When Is a Family Court Final Order Not Final?

South Carolina Court of Appeals overturns a Non-Appealed Final Order

Most of the time once the Family Court in South Carolina issues an order, if no one appeals the order, it becomes the law of the case and cannot be modified.  The only major exceptions, however, are those orders addressing child support, child custody, child visitation, and alimony orders.  These types of orders can always be revisited upon the showing of a substantial change of circumstances.  However, the Court of Appeals in South Carolina recently issued an order which now gives Family Court attorneys something to scratch their head about.  In the case of Ashburn v. Rogers, the Court of Appeals did something that an appeals court usually does not do: it overturned a final order of paternity that was more than 15 years old.  The order made a finding that a man was the father of a child. Even though the man was offered a paternity test at the time, he waived the test and admitted he was the father.  Approximately, 15 years later the man had a DNA test done that showed he was not the father of the child.  He requested that he be relieved of his future child support obligation. Even though he did not appeal the original order finding him to be the father of the child and requiring him to pay child support, the Court of Appeals ruled that it would be inequitable to require him to pay child support for a child that is not his although he admitted many years ago the child was his.

Although fairness probably played out in this case, it now becomes harder to advise clients whether an order is final or not. As lawyers we used to be pretty confident in telling clients that an unappealed order could never be changed. This seems to no longer be true.  Arguably, Ashburn v. Rogers seems to say that the court can overturn orders that were never appealed if they are later determined to be unfair.  It will be interesting to see what other orders are overturned based upon a fairness argument.

Rhett Burney

Attorney at Law
www.rhettburney.com
www.turnerandburney.com
864-228-1616
rdburney@turnerandburney.com

 

What is a Power of Attorney?

A Power of Attorney is a document that allows one person to authorize another person or organization to act on that person’s behalf.  For instance, a husband could sign a Power of Attorney which would allow his wife to take care of his financial affairs and other responsibilities in case he is unable or unwilling to take care of his affairs.

So, what happens if you do not have a Power of Attorney?  If you do not have a Power of Attorney and you become physically or mentally disabled to the point that you cannot handle your affairs, then someone like your spouse will have to bring a lawsuit in Probate Court in order to have your spouse appointed as your conservator.  Having to bring this type of legal action is lengthy and expensive.  For instance, a proper Power of Attorney will only cost about $200 while a legal proceeding in Probate Court will cost thousands of dollars.

Do you need a Power of Attorney? Absolutely!  We do not know what tomorrow will bring, but there is a good chance that at some point in our lives we will not be able to take care of ourselves.  Unfortunately, we do not know when that time will come, but it will come.  Good financial planning involves wise preparation.  If you do not have a Power of Attorney, please call me (864) 228-1616) or email me (rdburney@turnerandburney.com), and we can discuss in greater detail the benefits of having a Power of Attorney.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

The Judge Ordered Me To Pay My Spouses Bills?  Is this Tax Deductible?

Are Unallocated Support Payments Taxable Or Non-Taxable To The Spouse Making The Payments?

Sometimes in divorce cases a court will order a spouse to make unallocated support payments to the other spouse.  These payments are similar to alimony payments, but they are a little different because an unallocated payment is usually used for not only supporting the spouse, but they can also be for child support or for the payment of other bills.  Alimony is generally taxable to the spouse receiving the payment of alimony and tax deductible for the spouse paying the alimony.  Likewise, unallocated support is taxable to the supported spouse and deductible by the supporting spouse unless the court issues an order stating otherwise.  For a more in depth look at this issue read the case of Brown v. Brown, 375 S.C. 48, 650 S.E.2d 84 (2007). Every case is different so you need to talk with an attorney or a tax professional to discuss your specific situation.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

Top 5 Legal Questions Asked This Month

1) Should I sign a lease as a guarantor for my child?

-No, unless you don’t care about having to pay for the lease yourself when your child doesn’t.

2) Somebody wrote me a bad check what should I do?

