The following is the outline for a presentation Elizabeth Stringer, Karen Fine, and I presented at the Charleston School of Law on January 12, 2018. Links to word drafts of the materials follow.
Substantive relief one is seeking at the conclusion of a case that is sought prior to trial
Can be brought once automatically prior to trial
Can be brought to seek relief that wasn’t previously sought
Can only be sought a second time to modify prior temporary order if there is pendent lite substantial change of circumstances Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735, 739 (Ct.App. 1998)
Burden of proof
Preponderance of the evidence for initial case
Substantial change of circumstances for modification cases and subsequent temporary motion
When to seek temporary relief?
Is the status quo acceptable?
Would discovery strengthen one’s ability to obtain temporary relief
Temporary relief, 5 business day’s notice; procedural relief 10 days notice
Temporary relief, serve affidavits at hearing; procedural relief, serve supporting affidavits with motion; serve defending affidavits two days prior to hearing
Drafting initial motion
What relief is being sought
What factual and legal arguments will lead the court to grant that relief
Using financial experts in temporary hearing preparation
Defending temporary hearings
Return?
Rules don’t require it
Possibly needed if seeking attorney’s fees
Not proper vehicle to see relief that is not part of the opposing party’s motion for temporary relief
Cross-motion
If seeking affirmative relief not sought by opposing party’s motion, best practice is to file cross-motion
Permission from clerk or chief administrative judge on docketing scheduling
Final preparation
Final preparation of financial declaration
List other side’s assets and debts even if one cannot yet value them
Check for accuracy and plausibility
Be prepared to explain accurate but implausible information in client’s affidavit
Attach supporting documentation to client’s affidavit or financial declaration if you believe accuracy will be disputed
Witness affidavits
Are they based upon personal knowledge
Hearsay
Can always include what the other side says
Should try to limit repeating what one’s own client says
Statements of the children
If not offered for truth of matter asserted, not hearsay
Hearsay exceptions
Can be included even if not admissible
Can be objected to if not admissible and other party catches it
Can later damage that witnesses credibility if not accurate
Are they useful
Too opinionated
Too one sided
Remember the client and the witness may both be impeached at trial on the information contained in the affidavits that party submits at the temporary hearing
Rule 801(d)(2)(B), SCRE, “a statement of which the party has manifested an adoption or belief in its truth”
Relief may be “won” at the temporary hearing based on inaccurate affidavits but render the case basically untryable by the victor
Client’s affidavit
Should be revised repeatedly as one learns more
Should harmonize with other witness affidavits being presented
Show, don’t tell, whenever possible with exhibits
Cover disputed issues and relief sought in the motion
Don’t need histories unless relevant
Too much information is merely impeachment material for trial