Four Ways of Reducing the Surprise Element at Family Court Hearings (September 2006)

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Material for Hot Tips Seminar in September 2006

Family court hearings have often been called “motion by ambush.” That is because family court rules allow affidavits for temporary hearings to be served at the hearing. Rule 21(c), SCRFC. Further, because temporary hearings can establish pendente lite child support, child custody, spousal support and attorney’s fees (none of which are stayed by appeal–See Rule 241(b)(6 & 9), SCACR) a poor outcome at the temporary hearing can be devastating.

With trial often a year or more away, a client who had a poor outcome at the temporary hearing must often choose between forgoing a trial on the merits in order to reach some settlement that leaves him or her better off than the temporary order or living under an onerous temporary order for a lengthy period of time. As a result, an effective litigation strategy is often to raise marginal or unprovable allegations in temporary hearing affidavits or provide extremely one-sided temporary hearing affidavits with the expectation that these witnesses will never be subjected to cross examination on their affidavits. However, there are countermeasures that can reduce the “surprise” element that results from affidavits being served at the motion hearing.

Requests to Make the Pleadings More Definite and Certain

South Carolina is a fact pleading, not a notice pleading, state. Rule 8(a), SCRCP requires that claims for relief include “a short and plain statement of the facts showing that the pleader is entitled to relief…” Compare Rule 8(a), FRCP (a claim for relief shall include “a short and plain statement of the claim showing that the pleader is entitled to relief…” (emphasis added). Often a complaint or counterclaim will raise allegations that are so vague the opposing party cannot realistically defend them.

An allegation that a party is committing adultery or physically cruel, without more detail, leaves that party trying to prove a negative. Further, trying to prepare a defense to anticipated (rather than actual) allegations can make that party appear foolish if the actual allegations are different at the temporary hearing. For example, defending an adultery claim by proving that one’s client is not involved with person A does not help if, at the temporary hearing it is alleged that the client is involved with person B. In fact, it makes the client look somewhat guilty by raising the consideration that they may be involved with person A. It is much easier to defend an adultery allegation if the allegation is specific as to the identity of the paramour and approximate time period when the adultery took place.

A motion to make a pleading more definite and certain is the method for requiring a party to provide more specificity before a response is required. Rule 12(e), SCRCP, specifically authorizes such a motion when a pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” If the motion is granted the court is authorized to fix the time period for a more definite pleading to be filed. Id. Thus one should seek to have the time period to file a more definite pleading set that provides one’s client with enough time to develop a response to the more detailed allegations.

The key to bringing this motion is to do so well before the temporary hearing and seek an expedited hearing on the matter. A motion brought pursuant to Rule 12(e), SCRCP must “point out the defects complained of and the details desired.” Thus, a client affidavit must be filed with the motion and that affidavit can be used to obtain an expedited hearing. A simple affidavit explaining the defects in the complaint, the additional desired details and further explaining how, without receiving this information prior to the temporary hearing, the client will be unable to defend the allegations is often sufficient to obtain an expedited hearing on the motion.

Seek Leave to File Post-Hearing Affidavits or Object to Affidavits that Go Beyond the Factual Allegations of the Pleadings or Motion

One simple strategy is to seek leave, at the temporary hearing, to file affidavits after the hearing. Rule 21(b), SCRFC, specifically allows this request when “good cause is shown to the court why additional evidence or testimony may be necessary.” At temporary hearings in which allegations are being raised that could not have been anticipated from the pleadings, discovery, the motion itself or other information that has been previously provided, seeking leave to file affidavits responsive to these new allegations is always a good strategy and one which, in my experience, family court judges rarely refuse.

In making such a motion, the key is to raise it orally at the hearing (though, in theory, it can be raised in a formal written motion filed after the hearing if the court has not yet issued its order), to note the unanticipated allegation(s) being made by the opposing party and to specify the relief being requested. Preparing for this argument is often an important strategy and simply requires the attorney to briefly outline the issues raised by the opposing party so it is convenient to make the argument that additional matters were raised that counsel could not have anticipated.

Further, because South Carolina is a fact pleading and not a notice pleading state, affidavits which make factual allegations outside the pleadings or motion are improper (as they raise issues beyond the basis of the motion or pleading). Thus it is appropriate to move the court to not consider factual allegations in affidavits that raise issues not plead.

Generally, the requested relief will be leave to file affidavits responding directly to the unanticipated allegation(s) within a certain number of days. However, if a party misrepresents income in their financial declaration there is nothing in Rule 21(b), SCRFC prevents requesting leave to issue a subpoena to the party’s employer requesting this information be produced. Further Rule 21(b) also authorizes the taking of testimony if circumstances arise in which testimony might be the best method of defusing surprise allegations.

