Early in my family court career I used to debate with my colleagues as to when a family judge’s ruling became valid. The (super-)majority view was that these rulings became valid when the judge issued his or her ruling (whether orally or in a memo form). Some felt the “order” became valid when the judge signed it. Few agreed with my belief that the order didn’t become valid until it was actually signed by a judge and filed with the clerk’s office.
As South Carolina Rule of Civil Procedure 58(a) notes, “A judgment is effective only when so set forth and entered in the record.” In 2006 I actually went to the South Carolina Supreme Court on that issue, which resulting in an opinion that an order wasn’t valid until it was signed by the judge and filed with the clerk’s office. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006). Yet, seven and a half years later, many of my colleagues, and even some judges, continue to believe that whatever comes out of a judge’s mouth or memo ruling is a valid court order.
The issue isn’t merely academic. When judges issue their oral or memo rulings they expect the parties to comply with it. However oral rulings are subject to misinterpretation, as the children’s game “telephone” demonstrates. Even written rulings are subject to revision by the judge. See McComb v. Conard, 394 S.C. 416, 426, 715 S.E.2d 662, 667 (Ct. App. 2011) (stating “[u]ntil written and entered, the trial judge retains discretion to change his mind and amend his . . . ruling”) (citation omitted). Without a signed order it impossible for an attorney to advise a client exactly what his or her legal rights and obligations are.
Even a signed but unfiled order is still unenforceable. That is because the order does not become valid until it is actually filed with the clerk’s office. “An order is not final until it is entered by the clerk of court; and until the order or judgment is entered by the clerk of the court, the judge retains control of the case.” Bowman v. Richland Mem’l Hosp., 335 S.C. 88, 91, 515 S.E.2d 259, 260 (Ct.App.1999) (citation omitted).
Requiring an order to be filed before it can be enforced is also important because it preserves the right of appellate review. One has the right to seek supersedeas of a judge’s order but the Court of Appeals will not consider supersedeas until the order is filed. That a signed but unfiled order cannot be reviewed for error is one reason the law does not treat such orders as binding.
In situations in which a judge wants immediately compliance with a portion of his or her ruling the best option is to ask the judge to execute a simple bench order and to file that order with the clerk’s office immediately–with the understanding that a more detailed order will follow. Further, because judges’ rulings don’t become orders until filed with the court, best practice is to draft proposed orders as soon as the judge issues his or her ruling and make sure there is minimal delay between the order being signed by the judge and the order being filed with the clerk’s office.
Anything a family court judge wants done immediately merits the effort of obtaining a filed order.