Recent Charleston School of Law graduate Asher Watson has asked me questions about recently enacted (effective June 26, 2012) South Carolina House Bill 3400, which modifies S.C. Code § 63-3-530(A)(17), a subsection of the family court code that explains when child support terminates. That code section previously read that “The family court has exclusive jurisdiction:”
To make all orders for support run until further order of the court, except that orders for child support run until the child turns eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first, or past the age of eighteen years if the child is enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen when there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.
House Bill 3400 adds the following language to the end of this subsection:
When child support is terminated due to the child turning eighteen years of age, graduating from high school, or reaching the end of the school year when the child is nineteen, no arrearage may be incurred as to that child after the date of the child’s eighteenth birthday, the date of the child’s graduation from high school, or the last day of the school year when the child is nineteen, whichever date terminated the child support obligation.
This bill even includes a savings clause, as though the legislature was concerned some provision of this new language might be unconstitutional:
Savings clause SECTION 2: The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
Speculation abounds as to what this new language adds to issues regarding child support termination and post-majority child support. Evidently some are concerned that this bill negates the holding of McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012) and prevents the family courts from awarding college support. I don’t read this bill in that manner. If the legislature intended to withdraw the ability to award college support, this language is a pretty oblique way of doing so.
One issue that House Bill 3400 clearly addresses is the prohibition against child support arrears continuing to accrue once child support terminates under operation of law. In almost nineteen years of practice I have yet to encounter a case in which someone claimed that arrears continued to accrue once child support was supposed to terminate, nor have I heard of anyone else having this issue arise. Did our legislature really intend to address a phantom menace?
I see some potential for mischief in this new law. When one child emancipates but another child is (or other children are) still supported under the child support order, the law does not automatically adjust child support. Instead the supporting parent needs to file a new action to have child support adjusted to reflect that fewer children are entitled to support. Until support is adjusted, does House Bill 3400 make some of this support “arrears” that cannot be incurred? If so, how does the court determine what amount is arrears and what amount is support for the unemancipated child(ren)?
So, dear readers, I look to you for advice: What does House Bill 3400 actually mean?