Are there other family law attorneys out there who file supplemental pleadings? In my sixteen plus years of family court practice, I can’t recall any. Instead, they always appear to file amended pleadings. I think there’s a difference between an amended pleading and a supplemental pleading. Given the right circumstances, one could make an issue of an opposing party filing an amended pleading when they really meant to file a supplemental pleading.
Rule 15 of the South Carolina Rules of Civil Procedure discusses both amended pleadings and supplemental pleadings. Rule 15(c), SCRCP states:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.
In contrast, Rule 15(d), SCRCP authorizes:
a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented…
That is, an amended pleading adds or deletes items from the original pleading but relates back to the date of the original pleading. In contrast, a supplemental pleading covers new items occurring since the initial pleading and dates forward to the date of the supplemental pleading.
So why is this distinction relevant? Two reasons. First, take the example of a revised pleading seeking a divorce on the ground of one year’s continuous separation because enough time has now elapsed that the parties have been separated for a year while they had not been separated for a year at the time the initial pleading was filed. File this request as an “amended” pleading and the claim relates back to the date of the initial filing. The parties hadn’t been separated a year at the time of the initial filing so, in theory, the pleading fails and the other party could seek to hold up the divorce. File this request as a supplemental pleading and the claim relates back to the date of the supplemental pleading, at which time the parties had been separated a year.
A more important example is a modification case. In modification cases the change of circumstances should occur prior to the date of filing for it to be a basis to modify the order. See e.g., Moss v. Moss, 274 S.C. 120, 262 S.E.2d 11, 12 (1980) (“The change of conditions necessary to transfer custody must normally occur before the date of the petition requesting custody”). Take the example of a party who, during the course of a custody modification case, wants to assert a newly developed and additional change of circumstance to justify the change of custody. Assert that new issue in an amended complaint and the new change of circumstance relates back to the original date of filing. Thus, it did not occur prior to the filing. Assert that new issue in a supplemental complaint and the new change of circumstance meets the Moss requirement of predating the filed pleading.
While picayune, the distinction between amended and supplemental pleadings is meaningful.