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Failing to answer a family court complaint can be malpractice

Recently I was an expert witness [for the first time in my career] in a legal malpractice case.  I was asked to provide an opinion about the standard of care for a family court attorney who had failed to file an answer and counterclaim.  This led to his client being precluded from seeking relief she wanted at trial, as a result of which she negotiated an unbeneficial resolution of her custody/relocation case.  Her malpractice claim settled in mediation.  It was an expensive lesson for her family court attorney.

Some South Carolina family law attorneys feel there is little consequence for failing to file an answer and counterclaim.  They note SCRFC 17(a), which reads, “The defendant [who has failed to file an answer] may be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees.”  They might even be aware of Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct. App. 2011), in which the Court of Appeals remanded the issue of alimony back to the family court despite the Defendant’s failure to file an answer.  From this they glean that filing an answer and counterclaim isn’t necessary.  They’re wrong.

The Defendant/attorney in the malpractice case had, in my opinion, made three mistakes that are common among family law attorneys but easy to avoid.  The first mistake was failing to obtain the family court file from the court when his client retained him.  Had he done so he would have noted that no answer had been filed.  Too often attorneys rely on what their clients bring to them to determine the status of a family court action.  That’s a mistake.  Often litigants don’t have a complete file or will have unfiled copies of documents that may–or may not–have been filed in the family court.

Just last week I was retained by a Plaintiff who brought me a file that did not contain an affidavit of service but did contain an unfiled financial declaration.  A review of the online docket indicated that no affidavit of service or financial declarations had been filed for a case that was about a year old.  These are problems.  A bit of checking revealed that the Defendant had been served but that the affidavit of service had never been filed with the court.  Had we proceeded to a final hearing without an affidavit of service in the court file, the court may have continued the hearing.  Without her filed financial declaration in the court file, it would be hard for me to complain to the pro se Defendant that he hadn’t filed his financial declaration.

When taking over in a case that has already been filed with the family court, one should always obtain a copy of the file directly from the family court.  In Charleston County, where my office is located, an emailed request to the clerk will result in her emailing you adobe PDF files of every document that’s been filed in the case.  Without these documents, one cannot properly understand the factual issues in the case, the past representations made by the parties and their witnesses in court, the procedural status of the case, and what orders the client is expected to follow.

Defendant/attorney’s second mistake was not taking note when Plaintiff’s attorney filed a Motion for Default Judgment [one should similarly take note when a Plaintiff’s attorney files or has filed an affidavit of default].  Receipt of this motion or an affidavit of default is a warning that Plaintiff’s attorney intends to preclude the Defendant from seeking affirmative relief at trial.  At that point, Defendant’s counsel must file a motion for leave to file an untimely answer and counterclaim.

Pursuant to Rule 55(c), SCRCP in order to file an untimely answer and counterclaim after the entry of a default order one must demonstrate “good cause shown.”  The standard is even lower when no default order has been filed–and in family court default orders are not issued until the final hearing.  See Rule 17(b), SCRFC (“In domestic relations matters, the provisions of Rule 55, SCRCP, regarding orders of default shall be made in the final order issued by the family court.”).  In practice, I have yet to see the family court deny a Defendant the right to file an untimely answer and counterclaim if the case has not been set for trial.  Had this attorney sought leave to file an untimely answer and counterclaim he could have avoided a malpractice claim.

Defendant/attorney’s third mistake was not seeking leave to file an answer and counterclaim during trial.  In this case his client wanted “permission” to relocate with the children out of state.  Pursuant to the temporary order, and with the Plaintiff’s consent, she had moved with the children out of state.  The guardian had conducted a home study of her new residence and the guardian’s report addressed the relocation issue.  Given such facts, Plaintiff could hardly claim prejudice in the Defendant filing a formal counterclaim to seek relief that had been litigated.

Rule 15 (a & b), SCRCP would have seemed to give his client ample grounds for such a pleading.  Rule 15(a) allows “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party.”  Rule 15(b) covers the amendment of pleadings during or after trial and allows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

The key word in both of these subsections is “prejudice.”  When issues have been litigated but not plead it would almost be impossible to show prejudice from an untimely pleading.  Here the Defendant and the children had been living out of state for some time prior to trial and Plaintiff was obviously aware of Defendant’s desire to have her and the children remain there.  However one has to know the rules of civil procedure to make this argument and to seek leave for such a late answer and counterclaim.

