I recently defended a motion in which the timing of the submitted affidavits has me considering whether South Carolina Rule of Civil Procedure 6(d) violates due process.

An opposing attorney filed a motion for sanctions under Rule 37(b)(2), SCRCP, when my clients failed to answer discovery within the deadline set under a prior court order.  As required by Rule 6(d), SCRCP, the moving party submitted a supporting affidavit with the motion.  As required by that same rule I served my opposition affidavit two business days prior to the hearing.

However, the opposing attorney also served me with additional affidavits two business days prior to the hearing.  This is allowed under Rule 6(d), as the rule specifically states that, “… additional or opposing affidavits may be served not later than two days before the hearing…” (emphasis added).  This was the first time I have defended a motion in which the moving party filed additional affidavits two days prior to the hearing.

A moving party’s ability to file a cursory affidavit with the initial motion and then serve the bulk of the supporting affidavits two days before the motion–essentially enabling the moving party to sandbag the defending party–would appear to violate due process.  As the South Carolina Supreme Court frequently notes, “[p]rocedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.” Moore v. Moore, 376. S.C. 467, 657 S.E.2d 743 (2008).

Further, the ability to file reply affidavits to these affidavits filed within two days of the hearing is limited, under Rule 6(d), to the moving party.  “The moving party may serve reply affidavits at any time before the hearing commences.” (emphasis added).  The ability for the moving party to file reply affidavits while the defending party cannot file affidavits responsive to those that the moving party files two days before the hearing certainly violates due process by precluding the defending party from confronting witnesses or introducing evidence to counter the additional affidavits.

Contrast the South Carolina rule with the Federal rule of procedure which states that “Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.” FRCP 6(c)(2).  Under the Federal rule, all supporting affidavits must be served with the motion and all opposing affidavits must be served seven days before the hearing.  This comports with due process.

In the motion at issue the moving parties’ additional affidavits did not raise any new issues that I felt needed addressing.  However, the ability of a moving party to serve additional affidavits two days before the hearing without the defending party having a right to respond is a due process violation.  The South Carolina Supreme Court, which oversees changes to the South Carolina Rules of Civil Procedure, should amend Rule 6(d).  Until it does, a defending party can probably argue that due process gives that party the right to file reply affidavits to any affidavits the moving party serves shortly before the hearing.

In the November 21, 2012 advance sheet, the South Carolina Supreme Court promulgated new rules regarding family court temporary hearings (pages 5-6) and docketing of trials (page 9).  The temporary hearing rule is effective immediately for all newly filed motions.  The docketing rule goes into effect for all cases set on or after January 7, 2013.

The temporary hearing rule requires most temporary hearings to be set within four weeks, to only be set for 15 minutes, and limits each litigant to eight pages of affidavits–excepting fee affidavits and supporting exhibits.  Parties wishing to extend the fifteen minutes limit to thirty minutes must request additional time from the Clerk of Court and will not be held to the eight page document limit set.  Further, the Supreme Court promulgated a new form that must be submitted by each party at the temporary hearing: Background Information Sheet Form SCCA 459.

Attorneys requesting a Temporary Hearing must designate on the Motion for Temporary Relief the name of opposing counsel if known.  Attorneys representing the moving party shall list all conflict dates and times when requesting a hearing on Motions for Temporary Relief.  The Clerk of Court shall coordinate the scheduling of Temporary Hearings with all counsel known to be involved in the case

The order regarding trial docketing reads:

IT IS ORDERED that an ABC Trial Roster shall be set for each term of family court. Any contested case set for three or more hours shall be designated as the “A” case. Each “A” case is to be backed up by a “B” case and a “C” case.  If the “A” case goes to trial, the “B” and “C” cases are to be continued and rescheduled as an “A” case. If any of the “A”, “B”, or “C” cases settle, the presiding judge shall conduct a hearing(s) to approve the settlement(s) and dispose of the case(s) before commencing the contested case.

Basically, one can only be listed as a standby case once and if the case is not called on the standby date, one will be assigned a day certain.  Left unanswered is how much notice a party or attorney is entitled to before a standby is converted into a day certain.

As for the limitation on affidavit pages, with some exceptions I do not believe one can properly represent a client in a contested temporary hearing involving custody with a limitation of eight pages of affidavits.  There are many temporary hearings involving alimony in which I believe it inadvisable to remain within the eight page limit, especially when fault is a major factor in the alimony or when the parties’ incomes or expenses are in dispute.  For such situations, one should probably request a half hour hearing.

While the new temporary hearing rule encourages counsel to communicate before setting a temporary hearing, that is often not possible when a new action is filed.  It is unclear what the procedure is when a moving attorney seeks a 15 minute hearing and the defending attorney appears and wishes to present more than eight pages of affidavits.  One would assume that the hearing would have to be continued–rather than the defending attorney being limited against his or her will to eight pages of affidavits–but this new rule fails to address that issue.

In the November 21, 2012 opinion of Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012) the South Carolina Supreme Court clarifies the effect of filing a notice of appeal on the enforcement of temporary orders.  Here the family court issued a temporary order requiring Husband to vacate the marital home.  Husband refused to do so and Wife then filed a rule to show cause over Husband’s refusal.  Husband then filed a notice of appeal of the temporary order.

At the contempt hearing, Husband argued the filing of the notice of appeal stayed the temporary order and thus divested the family court of jurisdiction to proceed with the contempt hearing.  The family court judge summarily rejected Husband’s argument.  Husband was held in contempt and sanctioned.  Husband then appealed the contempt order and withdrew his appeal of the temporary order.

The Supreme Court affirmed the finding of contempt against Husband and found that a “notice of appeal from a temporary order does not, standing alone, operate to stay the effect or enforcement of the order.”  The Court noted that Husband’s remedy was to file a petition for supersedeas but that such a petition:

[W]ould [not] have been justified here.  The award of temporary possession of the marital residence, while clearly important to the parties, neither constitutes a “substantial right” within the meaning of section [S.C. Code §] 14-3-330(2) nor generally raises an issue warranting immediate appellate court intervention.

Justice Pleicones dissented and I believe his dissent is essentially correct.  He noted that S.C. Code “§ 14-3-330(4) permits the immediate appeal of a temporary injunction issued by the court of common pleas in a law case and I would analogize the grant or denial of temporary relief in a domestic action to such an injunction, and hold it is immediately appealable.”   He further noted that “[e]xceptions to the automatic stay rule are found in [SCACR], Rule 241(b), in statutes, court rules, and case law” and highlighted examples of issues family court issues such as support, custody and temporary attorney’s fees that fall within this rule’s exceptions.

