Motions brought pursuant to Rule 59, SCRCP (titled “New Trials: Amendment of Judgments”) and Rule 60, SCRCP (titled “Relief from Judgment or Order”) are both commonly thought of as post-trial motions. However, from the perspective of a South Carolina family law attorney, there are four important distinctions between these two rules of procedure.
The first distinction is when they can be filed. A Rule 59 motion “shall be made not later than 10 days after the receipt of written notice of the entry of judgment or of the filing of an order disposing of the action, if no judgment has been entered.” A motion brought pursuant to Rule 60(b)(1-3) “shall be made within a reasonable time, and … not more than one year after the judgment, order or proceeding was entered or taken.” A motion brought pursuant to Rule 60(a) can be made at any time and a 60(b)(4-5) motion must merely “be made within a reasonable time.”
The second distinction is what issues can be raised in each motion. In an action tried without a jury (which is all family court cases), Rule 59 motion can seek modification “for any of the reasons for which rehearings have heretofore been granted in the courts of the State.” Basically, any allegation of error on an issue that was raised at trial, or that could not have been raised at trial, is a basis for a Rule 59 motion.
In contrast, Rule 60 motions can be brought only on narrow and specific grounds. Rule 60(a) motions address clerical mistakes. Rule 60(b)(1-3) motions must allege (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud[1], misrepresentation, or other misconduct of an adverse party. Rule 60(b)(4-5) motions must allege (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” If one doesn’t meet one of these criteria, one cannot bring a Rule 60 motion.
A third distinction is what orders can be modified by bringing these motions. Rule 59 speaks of “judgment or of the filing of an order disposing of the action, if no judgment has been entered,” while Rule 60(a) speaks of “judgments, orders or other parts of the record and errors therein arising from oversight or omission” and Rule 60(b) speaks of “final judgment, order, or proceeding.” Essentially, Rule 59 applies to final orders while Rule 60 applies to any order.
In family court this is an important distinction. Essentially, the family court will not allow Rule 59 motions for anything other than final orders or orders dismissing part of a claim or defense. Since Rule 60 motions cannot be based upon mere allegation of error, this inability to bring a Rule 59 motion for temporary or procedural orders hinders a litigant’s ability to address errors in temporary orders.[2]
The final way these two rules differ is that a timely Rule 59 motion tolls the time to file a notice of appeal. See Rule 59(f), SCRCP. A Rule 60 motion does not.
Essentially Rule 59 is a more powerful tool than Rule 60. However, Rule 59 is more time limited than Rule 60. Moreover, a Rule 60 motion can be brought to address any family court order while a Rule 59 motion can only address a small subset of orders. One should never bring a Rule 60(b) motion when one could bring a Rule 59 motion. Yet, when one cannot bring a Rule 59 motion, a Rule 60(b) motion can remedy some injustices.
[1] In South Carolina, extrinsic fraud is the only type of fraud for which relief may be granted under Rule 60(b)(3), SCRCP. Extrinsic fraud is fraud that induces a person not to present a case or deprives a person of the opportunity to be heard. Relief is granted for extrinsic fraud on the theory that because the fraud prevented a party from fully exhibiting and trying his case, there has never been a real contest before the court on the subject matter of the action. On the other hand, intrinsic fraud is fraud which was presented and considered at trial. It is fraud which misleads and induces the court to find in favor of the party perpetrating the fraud.
The court grants relief for extrinsic but not intrinsic fraud on the theory that intrinsic deceptions should be discovered during the litigation itself, and to permit such relief would undermine the stability of all judgments. The essential distinction between intrinsic and extrinsic fraud for purposes of relief from judgment is the ability to discover the fraud. Gainey v. Gainey, 382 S.C. 414, 675 S.E.2d 792, 798 (Ct.App. 2009).
[2] Thornton v. Thornton, 328 S.C. 96, 114, 492 S.E.2d 86, 96 (1997) held that each individual child support or alimony installment constitutes a “judgment.” Thus, it would appear temporary orders setting child support or alimony create judgments and a Rule 59 motion would be proper to address those issues. I have never successfully made that argument to a family court judge.
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