Duclos v. Duclos

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Adrian A. Duclos, Appellant,

v.

Karen R. Duclos, Respondent.

Appellate Case No. 2015-000770

Appeal From Dorchester County
Jan B. Bromell Holmes, Family Court Judge

Unpublished Opinion No. 2017-UP-354
Submitted June 1, 2017 – Filed September 6, 2017

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Thomas Ryan Phillips, of the Law Office of T. Ryan
Phillips, LLC, of Charleston, for Appellant.

Bernard F. Mack, of Ben F. Mack, of Summerville, for
Respondent.

PER CURIAM: On appeal from the family court, Adrian A. Duclos (Husband)
claims the family court erred when it (1) awarded Karen R. Duclos (Wife)
$34,864.63 in attorney's fees; (2) ordered Husband to pay all of the guardian ad
litem (GAL) fees, despite the absence of a court order authorizing the GAL to
exceed his fee cap; and (3) prohibited Husband from having any contact with the
parties' children until Husband submitted to a psychological evaluation. We affirm
in part, reverse in part, and remand.

1. We find the family court erred when it required Husband to pay $34,864.63 in
Wife's attorney's fees because Husband does not have the current ability to pay this
amount. See Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993) ("A
party's ability to pay is another 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." (citing Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991))); Farmer v. Farmer,
388 S.C. 50, 57, 694 S.E.2d 47, 51 (Ct. App. 2010) (in deciding whether to award
attorney's fees and costs, a family court should first consider the following factors
as set forth in E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d 812, 816
(1992): "(1) each party's ability to pay his or her own fee; (2) the beneficial results
obtained by the attorney; (3) the parties' respective financial conditions; and (4) the
effect of the fee on each party's standard of living"). Husband's financial
declaration reflects a gross monthly income of $3,975, which equates to
approximately $47,000 per year. Husband's declaration to the family court did not
include his state or federal tax obligations or his child support obligations, which
would inevitably increase Husband's stated monthly expenses of $3,386. The
family court's requirement for Husband to pay almost $35,000 in Wife's attorney's
fees leaves Husband with little income to pay these expense and represents almost
43% of Husband's annual income, exclusive of Husband's taxation and support
obligations.1 Despite Wife's success on the custody issue, we find it would be
inequitable to require him to pay this amount. See Rogers v. Rogers, 343 S.C. 329,
334, 540 S.E.2d 840, 842 (2001) (finding it would be inequitable to require the
mother to pay a portion of the father's attorney's fees in a child support action when
the fee award would represent approximately 16% of mother's annual income);
Srivastava v. Srivastava, 411 S.C. 481, 490, 769 S.E.2d 442, 447 (Ct. App. 2015)
(finding attorney's fee award was improper when it represented 90% of the wife's
gross annual income and stating the "income-to-attorney's fees ratio makes it
apparent that the family court did not sufficiently consider each party's ability to
pay, their respective financial conditions, and the effect of the award on each
party's standard of living"); Spreeuw v. Barker, 385 S.C. 45, 72, 682 S.E.2d 843,
857 (Ct. App. 2009) (stating "[t]ypically, [this court] would be very concerned by

1
The total attorney's fees award is on a payment plan resulting in approximately
$20,000 in payments annually and 75% in total.
an award of attorney's fees representing approximately 40% of [a party's] annual
income" but upholding award of fees when evidence demonstrated the husband
was extremely uncooperative and evasive throughout discovery and litigation).
Accordingly, we reverse the $34,864.63 award of attorney's fees and remand to the
family court for a recalculation of the amount of Wife's attorney's fees, taking into
consideration Husband's ability to pay. See Miteva v. Robinson, 418 S.C. 447,
463–66, 792 S.E.2d 920, 929–30 (Ct. App. 2016) (reviewing the family court's fee
award and E.D.M. factors and reducing the amount of attorney's fees), cert.
pending.

2. We find the family court properly exercised its discretion when it required
Husband to pay the entirety of the GAL fees incurred at trial. See Shirley v.
Shirley, 342 S.C. 324, 341, 536 S.E.2d 427, 436 (Ct. App. 2000) ("An award of
[GAL] fees lies within the sound discretion of the [family court] and will not be
disturbed on appeal absent an abuse of discretion."). Husband claims the family
court erred in its decision because the GAL did not follow the proper statutory
procedure to exceed his authorized fee cap pursuant to section 63–3–850(A) of the
South Carolina Code (2010). We find the GAL abandoned his request for
additional fees in excess of the statutory cap by his concession at trial that he was
only seeking payment for his time at trial and not for any fees prior to that time in
excess of the statutory cap. To that end, we hold the GAL's claims for fees at trial
were well-founded as he properly performed his services and was entitled to
payment for his time at trial. See Marquez v. Caudill, 376 S.C. 229, 250, 656
S.E.2d 737, 747 (2008) (upholding family court's award of GALs' fees and
agreeing with family court's determination that GALs had properly performed their
services and were entitled to payment of their fees and expenses). We
acknowledge the family court's consent order appointing the GAL required each
party to share equally in the GAL's fees. However, the family court also ordered
that the payments to the GAL were without prejudice to either party and that the
court retained the authority to reallocate the payment of these fees at the final
hearing. Accordingly, we hold the family court did not abuse its discretion in
requiring Husband to pay the entirety of the GAL fees because the GAL was only
seeking payment for fees incurred at trial, the GAL provided notice to both parties
that he was seeking those fees, the GAL submitted his fee affidavit to the parties
and the family court at the end of trial, and Husband had the ability to cross-
examine the GAL on his entitlement to fees at trial. See generally Nash v. Byrd,
298 S.C. 530, 538, 381 S.E.2d 913, 917 (Ct. App. 1989) (per curiam) (finding
GAL—who submitted an appellate brief, participated at oral argument, and
requested an additional fee for costs and time spent on appeal—was entitled to
additional fees).
3. Last, we find the family court acted within its discretion in prohibiting Husband
from contacting the parties' children until Husband underwent a court-ordered
psychological evaluation. See Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d
154, 158 (1996) (stating that, similar to child custody, the welfare and best
interests of the child are the primary considerations in determining visitation);
Paparella v. Paparella, 340 S.C. 186, 191, 531 S.E.2d 297, 300 (per curiam) (Ct.
App. 2000) ("[V]isitation is addressed to the broad discretion of the family court
and its decision will not be disturbed on appeal absent abuse."). We are aware that
the decision to suspend a parent's visitation rights is one that should be used
sparingly. However, we concur with the family court's conclusion that temporarily
suspending Husband's visitation rights was in the children's best interests and find
the family court properly exercised its discretion in suspending Husband's
visitation rights until Husband complies with the family court's order. See Nash,
298 S.C. at 538, 381 S.E.2d at 917 (per curiam) (upholding family court's decision
to conditionally suspend the father's visitation rights with his son until the father
underwent court-ordered counseling).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SHORT, WILLIAMS, and KONDUROS, JJ., concur.