Friday, September 16, 2005
CONSENT ORDER? AGREEMENT? NEITHER!
The South Carolina Court of Appeals has just rendered an Opinion in the case of Widdicombe v. Rachel P. Tucker-Cales f/k/a DuPree. The underlying facts are in dispute and the case is somewhat complex. However, the Opinion has the effect of advancing the "Lawyer's Protection Act;" essentially all lawyers get paid no matter what and the Court protects lawyers from screw-ups and bad backroom deals.
Although the Appellant Mother did not execute a Temporary Consent Order changing custody and claimed not to have authorized its execution, the Court held that she was bound by the Order on a permanent basis because her attorney had executed it. Additionally, she was ordered to pay her ex-husband's attorneys fees despite the fact that no evidence was submitted to the Court regarding her ability to pay those fees.
We are of the opinion that in order to be binding on the parties Consent Orders should be required to be executed by all parties and properly witnessed, just as any other contract. Additionally, no Temporary Consent Order of Custody should become a Final Order unless all parties appear before the Court and testify that the Agreement is fair and entered into voluntarily and the Court concludes that the Agreement is in the best interests of the child. And unless Financial Declarations are filed by both parties as required by the Family Court Rules, Attorneys Fees should not be awarded.
In this case, both the Trial Court and the Court of Appeals were so intent on enforcing the procedural rules of the Family Court and upholding "settled principles of the law of Agency" that they completely ignored their primary duties, which were to advance the best interests of the child and to insure that the parties "Agreement" was fair and equitable.
The South Carolina Court of Appeals has just rendered an Opinion in the case of Widdicombe v. Rachel P. Tucker-Cales f/k/a DuPree. The underlying facts are in dispute and the case is somewhat complex. However, the Opinion has the effect of advancing the "Lawyer's Protection Act;" essentially all lawyers get paid no matter what and the Court protects lawyers from screw-ups and bad backroom deals.
Although the Appellant Mother did not execute a Temporary Consent Order changing custody and claimed not to have authorized its execution, the Court held that she was bound by the Order on a permanent basis because her attorney had executed it. Additionally, she was ordered to pay her ex-husband's attorneys fees despite the fact that no evidence was submitted to the Court regarding her ability to pay those fees.
We are of the opinion that in order to be binding on the parties Consent Orders should be required to be executed by all parties and properly witnessed, just as any other contract. Additionally, no Temporary Consent Order of Custody should become a Final Order unless all parties appear before the Court and testify that the Agreement is fair and entered into voluntarily and the Court concludes that the Agreement is in the best interests of the child. And unless Financial Declarations are filed by both parties as required by the Family Court Rules, Attorneys Fees should not be awarded.
In this case, both the Trial Court and the Court of Appeals were so intent on enforcing the procedural rules of the Family Court and upholding "settled principles of the law of Agency" that they completely ignored their primary duties, which were to advance the best interests of the child and to insure that the parties "Agreement" was fair and equitable.
Comments:
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RACHEL PUTNUM-TUCKER CALES DID INFACT CONSENT TO THE TEMPORARY ORDER IN THIS CASE. SHE ALSO HAD ALL HER VERHICLES REGSITERED IN SC AT THE TIME OF FILING AND EVEN THOUGH SHE LIVED IN NC SHE WAS ON A MILITARY BASE IN A BIGAMOUS MARRIAGE IN WHICH SHE CLAIMED SOUTH CAROLINA HER HOME STATE. PRIOR TO THE FILING SHE HAD THE MINOR CHILD ALREADY INOLVED WITH SEVERAL CASES WITH D.S.S AT LEAST 2 WERE FOUNDED. SHE WAS ALSO ARRESTED AT THE TIME OF FILING THE EX-PARTE ORDER FOR VIOLATION OF PROBATION FOR CHECK FRAUD. AND YES THE CHECKS HAD HER SC ADDRESS ON THEM. THERE WERE MANY ISSUES AS TO WHY SC WAS THE HOME STATE AND HAD JURISDICTION AT THE TIME OF FILING MAINLY BECAUSE RACHEL ANSWERED AS TO BEING A RESIDENT OF SC FOR AT LEAST 1 YEAR PRIOR TO THE COMMENCEMENT OF PROCEEDINGS.
# posted by 
: 11:59 AM
: 11:59 AM
We took no position either on whether the South Carolina Courts had jurisdiction or whether custody was eventually awarded to the proper person. Our comment was restricted to suggesting that the Courts require that Consent Orders be exectued by all parties and that hearings be held to ascertain the fairness and voluntariness of these Orders. Unless we missed something in the Opinion, Ms. Putnum-Tucker did not actually execute the Consent Order.
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