Upchurch v. Upchurch

Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006), is a published January 2006 opinion from the South Carolina Supreme Court.  It reversed a published May 2004 opinion from the South Carolina Court of Appeals Upchurch v. Upchurch, 359 S.C. 254, 597 S.E.2d 819 (Ct. App. 2004)

I was retained to represent Ms. Upchurch after a family court had ordered her to pay child support in an action brought by her ex-husband less than a year after she and her ex-husband had reached a court-approved agreement that she would not have to pay child support unless there was a showing of dramatically changed financial situation.  She alleged that there was no such showing and that the family court had erred in requiring her to pay child support.

Her trial counsel did not appeal when he received a signed but unfiled copy of the family court’s decision.  After receiving a filed copy of the family court order we filed a timely appeal.

The Court of Appeals dismissed Ms. Upchurch’s appeal, finding that receipt of the signed but unfiled order was sufficient to give her “written notice of entry of the order” and that her time to appeal had lapsed before she filed her appeal.  The Supreme Court reversed this ruling, finding that an order needed to be filed to become final and fix the rights of the parties and thus her time to appeal did not begin to run until she received the filed order.

The Supreme Court further found that the family court erred in requiring Ms. Upchurch to pay child support because her previous agreement was not an agreement to hold child support in abeyance but an agreement to actually have no child support obligation.  Thus her ex-husband needed to show changed circumstances in order to modify such an agreement.  The Supreme Court determined that he had failed to make such a showing.

Upchurch established two very important legal principles.  The first is that a judge’s ruling does not become an official order until it is actually filed with the court.  The second is that child support can be set despite a prior court-approved child support agreements that holds child support in abeyance without a showing of changed circumstances; however, when child support is actually set at $0.00 in a court-approved child support agreement, the party seeking child support must show changed circumstances to get child support modified.