clear that an essential factor in awarding fees and costs must be a party’s ability to pay.
We recently learned of a case where one of our family court judges awarded $50,000 in legal fees and court costs to be paid within 12 months by a party that the same court found to have an annual gross income of $61,000! The court was apparently not concerned by the fact that it would be physically impossible for the obligated party to pay these legal fees even if every penny of his annual disposable income was paid to the other party!
For attorneys “justice” is an elusive term. However, ordering a person to pay over 80% of their annual income in legal fees within 12 months is an injustice by any legal standard. The judge set up this person to be found in contempt of the court’s prior order when he is not able to pay the money. He will be incarcerated in our county jail at the taxpayers expense as punishment. This person will then likely lose his job and be unable to pay his child support and alimony obligations, leading to more findings of contempt and more taxpayer funded incarceration.
Apparently our Court of Appeals was thinking along the same lines in the Srivastava case!