Section II of VIII, Essentials and Clarity
Goals. You want the opposing party to obey the order. You want the trial court to enforce the order. You want the appellate court to sustain the order.
Child Custody. When preparing a custody order, review the definitions of joint custody and sole custody at S. C. Code Ann. § 63-15-210. Pay particular attention to granting joint custodians equal rights regarding major decisions. While the “judge may
designate one parent to have sole authority to make specific identified decisions,” “both parents retain equal rights and responsibilities for all other decisions.” While S. C. Code Ann. § 63-3-530(42) grants the family court jurisdiction to order joint or divided custody, Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1971), requires exceptional circumstances for shared or joint custody. Mixson remains good law fifty years later.
Child Support. If the opposing party is to obey the order, he or she must understand the order. A simple conclusion of law requiring child support should answer these questions, similar to those a good news reporter would ask.
- What is required? Pay child support.
- By whom?
- To whom?
- How much?
- How often? Weekly, bi-weekly, twice monthly, or monthly?
- Starting when?
- Ending when?
- How paid? Directly to the opposing party or through the court? If to the clerk
of court, directly or through wage withholding?
Visitation. Similarly, visitation orders should state who receives what visitation, the frequency, the starting date of the first visitation, the starting and ending times, where the child is received, where the child is returned, and who is responsible for transportation.
Standard of Proof. State the standard of proof applied by the trial judge. This is more than form. If the order finds a fact by “a mere preponderance of evidence” when the standard is “by clear, cogent, and convincing evidence,” look for a remand after the appeal. If the order does not state the standard of proof and the standard of proof is clear, cogent, and convincing, also look for a remand after the appeal.
Section III of VIII, Style
Every law office should have a style manual used by every one in the firm. I recommend both Legal Writing in Plain English by Bryan A. Garner, The Redbook: A Manual on Legal Style by Bryan A. Garner, and The St. Martin’s Handbook by Andrea Lunsford.
Each firm should prepare its own style manual for deviations from its primary style manual.
- File Book #. In state court, the correct term is File Book #. See Rule 79(a), SCRCP. It is not Calendar #, Docket #, Civil Action #, C.A. #, or Case #. In federal court, it may be a Civil Action #.
- Paragraph Numbers. Unlike pleadings, paragraph numbers are not required for orders; however, numbering each paragraph is a good practice and is helpful to the reader and to those discussing a particular provision. Number paragraphs consecutively using Arabic numerals in the Statement of the Case and the Findings of Fact. I number my paragraphs in the Conclusions of Law with small English letters.
- Numbers. Many lawyers spell numbers in English and then include the Arabic numbers in parentheses. This arcane practice is unnecessary and distracting. Use English words or Arabic numerals, but not both. The general rule is to spell numbers that take two words or less, such as twenty-three or ten dollars, and to use Arabic numbers that take three words or more, such as 123 or $47.
- Place of Signing. It is unnecessary to add the city and state at the conclusion of the order (I concede many judges do not agree). If a judge of the court signs the order, it does not matter where he or she signs it, whether it is in Rock Hill, South Carolina, or Kalamazoo, Michigan. Where the order is signed does not affect jurisdiction. However, the date may be critical for
I will post §§ IV Typography and V Typography Friday, June 11, 2021.