From this analysis he concluded:

In order to determine whether appellant’s appeal of the temporary order awarding respondent exclusive possession of the marital home and requiring appellant to vacate acted as a stay, it is necessary to determine the nature of that order.  If it was in the nature of support, then appellant’s appeal did not act to automatically stay the requirement that he leave the home.  If, however, that order was in the nature of equitable division, then the appeal acted as an automatic stay.

As I read the family court’s order of November 24, 2010, it is unclear whether respondent was awarded possession of the home as a component of support or as temporary equitable division. Thus, it is unclear whether appellant’s appeal of that order acted as a stay of the requirement that respondent receive exclusive possession of the marital home pendente lite. It is well settled that an individual may not be held in contempt for failing to comply with an ambiguous order.

Citations omitted.

While the Terry majority further limits a family court litigant’s remedies to appeal a temporary order, it appears Pleicones would have granted even greater appeal remedies from such orders:

[I]t cannot be denied that, for example, final custody determinations can be influenced by the status quo during the litigation, especially if that process is lengthy.  Thus, allowing an immediate appeal and supersedeas in appropriate custody cases can result in fairness to both parties at the final hearing.

If family court temporary hearings comport with due process, they do so only minimally.  One rarely gets to review or respond to the opposing party’s affidavits prior to the court’s determination and one almost never has the opportunity to cross examine the opposing party’s witnesses.  Yet Terry makes no family court temporary order subject to the automatic stay upon appeal and creates additional hurdles to having such orders reviewed by the appellate court.

Finally, the Terry majority notes more clearly than in any reported opinion that one can (and probably must) seek remedies from erroneous temporary orders at the final hearing:

Perceived errors in family court temporary orders are to be redressed as they always have, at the final hearing. For issue preservation purposes, any such challenge must be placed on the record at the commencement of the final hearing.  The family court has wide discretion in fashioning equitable relief, including the authority to make adjustments in the equitable distribution and otherwise to remedy an error in the temporary order.  If a party desires to challenge the family court’s final resolution of the matter, the aggrieved party may appeal from final judgment.

Before 2004, when SCRCP 3(a), was revised, it was strategically advantageous to serve a family court complaint as soon as it was filed.  This was because, up until 2004, SCRCP 3(a) stated that an action was “commenced” when a summons and complaint was served.

Because of this some defendants or their attorneys, if aware that a complaint had been filed but not yet served, would rush to file and serve their own family court complaint.  Because the action commenced when served, their complaint would have primacy–even though it had been filed second.  Why they preferred the primacy of being the Plaintiff is something I have not generally understood (unless they could obtain a better selection on venue by having primacy) as I prefer the advantage of observing the opposing party present his or her case in chief before I have to respond–i.e., I generally prefer representing the defendant.  However if one preferred being the plaintiff one could obtain primacy if the opposing party delayed in serving the complaint.

However SCRCP 3(a) changed in 2004.  Now an action is commenced upon the filing of the summons and complaint–as long as they are served within the statute of limitations period.   Nothing in family court has a statute of limitations.  Thus, in theory, one can wait months or even years to serve the complaint (I suspect, in practice, one would encounter a due process argument if one delayed too long in serving the complaint).  However one no longer loses primacy if the opposing party files and serves an action upon becoming aware that one has filed, but not yet served, an action regarding the same matter.

This does not prevent attorneys from sometimes rushing to file and serve an action if they discover one has already filed, but not served, a complaint.  These attorneys will then argue that the cases should be consolidated or that their case should have primacy. SCRCP 12(b)(8) should stop such nonsense. That rule allows for dismissal of an action when “another action is pending between the same parties for the same claim.”  Assuming my client wants primacy and the opposing attorney refuses to dismiss the later-filed complaint, a motion to dismiss brought under that subsection should remedy the matter.

While one cannot delay too long in serving a filed summons and complaint, there is no longer an advantage to be obtained by filing second but serving first.  Thus, unless the complaint accompanies a motion for temporary relief that needs to be served timely in order to provide timely notice, I routinely allow pro se defendants the opportunity to voluntarily accept service.

Ever since a local family court judge got defrocked for presiding in a case in which she had an alleged conflict, South Carolina family court judges have often been recusing themselves when there is a claim of conflict, bias, or improper conduct.  This has, unwittingly, led to what I label pro se judge shopping, in which a pro se party’s conduct leads a judge to recuse him or herself rather than remain on the case and sanctioning the pro se’s improper conduct.

I am aware of a couple of cases in which a pro se has filed a lawsuit against a family court judge–with such lawsuits almost always being dismissed early in the proceedings–which led to the judge recusing him or herself from further proceedings on this case.  Since such pro se litigants only file lawsuits against judges whose ruling they are unhappy with, the result is that the pro se litigant eliminates a judge who may be familiar with the case and with the pro se’s conduct, and sympathetic to the opposing party’s position.  In theory the pro se litigant could keep filing lawsuits–and getting judges recused–until he or she gets in front of a more sympathetic judge.  Lately, I have seen family court judges recusing themselves merely because the pro se litigant has sent repeated ex-parte communications to the judge.  This makes it even easier for a pro se litigant to eliminate judges they do not like from considering their cases.

One can sympathize with these judges’ actions.  Canon 3(E)(1)(a) of the South Carolina Code of Judicial Conduct reads:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding…

A judge who has been sued or who has received numerous ex-parte communications from a pro se party is being cautious in recusing him or herself, as the pro se party could plausibly argue that the judge violates this canon by not stepping aside.  The problems with judges doing this is that their recusal rewards conduct that would almost certainly get an attorney sanctioned for violating Rule 8.4(e) of the South Carolina Rules of Professional Conduct, which states: “It is professional misconduct for a lawyer to: … (e) engage in conduct that is prejudicial to the administration of justice.”

Though I would like judges to be brave enough to hold that a pro se party’s mere filing of a lawsuit against them is not sufficient to reasonably question those judges’ partiality, I don’t expect such bravery absent a clear indication from our Supreme Court that the filing of such lawsuits doesn’t necessitate recusal.  However judges have an excellent remedy for pro se parties who send numerous ex-parte communications: civil and then criminal contempt.

Rather than allowing pro se parties to send so many ex-parte communications that judges feel compelled to recuse themselves, such judges could warn such parties that inappropriate ex-parte communications are prejudicial to the administration of justice and that such future communications will result in potential contempt sanctions.  They should then initiate contempt proceedings if the inappropriate ex-parte communications continue.