If one is opposing the request to allow supplemental affidavits (or the taking of additional testimony or evidence), one should be prepared to show the court what information the opposing party had that would have allowed him or her to anticipate the allegedly surprising allegation.

File a Motion to Compel Production of Financial Declarations

In any domestic relations case in which a party’s financial condition is relevant Rule 20(b), SCRFC, requires that financial declarations be filed and served at the first hearing or within 45 days of the service of the complaint, whichever occurs first (unless the Defendant is in default, in which case the Plaintiff is relieved of this obligation until the final hearing–See Rule 20(c), SCRFC).

Because discovery is only authorized in family court upon stipulation of the parties or order of the court (Rule 25, SCRFC), one often does not obtain information on the other party’s claimed income, expenses, assets and debts until the time of the first hearing. However, when there is a significant period between the time the action is served and the time of the first hearing, the 45 day time period to file a financial declaration runs before the first hearing and one is entitled to a financial declaration before the first hearing.

In such cases, one can demand the financial declaration from the opposing party prior to the first hearing (which allows one’s client time to rebut information in the financial declaration prior to the first hearing). Rule 20(d), SCRFC, indicates that reasonable sanctions may be imposed upon an attorney or party for willful non-compliance with the financial declaration requirements. Filing a motion to compel production of a financial declaration when the 45 day period has elapsed but no financial declaration has been produced is the best method for obtaining compliance with this rule.

Demand Compliance with the General Rules Regarding Motions

Not every motion brought in family court is a temporary motion, falling under the purview of Rule 21, SCRFC. Family Court motions that do not qualify as temporary motions must comply with the rules of civil procedure, specifically Rule 6(d), SCRCP. Whereas Rule 21(a), SCRFC allows motion for temporary relief to be served not later than five business days before the hearing, Rule 6(d), SCRCP requires ten days notice of the hearing. Whereas Rule 21(a), SCRFC allows service of the supporting affidavits at the hearing, Rule 6(d), SCRCP requires supporting affidavits to be filed and served with the motion and additional or opposing affidavits to be served not later than two days before the hearing (except for motions brought pursuant to Rule 59(e), SCRCP). Whereas family court motions for temporary relief do not require a Rule 11 affirmation, many other motions do. See Rule 11(a), SCRCP. Thus the opposing party has greater procedural protections when a family court motion is not a motion for temporary relief.

Numerous motions filed in family court clearly do not qualify as motions for temporary relief, such as motions to dismiss , strike, or make more definite and certain brought under Rule 12, SCRCP; motions to modify or vacate final orders brought pursuant to Rules 52, 59 and 60, SCRCP; discovery motions, including motions to compel, quash or for a protective order brought pursuant to Rules 26, 37 or 45, SCRCP and; motions involving the modification of pleadings brought pursuant to Rule 15, SCRCP. Basically any family court motion that is of the type that could be brought under in a common pleas case should follow the guidelines on affidavits and notice set forth in Rule 6(d) or Rule 59(c), SCRCP.

Further, certain other motions that generally occur only in family court are not temporary motions. Motions seeking retroactive relief (such as retroactive alimony or child support) are not temporary motions. Motions to appoint or relieve a guardian ad litem, for drug testing, or for psychological evaluations are not temporary motions. A basic analysis is that motions that seek what the party ultimately seeks at trial but on a temporary basis (such as custody, visitation, support, attorney’s fees and restraints) are motions for temporary relief whereas motions seeking relief that cannot be modified or adjusted at trial or affect procedural and not substantive rights are not motions for temporary relief.

In defending family court motions that are not seeking substantive temporary relief related to the ultimate matter(s) at issue, it is appropriate to demand that Rule 6(d) be complied with. If the opposing party fails to file affidavits with such motions or fails to provide adequate notice of the motion, one may either file to have the motion dismissed or orally move at the motion hearing to have the relief denied for failure to comply with Rule 6(d), SCRCP. If one intends to make the motion orally at the hearing, it is best to note the objection to opposing counsel, in writing, well before the hearing–both to give the opposing party time to come into compliance with the rules of procedure governing motions in general and to indicate to the court that this oral motion is not being interposed merely for delay.

Conclusion

Until and unless South Carolina modifies Rule 21, SCRFC to provide for affidavits and financial information to be filed and served prior to temporary hearings, these four actions are the best strategies for reducing the surprise element in defending family court motions.