-If someone wrote you a bad check they have committed a crime.  Most solicitor’s offices have a bad check office.  Report it to them immediately.  You can also sue them and receive three times the amount of the check.  In both cases, it is important to act as soon as you receive the bad check.  There is a small window of time to prosecute or collect the bad check.

3) What are the 3 most important documents I should have?

-Deed with joint right of survivorship, will, and Power of attorney.  Usually in that order.

4) Should I form an LLC or an S-Corp.?

-People ask me this question because they are wanting to protect their assets in case they get sued.  However, this question is not that simple to answer without having more information.  I advise people that we need to get their accountant involved because not only do we want to protect their assets in case they get sued, but we also want to protect their assets from being taken in the form of taxes.  Once we get their accountant’s input, then we usually get them started as an LLC or Corporation.

5) I was in a car wreck and medical provider will not take my health insurance.

-Your doctor or hospital does not want to be involved in your legal troubles.  You must insist that they file the claim on your health insurance even if the accident was caused by someone else.  Otherwise, you may be turned over to collections as you deal with the at-fault driver’s insurance company.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

Help!  My Parents are getting older and I don’t feel so good myself.

Let’s face it, getting old is tough. Most of us are not there yet, but our parents are.  Have you taken the time to make sure your parent’s affairs are in order in case they have health problems or die?  Do they have a will and a power-of-attorney?  Have they titled their home and other assets appropriately so they are not tied up in court and subject to creditor’s claims?

I understand it is not a topic most of us want to address, especially with our parents.  However, it is something all of us need to look into.  One reason the conversation needs to be had is that if your parents have not planned appropriately, you may be the one to have to pay to fix the problem. Second, if they have not taken the steps needed to protect themselves, their surviving spouse may have to unnecessarily spend money that they need to live.  Third, careful planning now may save relationships between other members of the family.  The worst fights I have seen in my legal career have been between family members over money.  Most of the fights could have been avoided with simple planning.

May I suggest one way to start the conversation with your parents?  Why not say, “Dad, my attorney was telling me a story about a family that would get together every holiday to celebrate; however, when one of the parents died without a will, the family fought so much over the parent’s property that they never spoke again.  Can you assure me that you have done everything necessary to insure we don’t have any fights like this in our family?”  I know talking about this legal stuff can be uncomfortable, but trust me, fighting those you love is even worse.  If you need any other ideas on how to approach an aging parent over these type issues, please let me know.  I have a list of them I’ll be glad to share.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

Restraining Orders in Family Court:  Can I still buy or own a gun?

If you are involved in a family court case in South Carolina, a judge may issue a restraining order in order to keep the peace between the parties involved.  It is very important that the restraining order be worded effectively.  Otherwise, it could be interpreted so as to prevent you buying or owning a gun.  Here is a suggestion on how a restraining order should be worded so as to lessen the likelihood of you being stopped from owning or buying a gun in South Carolina:

The parties are to abide by behavior restrictions, prohibiting behavior such as harassment, threatening, interfering with, bothering, molesting, disturbing, and/or intimidating. Further, both party shall be subject to a “no adverse contact order” (NACO) which shall restrain the parties from engaging, directly or indirectly, in any adverse conduct towards one another. This NACO shall permit the parties to contact, associate, communicate with one another only so long as both parties mutually consent to such contact, association, or communication. The parties acknowledge the purpose of this NACO is both to encourage and require civil contact communication between them, and this NACO) is not intended to trigger, implement, or affect any provision of the federal 18 U.S. Code, Chapter 44, nor is the NACO intended to rise to the level of, or be considered, an order of protection as defined in the South Carolina Protection from domestic abuse statutes. Provided however, the parties agree that willful violation of this NACO so subject the offending party to any action for contempt of court.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

Family Court Mediation in South Carolina

What is mediation and why is it important? Mediation is required in family court in South Carolina. Attorney Rhett Burney describes to us what mediation is like in and why it’s a good alternative to a lengthy divorce or custody legal battle. Rhett has been a certified family court mediator for over 10 years and has mediated hundreds of cases for not only his clients but also for other attorney’s clients. Watch this video as Rhett talks about family court mediation in South Carolina.

Click HERE for Video!