As the legal culture now stands, family court judges are rewarding pro se parties who engage in acts that would get attorneys sanctioned, and allowing these pro se parties to eliminate judges they don’t like and shop for judges they do.  I might suggest that judges even violate Canon 3(B)(1)–“A judge shall hear and decide matters assigned to the judge except those in which disqualification is required”– when they recuse themselves based on an pro se litigant’s inappropriate conduct.  Advantaging unethical conduct is hardly the way to insure justice.  Family court judges need to show some fortitude and stop rewarding–and begin punishing–pro se parties for this behavior.

My colleagues frequently recount war stories in which their attempts to obtain substantive relief on a temporary basis early in the case failed while subsequent discovery uncovered evidence that might have led to a different temporary result.  By then it is typically difficult if not impossible to obtain the requested relief until trial (or to settle the case on favorable terms until trial is imminent)–and it takes substantial time and expense to prepare a family court lawsuit to the point in which trial is imminent.  Too often the clients of these attorneys have to reduce their goals–sometimes substantially–because they failed in their premature attempt to obtain substantive temporary relief.

Yet nothing in the rules of family court procedure compel a litigant to file a motion for temporary relief at the same time one files the summons and complaint.  While absent a pendente lite change of circumstances one is only entitled to one motion for temporary relief, the plaintiff has almost complete discretion when to make that attempt.

In many lawsuits discovery will be useful in obtaining substantive relief: whether to obtain evidence from the other party that might bolster one’s own case; to have a guardian investigate circumstances regarding each parties’ care of the child(ren); to depose witnesses who might support one’s position but who will not willingly provide affidavits; to depose witnesses who support the other party but might provide helpful testimony under oath; or to subpoena^[1] important documents from third parties.  In these cases a better strategy is often to file a motion for discovery, appointment of a guardian ad litem, or for drug, alcohol or mental health testing with the initial complaint and then seek substantive temporary relief after one has developed the necessary information.  While this strategy cannot be used in emergency circumstances, in most real emergencies one should be able to obtain substantive temporary relief without discovery or a guardian.

When a party loses a motion for temporary relief that subsequently uncovered evidence indicates that party should have won, it should be considered a strategic mistake in seeking this relief prematurely.  Only because attorneys reflexively seek their temporary hearing when filing a complaint is this failure not more clearly understood.

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[1]While there is some argument that because the South Carolina Rule of Civil Procedure regarding subpoenas, SCRCP 45, does not fall within the rules labeled discovery, SCRCP 26-37, one can issue subpoenas without obtaining the order of discovery that South Carolina Family Court Rule 25 might require.  However some attorneys and judges believe otherwise and, absent an order of discovery, a motion to quash a subpoena is always a possibility.  Even if that motion is not granted it might delay the acquisition of the subpoenaed records until after the motion for substantive temporary relief is heard.  The safer approach is to obtain an order of discovery, issue the subpoena(s), obtain the desired records, and then seek temporary substantive relief.

Not infrequently a claim of abuse or neglect against one parent will lead another parent to seek custody.  Other times a private custody case will lead to a referral to the Department of Social Services (DSS), which leads that agency to bring an abuse and neglect proceeding.  Either way, the result is concurrent DSS abuse and neglect and custody proceedings.

Such simultaneous proceedings create common procedural and budgetary issues.  DSS will not want the cases consolidated because DSS wants to simply focus on abuse and neglect issues and will not want to become involved in the private custody case.  However, having the same testimony repeated for the abuse and neglect proceeding and the private custody case wastes judicial resources and requires additional attorney and witness fees.  Further separate trials can lead to inconsistent results if one judge finds abuse or neglect while another judge awards that party custody or if one judge fails to find abuse or neglect but the second judge refuses to award a party custody upon the belief that this party abused or neglected the child.

A few years ago, I devised a solution that mitigated the problems and waste inherent in separate trials while protecting DSS’s desire to stay out of the private custody dispute.  This resolution involved partial consolidation on the following terms:

• The cases would be heard by the same judge in the same term of court
• The DSS case would proceed first and at its conclusion the private case would begin
• All testimony elicited in the DSS case could be considered by the trial judge in the private case on all issues without the necessity of recalling these witnesses
• The parties to the private case could recall any witness from the DSS case in the private case

This resolution allowed both cases to be heard by the same judge, eliminating the risk of inconsistent results.  The DSS case proceeded first and, because the parties to the private case could recall any witness, they could limit their examination of those DSS-case witnesses to abuse and neglect issues with the knowledge that they could later recall these witnesses to testify on remaining custody issues.  This enabled DSS to proceed as though the private case did not exist.

However, because the testimony elicited in the DSS case could be considered in the private case, and because the same judge decided both cases, the expense and waste of duplicative testimony was eliminated.  While the case settled mid trial, the opposing attorneys and trial judge all thought it was a wise solution to this recurring problem.  It’s a resolution I recommend in all my cases in which both private custody and DSS abuse and neglect issues overlap.

News today from the South Carolina Judicial Department announced a March 14, 2013 Supreme Court order making Berkeley, Charleston and Dorchester Counties subject to mandatory alternative dispute resolution for “cases filed in the circuit court and the family court on or after June 1, 2013.”  Previously the local family courts were pretty uniform about requiring mediation for all cases that required more than two hours of docket time.  Now any contested case is going to require mandatory mediation.

This will certainly benefit local family court mediators, who stand to obtain even more business.  It will further benefit the wealthier litigant, who can force the opposing party to jump through the expense of mediation prior to getting “their day in court.”  I’m not sure if this change is beneficial otherwise.

Typically, family court cases that have the potential of settling in mediation get mediated.  However, when I have to deal with an unreasonable pro se I don’t want the hurdle of mediation to come between my client and a trial.  My two family court trials the past three weeks have both been against pro se parties and neither case would have benefited from mediation.  We just needed to get to court and let a judge make a decision.

My impression of many of the recent Supreme Court rule changes regarding family court is that they appear reasonable but really do little more than add litigation expenses.  Mandatory mediation is yet another example of a rule change that ultimately benefits the legal professional more than the client.

I’ve had a few cases in which the issue of what constitutes “personal property” has been the subject of debate.  The understanding of the typical litigant is that such property is the household furnishings–what a homeowner’s policy might consider “contents.”  However, from a purely legal standard, personal property is any property that isn’t real estate.  Under this definition, financial accounts, debts, securities, and business are included in “personal property.”  This ambiguity becomes germane when family court litigants settle “personal property” issues with one party believing that the household contents have been resolved and the other party believing only real estate remains at issue.

Such ambiguity was an issue in the April 17, 2013 Court of Appeals opinion in Schultze v. Schultze, 741 S.E.2d 593 (S.C. App. 2013).  Wife appealed the family court’s equitable distribution award that gave Husband a portion of her retirement, successfully arguing that the family court could not equitably divide this asset because the matter had been resolved prior to trial.

