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Supreme Court holds that family court temporary order is never automatically stayed by appeal

In the November 21, 2012 opinion of Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012) the South Carolina Supreme Court clarifies the effect of filing a notice of appeal on the enforcement of temporary orders.  Here the family court issued a temporary order requiring Husband to vacate the marital home.  Husband refused to do so and Wife then filed a rule to show cause over Husband’s refusal.  Husband then filed a notice of appeal of the temporary order.

At the contempt hearing, Husband argued the filing of the notice of appeal stayed the temporary order and thus divested the family court of jurisdiction to proceed with the contempt hearing.  The family court judge summarily rejected Husband’s argument.  Husband was held in contempt and sanctioned.  Husband then appealed the contempt order and withdrew his appeal of the temporary order.

The Supreme Court affirmed the finding of contempt against Husband and found that a “notice of appeal from a temporary order does not, standing alone, operate to stay the effect or enforcement of the order.”  The Court noted that Husband’s remedy was to file a petition for supersedeas but that such a petition:

[W]ould [not] have been justified here.  The award of temporary possession of the marital residence, while clearly important to the parties, neither constitutes a “substantial right” within the meaning of section [S.C. Code §] 14-3-330(2) nor generally raises an issue warranting immediate appellate court intervention.

Justice Pleicones dissented and I believe his dissent is essentially correct.  He noted that S.C. Code “§ 14-3-330(4) permits the immediate appeal of a temporary injunction issued by the court of common pleas in a law case and I would analogize the grant or denial of temporary relief in a domestic action to such an injunction, and hold it is immediately appealable.”   He further noted that “[e]xceptions to the automatic stay rule are found in [SCACR], Rule 241(b), in statutes, court rules, and case law” and highlighted examples of issues family court issues such as support, custody and temporary attorney’s fees that fall within this rule’s exceptions.

From this analysis he concluded:

In order to determine whether appellant’s appeal of the temporary order awarding respondent exclusive possession of the marital home and requiring appellant to vacate acted as a stay, it is necessary to determine the nature of that order.  If it was in the nature of support, then appellant’s appeal did not act to automatically stay the requirement that he leave the home.  If, however, that order was in the nature of equitable division, then the appeal acted as an automatic stay.

As I read the family court’s order of November 24, 2010, it is unclear whether respondent was awarded possession of the home as a component of support or as temporary equitable division. Thus, it is unclear whether appellant’s appeal of that order acted as a stay of the requirement that respondent receive exclusive possession of the marital home pendente lite. It is well settled that an individual may not be held in contempt for failing to comply with an ambiguous order.

Citations omitted.

While the Terry majority further limits a family court litigant’s remedies to appeal a temporary order, it appears Pleicones would have granted even greater appeal remedies from such orders:

[I]t cannot be denied that, for example, final custody determinations can be influenced by the status quo during the litigation, especially if that process is lengthy.  Thus, allowing an immediate appeal and supersedeas in appropriate custody cases can result in fairness to both parties at the final hearing.

If family court temporary hearings comport with due process, they do so only minimally.  One rarely gets to review or respond to the opposing party’s affidavits prior to the court’s determination and one almost never has the opportunity to cross examine the opposing party’s witnesses.  Yet Terry makes no family court temporary order subject to the automatic stay upon appeal and creates additional hurdles to having such orders reviewed by the appellate court.

Finally, the Terry majority notes more clearly than in any reported opinion that one can (and probably must) seek remedies from erroneous temporary orders at the final hearing:

Perceived errors in family court temporary orders are to be redressed as they always have, at the final hearing. For issue preservation purposes, any such challenge must be placed on the record at the commencement of the final hearing.  The family court has wide discretion in fashioning equitable relief, including the authority to make adjustments in the equitable distribution and otherwise to remedy an error in the temporary order.  If a party desires to challenge the family court’s final resolution of the matter, the aggrieved party may appeal from final judgment.

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