A colleague of mine has asked me to blog on when a Rule 11 affirmation is required for a family court motion. The requirement for such affirmations is set forth in South Carolina Rule of Civil Procedure 11(a):
All motions filed shall contain an affirmation that the movant’s counsel prior to filing the motion has communicated, orally or in writing, with opposing counsel and has attempted in good faith to resolve the matter contained in the motion, unless the movant’s counsel certifies that consultation would serve no useful purpose, or could not be timely held.
That same subsection notes when such affirmations are not required:
There is no duty of consultation on motions to dismiss, for summary judgment, for new trial, or judgment NOV, or on motions in Family Court for temporary relief pursuant to Family Court Rule 21, or in real estate foreclosure cases, or with pro se litigants.
Under South Carolina Family Court Rule 2(a) motions for judgment NOV (Rule 50, SCRCP) or summary judgment (Rule 56, SCRCP) are not allowed in family court. Further, there is no requirement of a Rule 11 affirmation in a motion to dismiss, for a new trial or when the motion is brought against a pro se litigant. There is also no requirement of a Rule 11 affirmation on motions in family court for temporary relief pursuant to Family Court Rule 21. Some attorneys treat all family court motions as coming under the purview of Family Court Rule 21 and never file motion affirmations. However not all family court motions are such motions.
Numerous motions filed in family court do not qualify as motions for temporary relief. Certain motions that generally occur only in family court are not temporary motions. Motions seeking retroactive relief (such as retroactive alimony or child support) are not temporary motions. Motions to appoint or relieve a guardian ad litem, for drug testing, or for psychological evaluations are not temporary motions. A basic analysis is that motions that seek what the party ultimately seeks at trial but on a temporary basis (such as custody, visitation, support, attorney’s fees and restraints) are motions for temporary relief whereas motions seeking relief that cannot be modified or adjusted at trial or affect procedural and not substantive rights are not motions for temporary relief.
Some other family court motions are motions that might also typically be filed in circuit court but do not require a Rule 11 affirmation, such as motions to dismiss brought pursuant to Rule 12(b), SCRCP and motions to modify or vacate final orders brought pursuant to Rules 52, 59 and 60, SCRCP. However, other motions that are common to both family court and circuit court require affirmations including: motions to make pleadings more definite and certain brought under Rule 12(e), SCRCP; motions to strike brought under Rule 12(f), SCRCP; discovery motions, including motions for a protective order, motions to compel, and motions to quash a subpoena brought pursuant to Rules 26, 37 or 45, SCRCP; and motions involving the modification of pleadings brought pursuant to Rule 15, SCRCP.
I once had a motion to compel continued for failure to include a Rule 11 affirmation. I felt the attorney complaining about the lack of a Rule 11 affirmation had sandbagged me so I warn opposing counsels who fail to include the affirmation if I note their motion is lacking the required affirmation. However, when I do not believe an attorney could make this affirmation for the motion he or she filed, and the rules required it, I believe it appropriate to make issue of the lack of affirmation when seeking or defending an attorney fee request.