Rule 21 of the South Carolina Rules of Family Court creates specialized rules for Family Court motions for temporary relief. For example, such motions may be heard on five business days notice. Rule 21(a), SCRFC. Supporting affidavits do not need to be served with such motions. Rule 21(c), SCRFC. However, SCRFC 2(a) notes that the South Carolina Rules of Civil Procedure are also applicable in family court unless explicitly excluded by Rule 2.
One provision related to motions contained within the Rules of Civil Procedure that is not modified by Rule 21, SCRFC and is not excluded by SCRFC 2 is the provision of Rule 7(b)(1), SCRCP, which states that a motion “shall state with particularity the grounds therefor.” When the motion for temporary relief references a pleading, and the pleading would explain the ground for the motion, that motion probably meets the requirement of stating the “grounds therefor.” Otherwise, many motions for temporary relief fail to meet this requirement.
Earlier this year, in Camp v. Camp, 386 S.C. 571, 575, 689 S.E.2d 634 (2010), the South Carolina Supreme Court somewhat loosened the requirement under Rule 7(b)(1), SCRCP, that motions state the grounds therefor, holding that the court could still hear such motions when there was no prejudice from the lack of particularity. The Camp court held that “when a motion is challenged for a lack of particularity, the court should ask whether any party is prejudiced by a lack of particularity or whether the court can comprehend the basis for the motion and deal with it fairly.”
Where a motion for temporary relief doesn’t state the grounds therefor, the family court can hear the motion if the lack of particularity causes the defending party no prejudice. However where the defending party can demonstrate prejudice, such motions are probably subject to dismissal as procedurally defective.
Family court motions for temporary relief typically do not contain supporting affidavits. Thus, there will routinely be prejudice to the defending party, because that party has limited ability to know what allegations he or she will be required to counter, and thus will be limited in his or her ability to fashion a complete response. Objecting to such insufficient motions may lead to dismissal. At a minimum, the defending party is probably entitled to provide post-hearing submissions to counter the prejudice a lack of specificity may have caused that party. It is noteworthy that Rule 21(b), SCRFC specifically authorizes such post-hearing submissions when “good cause” is shown.
This came up recently in one of my cases. While I see the rules and recognize the problems inherent in “trial by ambush”, I also recognize the reality that most of my family law clients know EXACTLY what the other party is complaining about. So as an every day thing, this doesn’t come up much. Maybe it should, though. I often joke that it seems that the law has no place in Family Court! As you know, jokes are only funny because they are at least partially true.
MJ can identify with my wife Lucy who states that the reasons she does not practice in family court is because “there are no rules and the cases never end.”
Despite the careless languagae of Rule 21(a), SCRFC, I do not believe that a motion for temporary relief is necessary if the complaint alleges grounds for temporary relief and the prayer of the complaint specifically seeks temporary relief. An additional motion clutters the record with no benefit to either party or the court. Most of the judges before whom I regularly appear understand this simple concept; however, I finally strated including a motion for temporary relief with the summons and complaint, family court cover sheet, and notice of hearing that are required. Also, I would love to know the purpose for requring that the family court cover sheet be served with the summons and complaint. Sometimes I think South Carolina Court Administration has its entire budget invested in paper mill stock.
Tom:
The blog notes that when the motion is attached to the pleading, the pleading probably states the ground therefor sufficiently to provide notice. However subsequent motions for temporary relief, especially ones that lack affidavits or pleadings, do not provide the grounds therefor sufficiently for one to prepare an adequate response. That’s the basis of my complaint.