Author: a7d01c92_admin

The attorneys at Finklea Law Firm receive calls on a regular basis from men and women seeking advice and guidance for legal name changes. While the individual reasons for someone wanting to legally change his or her name vary from person to person, the process by which it is accomplished is the same.

If you are seeking a court order legally changing your name, you should contact an attorney who will submit, on your behalf, a petition in writing that specifically includes your reason(s) for requesting a name change, your age at the time of the request, your current place of residence, your place of birth, and the new name you wish to assume for future use. The requirements are set forth in South Carolina Code Section 15-49-10.

Additionally, South Carolina Code Section 15-49-20 sets forth the specific documentation that must be attached to your petition for a name change. Specifically, your attorney will perform on your behalf the following steps that will be required for a judge to consider your request:

Request a name change kit from the State Law Enforcement Division (SLED) that will contain information about ordering a background check and how to get your fingerprints done;

You will be required to visit your local law enforcement agency to get fingerprinted on a specific card provided by SLED. Upon being fingerprinted and filling out the background check form, we will forward the information to SLED with the required fee and they will issue you a certified background check;

You will need to obtain a verification from SLED that you are not listed on the sex offender registry;

You will be required to obtain a verification from the South Carolina Department of Social Services indicating that you are not listed on the Central Registry of Child Abuse and Neglect; and

A signed affidavit by you, the petitioner requesting a name change, stating whether you are under a court order to pay child support or alimony.

Once this documentation has been received, it is attached to your petition and filed with the court. Your attorney will then request a hearing where you will be required to appear before a Family Court Judge and provide brief testimony as to the reasons for the requested name change. Your attorney should review with you the questions that will be asked of you in court so that you will not be surprised or caught off guard by the specific inquiries. After hearing the testimony, and assuming there are no complications, the judge will sign the order granting you a name change.

~ Joshua A. Bailey (August 2013)

Attorney Gary Finklea explains the road widening project on Pamplico Highway and how local homeowners’ rights may be affected!

Unlike child support in South Carolina, there is not a specific mathematical equation to determine alimony. The courts consider a number of factors to establish whether alimony should be awarded in a particular case, what type of alimony should be awarded and how much. Family court judges have wide discretion in determining alimony.

The purpose of alimony is to place the supported spouse in a position to maintain the marital lifestyle. Permanent periodic alimony is just that…permanent. This type of alimony is generally paid monthly until the death of either spouse or the remarriage of the supported spouse. Rehabilitative alimony is generally paid monthly as well, but for a set period of time. Rehabilitative alimony can be awarded in cases in which it is proven that the supported spouse can become self-sufficient during a certain time period. Lump sum alimony is self-explanatory. The amount of lump sum alimony awarded is a fixed amount that can be paid all at one time or spread out in payments.

Family court attorneys are often asked about the role of fault and length of the marriage in the determination of an alimony award. While alimony will not be awarded in a case where the spouse seeking support has committed adultery, it can be awarded to a spouse who is “at fault” in other ways for the breakdown of the marriage. There is no magic number of years two people must be married before alimony becomes an option. Fault and duration of the marriage are merely two of many factors considered by the court.

Other factors considered by the court include the physical and emotional condition of each spouse; the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential; the employment history and earning potential of each spouse; the standard of living established during the marriage; the current and reasonably anticipated earnings of both spouses; the current and reasonably anticipated expenses and needs of both spouses; the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action; custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home or where the employment must be of a limited nature; the tax consequences to each party as a result of the particular form of support awarded (alimony is generally taxable to the supported spouse); the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and anything else that the court deem relevant in making its determination.

If you or your friends or family find yourself in a situation in which alimony payments may be an issue, contact me at Finklea Law Firm.

~ Brooke Chapman Evans

It has been ten years since the “South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act” was passed by the General Assembly and signed into law by Governor Sanford. The Act was adopted as a “tort reform” measure to preclude contractors from getting sued without first having an opportunity to correct alleged defects in the construction or renovation of residential dwellings. Though a decade old, many contractors, homeowners and attorneys often overlook its applicability. In fact, there is only one reported appellate court case applying and interpreting this Act.