The mistakes I saw this Defendant/attorney make are common but also beneath the standard of care.  As his experience shows, failing to avoid them can be costly.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Stephanie W

    Greg,
    I came across your blog while searching for an answer to the following conundrum: we had a temp hearing before the Answer was due. The defendant is represented by competent counsel. The answer is now 12 days past-due. My client wants me to seek default and in terms of strategy, it is in the best interest of the case to do so. In terms of practice/reputation/civility, I agree that it is loathsome to put a represented party in default, especially when an extension could be given or they will be able to file anyway since there is no trial date. While it may be malpractice to miss the deadline to file an answer (and then to miss the chance to fix it), is it not also egregious to fail to seek default on behalf of the client?

  • marrion baker

    Dear Sir or Madam,

    I am writing this letter with a broken heart and broken spirit. My name is Marrion Baker. I was born in Jamaica and lived there until the age of twenty two. In 1999 I met my ex-husband Thomas Baker in Panama where I was there studying Spanish. I married my ex-husband in August 1999 and again December 19999 in my country Jamaica. I came to America after my marriage and I was excited and proud to be a part of a country where everyone had equal rights regardless of the color of your skin or the content of your character. I was proud to be given the chance to live the American Dream.

    I took full advantage of the opportunity to live the American Dream. Back in my country I learned to sew and did so for the people in my village. Once here in America I started to sew draperies in the garage of our home. Business was so good that we decided to lease a place and it was called and continue to be called “Beautiful Windows.” Life was good.

    To the union two children were born. Michael 12 years and Matthew 10 years old. My children have always been and will always be an essential part of my being. As a mother I take pride in knowing that they are happy and that all their needs are met. I take pride in preparing home cooked meals for them and listening to their stories about their day at school or whatever it is the have on their minds.

    After a few years of marriage things started to unravel and the marriage took a turn for the worse. Even with things happening, I still held onto hope that we could work things out for the sake of the children. However, that hope ended in 2012 when my Husband at the time filed for a divorce. My Husband was ordered to leave the marital home but he was to continue paying all household expenses and I was responsible for the business and its expenses.

    Over the past 1 2 1/2 years I have been the custodial parent for my children. My ex-husband would see the children for 2 hours in the evening and every other weekend. I was always the go-to parent and the one my kids would rely on 99.9% of the time.

    During the course of the legal separation the kids were appointed a guardian ad litem, Mrs. Free. Mrs. Free have visited with the children two times over a three years. Mrs. Free and I on the other did not have a cordial relationship. It was friction from the beginning. To me it seemed as if she sided with my Husband. I couldn’t do anything right and was subpoenaed back into the court several times for trivial issues.

    What brings me to writing this letter to you is that on March 12, 2012 I was informed by my attorney that full custody of my children was granted to my ex-husband, I was in shock and still continue to be so. My children were ripped away from me for being a good Mother. It was established n court that I am a good mother.

    I have read through this order numerous time and I don’t understand why my children were taken away. I truly feel that I’m the picture of injustice and I feel that injustice anywhere is injustice everywhere. My husband paid $84000.00 dollar in legal fees for the divorce. I paid $3000.00 dollar. I feel that because I didn’t have the financial means, my place of origin, inadequate legal representation, and discrimination from the Guardian de litem I lost my children. However, I refuse to give up.

    I am asking for your help and support into looking into this matter for me. I shouldn’t be punished because I don’t have the financial mean, for being a good mother, for putting the down payment an a house so I can have home for my children. It was my desired to give my children stability. My children are suffering emotionally and mentally and it’s irreversible. This is not fair. The court order is inconsistent. The issues in the order are trivial, and not acceptable reason for my children to be taken away from me. Most issues was not tried in court. I have seek legal advice in appealing the order but it cost $25000.00 to do so. I am leave with the impression that there is no justice and the legal system is all about money. That if you are poor, from another country, or of certain skin color then you have no right. I will continue to fight until my voice is heard.

    I greatly appreciate any assistance that you can provide. I will make myself available at any time should you have questions or need any additional information. Again thank you and I look forward to speaking with you soon.

    Respectfully Submitted
    Marrion

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