In support of Wife’s position the Court of Appeals noted that Husband had filed an affidavit at the temporary hearing stating, “To the best of my knowledge, my wife and I have already divided all of our personal property, as we have been separated for over three years.”  The subsequent pre-trial order did not contain checks in the corresponding box for “equitable apportionment of personal property.” Below that list within the same order, paragraph four was checked, which read, “The parties stipulate that all marital personal property has been divided to their mutual satisfaction.”  Further in their pretrial trial briefs, each party indicated personal property had been resolved, with Wife’s pretrial brief emphasizing that this included “retirement accounts.”

At trial Husband sought an equitable distribution of Wife’s retirement account.  The family court awarded him fifty percent of her retirement account—$21,463 plus any passive gains or losses.  Wife appealed.  The Court of Appeals reversed this award, finding that the pre-trial order controlled the family court’s ability to divide this account:

A pretrial order “limits the issues for trial to those not disposed of by admissions or agreements of  counsel” and “controls the subsequent course of the action . . . .” Rule 16(b), SCRCP. Thus, both parties and the court considered the issue of equitable division  of personal property to have been resolved before trial.

After representing to the court that all issues regarding personal property were resolved, John [Husband] was required to take formal action to bring the issue back before the court. See id. (explaining the pretrial order “controls the subsequent course of the action, unless modified on motion, or at the trial to prevent manifest injustice” (emphasis added)). If John wanted the court to disregard the parties’ agreement and consider personal property in its equitable division, he was required to make a motion or otherwise ask the family court to do so. John did neither.

Wife was not successful in arguing that this same pre-trial order precluded the family court from making her pay 25% of Husband’s debts:

Heather [Wife] pled equitable apportionment of property in her complaint, thus the issue of dividing the marital debts was presented to the court. Even though the family court left the issue of “marital debts” unchecked on the pretrial order, paragraph five was checked, which required the parties to exchange a list of marital debts before trial. Unlike the issue of personal property discussed above, the division of marital debts was still at issue prior to trial. Therefore, the issue was properly before the family court, and the court did not err in addressing it.

Wife further argued that she should not be required to pay any of Husband’s debts because he “presented insufficient evidence as to the marital purpose of the debts or their balance on the date of separation or filing.”  The Court of Appeals rejected this argument, noting Wife had the burden of proving that debts incurred during the marriage were not marital and that she presented minimal evidence regarding these debts.

Finally, Wife appealed her attorney fee award as insufficient.  Because the Court of Appeals granted her favorable results on her retirement, it remanded the award of attorney’s fees.

In implicitly finding that the issue of Wife’s retirement was not tried by consent, the Court of Appeals noted that the amount of her retirement was relevant on the issues of alimony and attorney’s fees.  The amount of Husband’s debts would be relevant on these same issues and I am unsure why a requirement of exchanging a list of marital debts therefore leads to a conclusion that these debts remained subject to equitable distribution when the pre-trial order indicated personal property had been resolved.

Further, while I understand why a court might consider retirement accounts to be “personal property,” I can also understand why Husband might not have considered it such.  However kudos to Wife’s attorneys at the McDow Law Firm for making this relatively novel argument and using the pre-trial order as a basis to reverse this equitable distribution award.

Two clear lessons from Schultze.  First, do not indicate “personal property” is settled if it is merely household furnishings that have been resolved.  Second, pre-trial orders are going to start limiting trial issues in family court.  If an issue that is settled or resolved in the pre-trial order subsequently becomes unresolved, the safest practice is to file a motion to amend the pre-trial order.

Two years after the United States Supreme Court reversed the South Carolina Supreme Court in Turner v. Rodgers, 131 S.Ct. 2507 (2011), I see no evidence that our family court system has taken any of Turner’s ruling to heart.  This is partially the fault of our state Supreme Court, which has failed to exercise its rule making authority pursuant to Article V, § 4, of the South Carolina Constitution.  It is partially the fault of the legislature, which, under that same constitutional provision, has concurrent authority to create procedural rules.  It is partially the fault of the family court system, which has largely failed to apply the holdings of Turner.   However the systemic denial of due process in family court civil contempt collection proceedings, that I noted before Turner, continues.  It is a disgrace.

One thing noteworthy about Turner is that the United States Supreme Court reached an issue not addressed by the South Carolina Supreme Court in order to reverse our state Supreme Court.  It did so despite upholding the primarily holding of the state court decision–that there was no due process right to mandatory appointed counsel for indigent defendants in civil contempt collection proceedings.  In addressing an issue not raised by appellant in the lower court, the United States Supreme Court not only reversed the state Supreme Court’s decision, it also laid out explicit, if not necessarily clear, rules for insuring that family court support collection proceedings comported with due process.  I assume it did this because it had the same concerns regarding South Carolina’s unconstitutional procedures that I had previously noted.

Of great concern to the United States Supreme Court was that South Carolina was doing an inadequate job on the “ability to pay” issue of civil contempt proceedings, leading to the danger that what were ostensibly civil contempt proceedings were imposing defacto criminal contempt sanctions:

Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question.  Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.  And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.

Id. at 2518 (citations omitted).

The South Carolina family courts have utterly failed to assure accurate decisionmaking in respect to the key “ability to pay” question.  Many other states handle these civil contempt proceedings by having family court judges make two separate determinations: the first on the contemnor’s “out of compliance” amount and the second on what the contemnor has the present ability to pay.  To qualify as civil contempt incarceration can only occur until the present-ability-to-pay amount is paid.  Two years after Turner, I have yet to encounter a civil contempt order explicitly making these two distinct factual findings.

Further, in deciding that court appointed counsel was not uniformly required for indigent defendants in civil contempt proceedings, the United States Supreme Court noted that procedural safeguards could reduce the risk that such defendants were erroneously deprived of liberty:

[T]here is available a set of “substitute procedural safeguards” which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

Id. at 2519 (citation omitted)

Two years later there is no uniform procedure to insure that these procedural safeguards are put in place.  Nothing in the current South Carolina Supreme Court promulgated rule to show cause form provides “notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding.”  The current form, SCCA 415, was last modified before Turner, in December 2009.  The financial declaration form, SCCA430, is not routinely or uniformly provided to defendants with the rule to show cause and often such defendants are first asked to fill such forms out at the courtroom during the rule hearing.  I’ve not heard of family court judges asking such defendants questions about their ability to pay triggered from these financial declarations.  The South Carolina Supreme Court promulgated civil contempt order for non support, SCCA 437, requires an explicit finding on the amount of arrears but no explicit finding on the amount the contemnor has the current ability to pay.