The Act defines a “construction defect” as “a deficiency in or a deficiency arising out of the design, specifications, surveying, planning, supervision, or observation of construction or construction of residential improvements that results from any of the following:

(a) defective material, products, or components used in the construction of residential improvements;
(b) violation of the applicable codes in effect at the time of construction of residential improvements;
(c) failure of the design of residential improvements to meet the applicable professional standards of care at the time of governmental approval of the design of residential improvements; or
(d) failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction. Compliance with the applicable codes in effect at the time of construction conclusively establishes construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes.

The statute is codified at as S.C. Code § 40-59-840 and provides the procedure in which a claim should be made:
In an action brought against a contractor or subcontractor arising out of the construction of a dwelling, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor. The notice of claim must contain the following: (1) a statement that the claimant asserts a construction defect; (2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and (3) a description of any results of the defect, if known. The contractor or subcontractor shall advise the claimant within fifteen days of receipt of the claim if the construction defect is not sufficiently stated and shall request clarification.

Once the notice of the claim is mailed, the contractor has thirty days from service of the notice to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. Further the claimant must allow the contractor access to the property for inspection of the defect and if repairs have been agreed to by the parties, reasonable access to affect repairs. Failure to respond within thirty days is deemed a denial of the claim.

The claimant shall serve a response to the contractor’s offer within ten days of receipt of the offer. All communication between the contractor and claimant must be confirmed in writing. The Act states the original notice of claim and contractor’s election on how it will proceed must be sent via certified mail. If the parties cannot settle the dispute pursuant to this article, the claimant may proceed to file a lawsuit.

The statutory process is elementary and merely codifies common sense – people need to communicate to see if they can resolve their disputes before litigating. The Act however seems to create a number of unintended consequences which are detrimental primarily to homeowners. For example, must a claimant serve notice on a contractor who is defunct; should a claimant be excused for providing a right to cure if the contractor has already been made aware of the construction defects and refused to remedy them; should a claimant be allowed to counter sue in a claim brought by the contractor for non-payment despite not providing notice under the Act; should a claimant be precluded from suing if there a exigent circumstances such that repairs must be made immediately and there is not time to comply with the time periods set forth in the Act; should the claimant be excused for allowing the contractor to cure defects if there has been intervening circumstances involving the contractor such as criminal law violations or wide spread complaints of the contractor’s work product.

The one reported case interpreting the Act is Grazia v. South Carolina State Plastering, LLC, 703 S.E.2d 197, 390 S.C. 562 (S.C. 2010) and the Act was used to defeat a homeowner’s ability to pursue a class action by the Plaintiff. The homeowner in Grazia was complaining of defective exterior stucco work by South Carolina State Plastering, LLC in the construction of his and approximately 2,673 other homes in a development called Sun City. The Supreme Court held that not only did the Plaintiff have to comply with the notice requirements of the Act but each class member did too. Until there was compliance, the class action could not proceed, only individual and separate lawsuits by each class member provided they had complied with the Act.

Despite the good intentions of the Act, it creates a number of issues that will need to be resolved by the courts or legislature. However, until then, the Act may be useful to both contractors and homeowners in resolving disputes. The two underlying mandates of the Act, a cooling off period and forced communication, are good rules of thumb in resolving any disputes and ones which I encourage all to apply in any controversy.

~ Gary I. Finklea (July 2013)

Attorney Gary Finklea provides details on a current foreclosure defense case wherein the lender did not adequately process our client’s modification application, leading to a civil suit!

Attorney Gary Finklea provides information on what steps to take when your child has been injured and is entitled to an insurance settlement.

Attorney Gary Finklea explains certain commonly-misunderstood situations wherein the Magistrate’s Court would not have jurisdiction in legal cases.

