In the July 20, 2011 decision in Ross v. Ross, 394 S.C. 261, 715 S.E.2d 359 (Ct. App. 2011), the Court of Appeals remanded the issue of whether the Wife’s petition for alimony could defeat a claim of untimeliness due to her Husband’s alleged pattern of violence and threats of violence towards her. The Court of Appeals found that “equitable tolling” principles could be applied to allow Wife’s claim to proceed despite her having filed her alimony claim outside the court-imposed deadline.
In Ross, Husband obtained a divorce on March 4, 2005, on the statutory ground of habitual drug use by Wife. In the divorce decree, the family court gave Wife thirty days to initiate a claim for alimony. On July 20, 2007, Wife filed a complaint seeking “a reasonable amount of permanent periodic alimony.” The family court bifurcated Wife’s request for alimony and ordered a hearing on whether Husband threatened or coerced Wife to prevent her from filing the action for alimony.
The family court found Husband “prevent[ed] [Wife] from exercising her right to seek alimony under the previous court order by the use of physical violence and threats.” However, the family court also found Wife “later did not seek alimony because she could not afford an attorney.” The family court concluded, “”While the facts of this case may have at one time supported the rare application of equitable tolling, the delay of two and a half years in seeking alimony is unreasonable and does not reflect that [Wife] exercised the requisite diligence in this matter.” Wife appealed.
The majority opinion reversed and remanded:
The family court found Wife established Husband prevented her from bringing the alimony action by the use of physical violence and threats. However, the court found that at some point, the reason Wife failed to bring the action was because she could not afford an attorney rather than her fear of Husband. Although Wife testified several times she was unable to afford an attorney, these statements were continuously coupled with testimony she was still afraid of Husband. The evidence indicates Wife was threatened and abused throughout the marriage, and the threats and abuse continued until at least April, 2007. The record does not support a finding that at some point the threats and abuse stopped and only Wife’s inability to hire counsel prevented her from bringing the action. Accordingly, we find the family court erred in denying Wife’s claim for alimony. We therefore remand the case to the family court to determine whether Wife is entitled to pursue her claim for alimony.
Given the Court of Appeals’ reversal, it is unclear why the remand was to determine whether Wife’s claim was still time barred instead of just determining whether and how much alimony to award her.
Judge Pieper’s concurrence would have applied a standard under Rule 6(b), SCRCP, to determine whether Wife’s claim was time barred. Rule 6(b), SCRCP, permits the enlargement of time within the court’s discretion “upon motion made after the expiration of the specified period, for good cause shown, to permit the act to be done.” Judge Pieper’s opinion held this standard was less strict than equitable tolling and was the proper standard to be applied.