Further, one important holding apparently lost on everyone is that the right to court-appointed counsel, while not absolute, was mandated by the United States Supreme Court for family court collection proceedings in which the opposing party was represented by counsel:

We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

Id. at 2520 (first emphasis in original; second emphasis added).

Note the emphasized conjunction in the final sentence.  Under Turner, even if the state provides these alternative procedural safeguards, it must still provide indigent defendants counsel if the opposing parent or other custodian is represented by counsel.  Yet the South Carolina family courts read Turner as not imposing a right to indigent counsel under any circumstances and continue to deny indigent defendants counsel even if the opposing party is represented by counsel.

I don’t handle civil rights cases but some intrepid attorney could make a reputation and some money challenging the due process-denying methods that South Carolina continues to utilize in prosecuting civil contempt support collection.  Two years after Turner, we haven’t learned any lesson from our United States Supreme Court spanking.

Recently I was an expert witness [for the first time in my career] in a legal malpractice case.  I was asked to provide an opinion about the standard of care for a family court attorney who had failed to file an answer and counterclaim.  This led to his client being precluded from seeking relief she wanted at trial, as a result of which she negotiated an unbeneficial resolution of her custody/relocation case.  Her malpractice claim settled in mediation for over $50,000.  It was an expensive lesson for her family court attorney.

Some South Carolina family law attorneys feel there is little consequence for failing to file an answer and counterclaim.  They note SCRFC 17(a), which reads, “The defendant [who has failed to file an answer] may be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees.”  They might even be aware of Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct. App. 2011), in which the Court of Appeals remanded the issue of alimony back to the family court despite the Defendant’s failure to file an answer.  From this they glean that filing an answer and counterclaim isn’t necessary.  They’re wrong.

The Defendant/attorney in the malpractice case had, in my opinion, made three mistakes that are common among family law attorneys but easy to avoid.  The first mistake was failing to obtain the family court file from the court when his client retained him.  Had he done so he would have noted that no answer had been filed.  Too often attorneys rely on what their clients bring to them to determine the status of a family court action.  That’s a mistake.  Often litigants don’t have a complete file or will have unfiled copies of documents that may–or may not–have been filed in the family court.

Just last week I was retained by a Plaintiff who brought me a file that did not contain an affidavit of service but did contain an unfiled financial declaration.  A review of the online docket indicated that no affidavit of service or financial declarations had been filed for a case that was about a year old.  These are problems.  A bit of checking revealed that the Defendant had been served but that the affidavit of service had never been filed with the court.  Had we proceeded to a final hearing without an affidavit of service in the court file, the court may have continued the hearing.  Without her filed financial declaration in the court file, it would be hard for me to complain to the pro se Defendant that he hadn’t filed his financial declaration.

When taking over in a case that has already been filed with the family court, one should always obtain a copy of the file directly from the family court.  In Charleston County, where my office is located, an emailed request to the clerk will result in her emailing you adobe PDF files of every document that’s been filed in the case.  Without these documents, one cannot properly understand the factual issues in the case, the past representations made by the parties and their witnesses in court, the procedural status of the case, and what orders the client is expected to follow.

Defendant/attorney’s second mistake was not taking note when Plaintiff’s attorney filed a Motion for Default Judgment [one should similarly take note when a Plaintiff’s attorney files or has filed an affidavit of default].  Receipt of this motion or an affidavit of default is a warning that Plaintiff’s attorney intends to preclude the Defendant from seeking affirmative relief at trial.  At that point, Defendant’s counsel must file a motion for leave to file an untimely answer and counterclaim.

Pursuant to Rule 55(c), SCRCP in order to file an untimely answer and counterclaim after the entry of a default order one must demonstrate “good cause shown.”  The standard is even lower when no default order has been filed–and in family court default orders are not issued until the final hearing.  See Rule 17(b), SCRFC (“In domestic relations matters, the provisions of Rule 55, SCRCP, regarding orders of default shall be made in the final order issued by the family court.”).  In practice, I have yet to see the family court deny a Defendant the right to file an untimely answer and counterclaim if the case has not been set for trial.  Had this attorney sought leave to file an untimely answer and counterclaim he could have avoided a malpractice claim.

Defendant/attorney’s third mistake was not seeking leave to file an answer and counterclaim during trial.  In this case his client wanted “permission” to relocate with the children out of state.  Pursuant to the temporary order, and with the Plaintiff’s consent, she had moved with the children out of state.  The guardian had conducted a home study of her new residence and the guardian’s report addressed the relocation issue.  Given such facts, Plaintiff could hardly claim prejudice in the Defendant filing a formal counterclaim to seek relief that had been litigated.

Rule 15 (a & b), SCRCP would have seemed to give his client ample grounds for such a pleading.  Rule 15(a) allows “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party.”  Rule 15(b) covers the amendment of pleadings during or after trial and allows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

The key word in both of these subsections is “prejudice.”  When issues have been litigated but not plead it would almost be impossible to show prejudice from an untimely pleading.  Here the Defendant and the children had been living out of state for some time prior to trial and Plaintiff was obviously aware of Defendant’s desire to have her and the children remain there.  However one has to know the rules of civil procedure to make this argument and to seek leave for such a late answer and counterclaim.

The mistakes I saw this Defendant/attorney make are common but also beneath the standard of care.  As his experience shows, failing to avoid them can be costly.

A couple times each year I will get contacted by a family law litigant who failed to show up for trial and wants to appeal the resulting one-sided order.  However since an appeal can only address the record made at the final hearing–a hearing in which only one side presented testimony and evidence–there is rarely good grounds for appeal.

However if the litigant had good cause for not appearing at trial there is another solution to that client’s problems–a motion to vacate the final order brought pursuant to South Carolina Rule of Civil Procedure 60(b).  That rule provides a number of bases upon which one can reopen a case and obtain a new trial.  The four most typical bases for this motion when the litigant failed to appear for trial are: 1) the litigant was never properly served with the notice of final hearing; 2) the litigant had good cause for failing to show up at the final hearing; 3) there was not personal jurisdiction over the defendant; 4) the court lacked subject matter jurisdiction to hear the matter.

Rule 17(a), SCRFC sets the notice  requirement for a final hearing in family court:

In domestic relations matters, even though the defendant does not file an answer, notice of the time and date of the merits hearing shall be given to the defendant. If the defendant is not represented by counsel, notice as required by this rule shall be sufficient if mailed to the defendant at his last known address, by certified mail, return receipt requested.

