The Need for Findings

February 28, 2018 § 1 Comment

There’s not a whole lot of meat on the bone in the COA’s decision of November 7, 2017, in Sullivan v. Sullivan.

Janice and Wayne Sullivan agreed to a divorce on the ground of irreconcilable differences, with the chancellor to decide equitable distribution and alimony. Following a trial, the judge rendered an oral ruling, but there was no transcript of it. The final judgment did not reference the court’s ruling, and it did not mention the Ferguson or Armstrong factors.

On appeal the COA reversed and remanded for the court to analyze the proof through the Ferguson factors, and to clarify whether an alimony award was lump-sum or periodic.

It didn’t have to be that way. Here are some preventative steps you can take in a scenario such as this:

  • If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
  • If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
  • If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
  • Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”


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