A power of attorney can be an effective and inexpensive tool for handling general transactions and business affairs, but it does not come without pitfalls and risks. By definition, a power of attorney is an instrument in writing whereby one person, as principal, appoints an agent and gives that agent authority to act on his behalf. If the power of attorney is created as a durable power of attorney, the powers conferred remain effective even if the principal becomes disabled. Many of my older clients will give a family member a power of attorney as a mechanism to ensure that their business is properly handled as the principal becomes older and less capable of managing their affairs. 

The pitfalls of a power of attorney are evident, but the story of former University of South Carolina quarterback Corey Jenkins provides a perfect illustration. Jenkins was a talented football and baseball star at Dreher High School in Columbia, South Carolina. He signed a lucrative baseball contract worth over $500,000.00. Due to Jenkins’ limited expertise with money, he elected to hire a local management company to handle his business. This management company convinced Jenkins that he needed to give them power of attorney as part of their relationship. With the power of attorney, the company had full access to Jenkins’ accounts and the unlimited ability to enter him into contracts. Ultimately, the company wasted the money and entered Jenkins into several contracts without his full knowledge. While the individuals associated with the management company were indicted, Jenkins has never received restitution and he defaulted on many of the contracts.

The dangers associated with a power of attorney can be lessened by following several simple steps. It is imperative that the principal has a complete level of comfort with the agent. A good lawyer will advise a principal that the agent has potentially full authority to act on their behalf. Those powers could include buying property, endorsing checks, signing contracts and a litany of other functions. You should never give someone power of attorney unless a relationship of trust exists between the parties. Furthermore, it is completely acceptable to limit the power of attorney to certain functions. For example, Corey Jenkins could have designated in his power of attorney that the management company could only use his money to close on a new house for his mother. This option is called a limited power of attorney. Finally, the power of attorney is easily revoked under the law. If a principal changes his mind or becomes uncomfortable with an agent, the law allows a simple revocation of the power of attorney to be filed with the Clerk of Court.

If you have any questions or concerns, please feel free to contact the Finklea Law Firm to discuss the power of attorney in a greater detail.

~ Charlie J. Blake, Jr. (May 2013)

Attorney Gary Finklea finds case law concerning foreclosures and a rarely-known defense regarding assignments, also known as an ‘allonge’ in the legal community. This finding may help you save your home from being foreclosed upon!

Recent wind storms have done some damage to neighborhoods and homes in Florence and the surrounding communities. Aside from the power outages and debris left behind, fallen trees have damaged homes and property. Following the storms, I was often asked, “who is responsible when a tree falls from a neighbor’s property to an adjoining lot?” As with so many legal questions, the answer is not so simple.

To help illustrate the answer, let’s say that a storm topples a tree from Tom’s yard. It falls over the property line and demolishes Ann’s prized new BMW. Ann is understandably not happy, but is Tom legally responsible? If the tree that fell had appeared to be perfectly healthy and it was totally unexpected that it would fall, then Ann might strike him off of the list for the next neighborhood barbeque that she hosts, but she likely won’t be getting him or his insurance to pay for her car to be replaced. On the other hand, if the tree was clearly dead or dying and Ann can show that Tom knew (or should have known) that it was threatening her property, then Tom may indeed be on the hook for the new car and especially if Ann had previously complained to Tom about the condition of that same tree.

As a property owner, particularly in a residential area, it is a good idea to keep a check on your trees so that they do not pose harm to your family or your neighbors. If you are in Ann’s position and feel that your neighbor’s tree is a danger, do the neighborly thing and discuss it with them before trying to seek other remedies. Often times, neighbors will agree to split the cost of having the damaged tree removed. If you cannot convince the neighbor to do anything and you feel strongly that the tree is a danger, you may be able to get assistance from the city (if you are within city limits) or your utility company. As a final option, you might be able to sue for allowing a nuisance, but this route is clearly a last resort as it results in bad blood between neighbors. If possible, avoid attempting to trim or cut the tree yourself.

As with any legal matter, feel free to contact the attorneys at this office if you are unsure of your legal rights.

~ J. Greg Hendrick (April 2013)