Though this rule specifically applies to Defendants, I have seen the court apply it to Plaintiffs where the Defendant set the final hearing and the Plaintiff is pro se.  Further, in my experience, the court has never used the qualifier “even though the defendant does not file an answer” to limit this requirement to cases in which the Defendant did not answer.  Thus I have gotten cases reopened when a pro se Plaintiff was not sent notice of a final hearing via certified mail.  I have also gotten cases reopened when a Defendant who filed an answer was not sent notice of a final hearing via certified mail.  I have even gotten a case reopened when the notice was mailed certified mail, restricted delivery and my client never signed for it.

Case law indicates that compliance with Rule 17(a), SCRFC, is sufficient notice upon mailing even if the pro se litigant does not receive the notice until after the hearing. Schleicher v. Schleicher, 310 S.C. 275, 423 S.E.2d 147 (Ct.App. 1992).  However even if the opposing party complied with the Rule 17(a) notice requirement, one can still convince the court to vacate its final order and grant a new trial if one can show that one’s client failed to appear at trial due to “mistake, inadvertence, surprise, or excusable neglect.” SCRCP 60(b)(1)

Notwithstanding Schleicher, failure of a party to have actual notice of the final hearing can be a basis to reopen the case if that failure is excusable.  For example, I recently had a case in which notice of the final hearing was mailed to my client at his “last known address” but, for reasons that were not my client’s fault, that address was inaccurate and he never received actual notice of the hearing.  We were able to convince the court to reopen that case due to my client’s “excusable neglect.”  I have seen another case get reopened because the opposing party believed he was being represented by counsel and that counsel’s health problems led her to not filing a notice of representation or formally requesting a continuance.

If a party never appeared in the case prior to a final order being issued, that party can challenge the order and seek to have it vacated on a claim that the order is void due to lack of personal or subject matter jurisdiction.  Rule 60(b)(4), SCRCP.  Unlike a motion to vacate the order due to “mistake, inadvertence, surprise, or excusable neglect,” which must be brought not more than one year after the order was entered, a motion brought under this subsection has no time limitation other than that it “shall be made within a reasonable time.”

Typically such motions to vacate the final order are brought by out-of-state defendants who ignored the court proceedings because there was not personal jurisdiction over them.  They react when the South Carolina order begins having collateral consequences–such as a bench warrant being issued within South Carolina for non-compliance or a child support obligation showing up on their credit report.  So long as they did not appear in the initial case they are entitled to seek to vacate the order due to lack of personal jurisdiction, but they must bring this motion “within a reasonable time.”

Recently, in the case of Ware v. Ware, 743 S.E.2d 817 (SC 2013), I was able to get the court to vacate the final order under the authority of Rule 60(b)(4), SCRCP, because the Alabama divorce decree had priority and thus there was no subject matter jurisdiction for South Carolina to proceed.

A client who is the victim of a bad order because he or she failed to show up for trial will typically consult with an attorney about appealing that order.  However a motion for a new trial or to vacate that order, brought pursuant to Rule 60(b), SCRCP, is generally a better method of getting the client out from the obligations of that onerous order.

I’ve previously complained that South Carolina’s handling of family court temporary hearings violate due process.  This is because allowing such hearings to proceed on affidavits alone–and affidavits that do not have to be exchanged until the temporary hearing–do not allow parties to prepare to defend the allegations or confront the witnesses against them.

The November 2012 rule change limiting parties to eight pages of such affidavits–sixteen pages if the court will allow a 30-minute hearing–further compounds this due process issue.  Meanwhile, with it taking eighteen months or more from initial temporary hearing until trial, these due process violations become even more problematic: if false or misleading information is submitted to the court at the temporary hearing, the other party is expected to live with the resulting custody order or support obligation until trial.

With crowded court dockets and a limited number of family court judges, it is probably impossible under the current system to routinely have testimony for temporary hearings.  Given the complexity of much family law litigation, it is probably unrealistic to expect cases to proceed from temporary hearing to trial in under a year.  However there is something that could be done to ameliorate the due process issues from how temporary hearings are currently conducted: authorize automatic de novo review [a review in which the temporary order has no binding effect] of custody and support orders 90-180 days after the temporary hearing, ideally with the same judge conducting the review.

I am already starting to see many family court judges do something like this with custody cases.  They will appoint a guardian, authorize discovery, and allow a de novo review after the guardian has conducted an initial investigation.  Sometimes they will even reserve jurisdiction so that they will be conducting the review hearing.

There’s much wisdom to this–especially if the same judge conducts the review hearing.  Having a second hearing after a guardian has investigated and discovery has been conducted allows the court to determine how accurate the submissions at the initial hearing were and how well the child(ren) are doing under the initial custody order.  The guardian can conduct a neutral investigation and report back to the court on his or her observations regarding important factual disputes between the parties regarding the child’s best interests.  Conducting discovery allows the parties the opportunity to confront and discredit or mitigate the evidence and witnesses against them.  Having the same judge hear both motions encourages both parties to be credible in their initial temporary hearing submissions, as they are more likely to lose credibility with the court if they must appear before the same judge to whom they previously provided inaccurate information.

My own experience with these de novo reviews is that much of the time the parties decide to forgo them voluntarily, as the guardian’s investigation and discovery reveal that the court’s initial resolution was not an unjust one.  However, when such temporary resolutions were unjust, it can be prudential to have that decision reviewed in 3 to 6 months, rather than requiring a party to endure a year or more under a custody order that unduly interferes with the parental relationship.

While onerous support orders don’t have the impact of onerous custody orders–you can always get money back but you can’t ever get time with your children back–such orders can have substantial collateral consequences.  Sometimes one party is left destitute–unable to afford an attorney or unable to sustain a subsistence lifestyle without outside financial support–by temporary support orders.  If these support orders were obtained by inaccurate financial disclosure or inaccurate factual allegations, a de novo review can remedy this injustice.  Again, there will be many situations in which the parties decide to forgo such review, but having the parties understand that such review can be had as a matter of right should increase the accuracy of submissions at the initial temporary hearing and reduce the problems of living under an overly generous or inadequate temporary support order as the case proceeds through litigation.

If South Carolina is going to conduct temporary custody and support hearings on affidavits alone, parties should have the right to one automatic de novo review of such orders.

On February 28, 2014 the South Carolina Supreme Court promulgated the use of the following new form, SCCA 430S, which can be downloaded here, for use in child support collection proceedings.

Download (PDF, 303KB)

This form is designed to provide a sworn one-page summary of the obligor’s current income, assets and monthly debts, and information regarding other biological children [the form’s failure to include adopted children is a conceptual flaw] residing in the obligor’s home.  It requires the obligor to providing supporting documentation of current income and encourages the obligor to provide corroborating documentation of monthly debts.  The likely assumption is that family court judges will use this form to determine whether the obligor’s support delinquency is truly willful and determine how much of the arrearage should be paid immediately and how rapidly the remainder can be paid.

