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.