The March 12, 2025, Supreme Court opinion in Swing v. Swing reinstated an appeal that the Court of Appeals had dismissed as untimely.
The Swings were divorced as part of a June 8, 2021, Final Order. Wife filed a timely motion to alter or amend, pursuant to Rule 59(e), SCRCP. On August 27, 2021, the family court issued one order granting Wife partial relief and an amended final order incorporating those changes to the original final order.
On September 10, Husband then filed his own Rule 59(e) motion, requesting alterations to the August 27 order. Wife later filed a return arguing Husband’s motion was untimely because his motion did not seek to alter anything that had been altered by the August 27 orders. The family court agreed and dismissed Husband’s motion in a July 14, 2022 order.
Thirty-one days after Wife received written notice of the July 14 order, Wife filed a notice of appeal of the June 8 and August 27 orders (the notice was timely because the 30th day was a Sunday). Husband filed a motion with the Court of Appeals asking to dismiss Wife’s appeal as untimely, arguing that, because his Rule 59(e) motion was untimely, it did not stay Wife’s time to appeal. The Court of Appeals agreed and dismissed Wife’s appeal. The Supreme Court granted certiorari on the issue of whether Wife’s appeal was timely.
The Supreme Court held Wife’s appeal was timely and remanded the matter back to the Court of Appeals. Normally Justice Few is an extremely lucid writer. I have attempted to decipher the opinion, as have a few colleagues I respect. While we understand the holding, the rationale isn’t 100% clear to us.
Swing uses the word “exceptions” eleven times and cites four cases addressing the general rule that a timely Rule 59(e) motion stays the time to appeal. Those four cases are: Coward Hund Construction Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct. App. 1999); Quality Trailer Products, Inc. v. CSL Equipment Co., 349 S.C. 216, 562 S.E.2d 615 (2002); Collins Music Co. v. IGT, 353 S.C. 559, 579 S.E.2d 524 (Ct. App. 2002); and Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004). The opinion discusses two exceptions and notes:
we do not foreclose the possibility that another scenario may arise justifying a third exception, we note that twenty-one years have elapsed since Elam and no such scenario has yet arisen, and—as we are about to explain—this case certainly does not present that third exception.
Reading those four opinions, it appears that the exceptions Swing refers to are exceptions to the general rule that a timely Rule 59(e) motion stays the time to appeal. Further, from reading those four cases, it appears that one exception is a successive Rule 59(e) motion that does not raise any issues not already raised in the prior Rule 59(e) motion does not stay the time to appeal. The other exception, cited in Coward Hund, appears to be that when the subsequent Rule 59(e) motion does not challenge anything that was altered by the ruling on the first Rule 59(e) motion, it does not stay the time to appeal. Frankly, I am not 100% sure that this is the second exception.
There were four reasons the Supreme Court did not create an additional exception. First, the Rule 59(e) motions in Swing addressed issues of equitable distribution and support. The Supreme Court noted that, in contrast to the typical circuit court case, when the family court alters its decision on one issue it may impact other issues that were not raised in the initial Rule 59(e) motion:
the simple fact one issue was not mentioned in an order granting a Rule 59(e) motion does not automatically foreclose a party from then properly raising the question of how the change that was made affects the other issue that was not mentioned. As Kenneth’s counsel aptly described this point at oral argument, “when a family court amends an order, it’s much like an amoeba, if you touch one part of it, another part of it moves.”
Second, Wife was not the party who filed the allegedly procedurally improper Rule 59(e) motion. In every previous case in which the appellate courts found a Rule 59(e) motion to be procedurally improper, and thus did not stay the deadline for appeal, the party filing the appeal was also the party who filed the procedurally improper Rule 59(e) motion.
Third, Husband’s September 10 motion was his first Rule 59(e) motion. The Supreme Court noted, “a party usually is free to file an initial Rule 59(e) motion without unnecessary concern the motion will result in a subsequent appeal being dismissed.”
Fourth, Husband’s September 10 Rule 59(e) motion was not in any sense “identical” to Wife’s previous motion. In every prior case in which this Court or the court of appeals found a Rule 59(e) motion did not stay the time for appeal, the second motion was essentially identical to the first motion:
it was not at all clear to anyone—not Kenneth, not the family court, certainly not Jill—until many months later that Kenneth’s September 10 motion actually did not address any issues related to the August 27 Amended Final Order. Kenneth’s motion put Jill and her counsel in an extraordinarily difficult position. As the court of appeals decided this question, Jill’s counsel had to decide within a very short window of time whether to file an appeal, despite Kenneth’s timely Rule 59(e) motion, or wait until the family court determined whether the motion was procedurally proper, and thus risk her appeal being dismissed. To use the Court’s words from Elam: “civil procedure and appellate rules should not be interpreted to create a trap for the unwary lawyer.”
Because the Supreme Court found Wife’s appeal was timely, it remanded the matter back to the Court of Appeals for consideration of Wife’s appeal. Swing’s essential holding is that a timely Rule 59(e) motion stays the time to appeal. However, there remain exceptions to this general rule. Swing reaffirms that it is not appropriate to simultaneously file a notice of appeal and a Rule 59(e) motion.
Swing is my third Supreme Court case (one unpublished) reinstating an appeal the Court of Appeals had dismissed as untimely. Weird.