In Turner v. Rodgers, 131 S.Ct. 2507 (2011), the United States Supreme Court found South Carolina’s methods for support enforcement violated due process.  Both before and after Turner I have publicly criticized these methods.  This new form is a small, but still insufficient, method of reducing these due process violations.

A few times a year I am contacted by a mother who wants to put her child’s biological father on the child’s birth certificate but she was married to someone else at the time of the child’s birth.  What she expects to be an easy procedure isn’t.  Family court clerks will tell her she needs a guardian for her child so she goes searching for a guardian. Actually the procedure is more complicated than that–a lot more complicated.

“In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage.” Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548, 550 (2010).  South Carolina couples regularly get divorced without mentioning in their divorce pleadings that, after the parties’ separated, wife gave birth to a child that isn’t her husband’s.  The court, unaware of this child’s existence, grants the parties a divorce.  The divorce decree remains silent about this child’s existence, but paternity remains presumptively the now-ex-husband’s.  Later, when the mother or the biological father want to address paternity, they expect it to be an easy procedure and are surprised when it isn’t.

The law deliberately makes it difficult to “delegitimize” a child.  Decades ago it was considered shameful for a married woman to bear a child that wasn’t her husband’s child: the archaic legal definition of such a child was “bastard.” The law demanded procedural clarity before it turned a child from one born of the marriage into a “bastard.”  Even though the stigma surrounding such children has greatly lessened–if not been eliminated–within the general culture, the law still demands procedural safeguards.  Thus S.C. Code § 63-17-10(E) requires:

Whenever an action threatens to make a child illegitimate, the presumed legal father and the putative natural father must be made parties respondents to the action. A child under the age of eighteen years must be represented by a guardian ad litem appointed by the court. Neither the mother nor the presumed or putative father of the child may represent him as guardian ad litem.

While the statute does not define “presumed legal father,” common law makes it clear that this term refers to the husband.  When a married woman bears a child that is not her husband’s, one must make both the husband and the biological father parties to the paternity action.  This is true even if mother and husband divorce after the child’s birth.  If the child is under the age of eighteen, an independent guardian ad litem must be appointed for the child–and someone will need to pay the guardian’s fee.  Even if all parties agree on paternity, there will need to be a hearing in which the mother, the husband, the biological father and the guardian acknowledge the biological father’s paternity.   When uncontested this is still an involved and not-inexpensive procedure.

The general culture is getting so inured to paternity being divorced from matrimony that most folks assume it is easy to establish paternity of a child when the husband isn’t the father.  However the legal culture encourages and strongly desires that child bearing and marriage remain congruent.  Thus, for the foreseeable future, making a child born of a marriage into a child born of another man will likely require formal and involved legal proceedings.

An old mentee of mine asked me if he should verify pleadings given that Rule 11(a) of the South Carolina Rules of Civil Procedure no longer require verifications.  That rule reads, “Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.”  A larger question is whether one should verify discovery responses that do not required verification, such as responses to requests to produce or requests to admit.  It’s an excellent question with no obviously correct answer.

One school of thought–the one I subscribe to–is not to verify anything that doesn’t require verification.  An attorney’s signature on a pleading, motion or discovery response “constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.” SCRCP 11(a).  Signing such a document merely means that an attorney’s investigation, which often relies primarily upon the client’s representations, has provided good ground to support the document.  Adding a client’s verification now subjects a client to greater impeachment potential, and possible perjury prosecution, if the allegations are inaccurate.  In cases of such error I would rather claim misunderstanding or inartful pleading than have my client subjected to greater impeachment potential.

One colleague, Anne Frances Bleecker, takes the opposite position.  She has her clients verify everything that can be verified.  Her reasoning is that a verified document carries greater weight with the court because the client stands behind its accuracy.  Further, in having the client go through the process of verifying the document, she insures that the client is heavily invested in that document’s accuracy.

I won’t deny there is wisdom in Ms. Bleecker’s approach so long as one understands such verification is rarely necessary (SCRCP 33(a) makes interrogatory answers the typical exception) and that the decision to require a client’s verification is a deliberate one.  Her approach probably results in greater factual accuracy in one’s pleadings, motions and discovery responses but also results in greater damage to the client when such documents are inaccurate.

I’m not sure my fellow members of the bar are aware they are doing it, but I see a whole lot of Rule 11 violations in discovery requests and objections.

Rule 11 of the South Carolina Rules of Civil Procedure reads in part:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

Rule 26(g) of the South Carolina Rules of Civil Procedure makes this provision applicable to discover requests or responses:

Signing of Discovery Requests, Responses, and Objections.  Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.  A party who is not represented by an attorney shall sign the request, response, or objection and state his address.  The signature of the attorney or party constitutes a certification in accordance with Rule 11.

The most common Rule 11 violation I see is when attorneys object to discovery that they themselves have requested.  In family court this typically occurs surrounding requests for information on fee agreements and payment, which attorneys often object to by claiming the attorney-client privilege.  I believe one waives this privilege when one seeks attorney’s fees but, even if my view isn’t correct, one cannot object to responding to this discovery based upon privilege while requesting this information oneself.  Either there is “good ground to support” the request for fee information or there isn’t.

Less common, but an even clearer violation of Rule 11, is objecting to the standard interrogatories that the Supreme Court has promulgated in SCRCP 33(b).  If the Supreme Court has approved these interrogatories for all cases, I do not see how they could be objectionable.  Still, I’ve seen attorneys object.

…and don’t even get me started on the myriad boilerplate objections some attorneys deem necessary to have at the beginning of every written discovery response.  Have these attorneys even read their objections?  Have they thought about whether there is “good ground to support” each of these objections?  Have they considered their Rule 11 certification before signing their response?  Doubtful.

Attorneys have been sanctioned for Rule 11 violations.  See e.g., Ex parte Gregory, 378 S.C. 430, 663 S.E.2d 46 (2008); Runyon v. Wright, 322 S.C. 15, 471 S.E.2d 160 (1996).  In my experience judges are much more sympathetic on motions to compel discovery when the other side has refused to respond to discovery yet that side has requested similar discovery.  I assume these attorney are not cognizant of their violations but I prefer to practice more cautiously.

On August 27, 2014 the South Carolina Supreme Court issued an administrative order superseding the May 9, 2006 order that set the 365 day benchmark to dispose of family court cases. The new order is more detailed and provides guidance to family law attorneys and litigants.

Under the new order, written requests for a final hearing need to be “delivered” to the court clerk within 365 days to prevent the case from being administratively dismissed. Previously, the clerk would send out 365 day benchmark notices when the case was more than a year old and the parties would have one month to request a final hearing or a pre-trial. Now the onus in on attorneys or pro se litigants to request the final hearing before the year elapses. In mandatory mediation counties, such as Charleston, one assumes mediation will need to occur before the request for final hearing can be submitted. Thus one needs to be thinking about setting mediation well before the year elapses.

The new order clarifies that such dismissals are without prejudice. The December 2009 version of form order SCCA 469 [the form administrative judges utilized to comply with the 365 day benchmark to administratively dismiss a case] noted this but the Supreme Court’s May 9, 2006 administrative order did not.

Under the new order, “[o]nce a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial…. If a case is continued for any reason past 365 days, the Order of Continuance must include a time and date rescheduling the case.”

The new order is explicit that “any existing orders in the affected case file which were not final will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.” The December 2009 version of form order SCCA 469 noted orders from administratively dismissed cases were unenforceable and arrearages were dismissed but the Supreme Court’s May 9, 2006 administrative order was silent on this issue. This new administrative order clarifies that final orders in such cases (typically findings of contempt from rules to show cause) remain valid.

There are a few cases in which one party would be happy for it to be dismissed under the 365 day benchmark. For the other, vast majority, of cases one should probably docket the matter to set mediation nine months after the case is filed (unless it is court ordered or already taken place) and docket the matter to request a final hearing shortly before the year elapses. This will prevent cases from being dismissed through inadvertence.

The December 3, 2014 South Carolina Supreme Court opinion in Buist v. Buist sets forth procedures to be used in setting attorney fee awards in family court cases. This opinion recognizes the difficulties of preserving fee award issues when the litigants don’t know the court’s decision on attorney’s fees until the court renders its decision.

In Buist, Husband did not object to Wife’s attorney’s fee affidavit at trial. However after the court reached its decision on attorney’s fees, Husband filed a post trial motion raising the sole issue of his inability to pay the fees awarded in the time allotted. The family court denied Husband’s motion and he appealed. On appeal to the Court of Appeals, Husband made the additional argument that the family court had not correctly applied the factors set forth in Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991)^[1] or E.D.M. v. T.A.M, 307 S.C. 471, 415 S.E.2d 812 (1992).^[2]  The Court of Appeals held these issues were unpreserved. Buist v. Buist, 399 S.C. 110, 124–25, 730 S.E.2d 879, 886 (Ct. App. 2012). The Supreme Court granted certiorari.

While affirming the family court’s award of attorney’s fees, the Supreme Court addressed the appropriate procedure to object to an award of attorneys’ fees in family court:

(1) During the trial, a party may introduce an attorneys’ fee affidavit in support of the party’s request for an award of attorneys’ fees. To object to the propriety of a fee award, the opposing party may either contemporaneously object to the affidavit or, at some point prior to the close of the final hearing, request a hearing—then or later—on the sole issue of attorneys’ fees. The family court may exercise its discretion to grant a fees-only hearing, and is not required to grant such a request.

(2) If the opposing party either objects or is granted a later hearing, the family court may receive additional testimony and evidence or evaluate the record as it then exists, applying the Glasscock or E.D.M. factors, to decide the propriety of awarding attorneys’ fees.

(3) If the opposing party fails to object or request a later hearing, the family court may exercise its discretion to determine whether the amount of the award stated in the fee affidavit (i.e., the hourly rate and number of hours billed) is reasonable absent additional testimony. However, even if the family court finds the affidavit reasonable, it must still consider whether the proponent of the affidavit is entitled to attorneys’ fees pursuant to the Glasscock or E.D.M. factors.

(4) If the party against whom fees are awarded objects to the family court’s application of the Glasscock or E.D.M. factors in the final order, the party may raise the issue in a motion to reconsider pursuant to Rule 59(e), SCRCP; however, if that party chose not to object to the fee affidavit or request a later hearing, the party’s objection to the award must only be supported by information contained in the record. In other words, the party may not introduce additional testimony regarding any of the factors after the family court issues its final order.

The Supreme Court further “reject[ed] the court of appeals’ finding that the parties must contemporaneously object to fee affidavits to preserve objections to an award of attorneys’ fees for appellate review. A failure to object to the affidavit only indicates the party’s acceptance of the affidavit as a reasonable representation of the amount of fees the opposing party owes his or her attorney, thus obviating any need for the opposing party to produce additional evidence or testimony on the matter. The family court must still apply the Glasscock or E.D.M. factors to determine whether to award a fee, as well as the amount of the fee to award.”

Buist allows a family court litigant to raise issues related to application of the appropriate fee award factors in a post-trial motion. However, to present additional evidence regarding these factors in a post-trial motion, a party must either object to the other party’s fee affidavit or request a later hearing on fee award factors prior to the close of the final hearing. Family court litigants and attorneys should familiarize themselves with these Buist factors if they intend to dispute the other party’s fee request.

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[1] Glasscock outlines factors to consider in awarding reasonable attorneys’ fees, including: “(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results  obtained; [and] (6) customary legal fees for similar services”

[2] E.D.M. outlines factors to consider in awarding reasonable attorneys’ fees, including: “(1) the party’s ability to pay his/her own attorneys’ fee; (2) beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; [and] (4) effect of the attorney’s fee on each party’s standard of living”

An August 27, 2014 South Carolina Supreme Court order requires dismissal of family court actions if they are not resolved or set for trial within 365 days of filing. A March 14, 2013 Supreme Court order made most local counties subject to mandatory mediation before family court cases will be set for a contested trial. Together, these two rules caused problems in cases in which one side–often a pro se litigant–refused to mediate. The other party would need to file, and attend, a motion to appoint a mediator. This would add unnecessary cost to the case and could delay getting mediation scheduled by a month or two. Sometimes this would be sufficient delay to have the case subject to dismissal.

An April 29, 2015 Supreme Court order authorizes an amendment to South Carolina Alternative Dispute Resolution [ADR] Rule 4(d)(2). That amendment states, “either party may request the appointment of a mediator at any time by submitting a Request for Appointment of Mediator Form to the Clerk of Court. Upon receipt of a Request for Appointment of Mediator Form, the Clerk of Court shall appoint a primary mediator and a secondary mediator…”

On May 5, 2015 the Supreme Court promulgated a new form, SCADR109, available here, to implement this rule change.  One no longer needs to file a motion to get a mediator appointed.  This should reduce delay and expense when one party refuses to mediate.