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Supreme Court changes Family Court 365 day benchmark administrative order

On August 27, 2014 the South Carolina Supreme Court issued an administrative order superseding the May 9, 2006 order that set the 365 day benchmark to dispose of family court cases. The new order is more detailed and provides guidance to family law attorneys and litigants.

Under the new order, written requests for a final hearing need to be “delivered” to the court clerk within 365 days to prevent the case from being administratively dismissed. Previously, the clerk would send out 365 day benchmark notices when the case was more than a year old and the parties would have one month to request a final hearing or a pre-trial. Now the onus in on attorneys or pro se litigants to request the final hearing before the year elapses. In mandatory mediation counties, such as Charleston, one assumes mediation will need to occur before the request for final hearing can be submitted. Thus one needs to be thinking about setting mediation well before the year elapses.

The new order clarifies that such dismissals are without prejudice. The December 2009 version of form order SCCA 469 [the form administrative judges utilized to comply with the 365 day benchmark to administratively dismiss a case] noted this but the Supreme Court’s May 9, 2006 administrative order did not.

Under the new order, “[o]nce a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial…. If a case is continued for any reason past 365 days, the Order of Continuance must include a time and date rescheduling the case.”

The new order is explicit that “any existing orders in the affected case file which were not final will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.” The December 2009 version of form order SCCA 469 noted orders from administratively dismissed cases were unenforceable and arrearages were dismissed but the Supreme Court’s May 9, 2006 administrative order was silent on this issue. This new administrative order clarifies that final orders in such cases (typically findings of contempt from rules to show cause) remain valid.

There are a few cases in which one party would be happy for it to be dismissed under the 365 day benchmark. For the other, vast majority, of cases one should probably docket the matter to set mediation nine months after the case is filed (unless it is court ordered or already taken place) and docket the matter to request a final hearing shortly before the year elapses. This will prevent cases from being dismissed through inadvertence.

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  • Greg,

    How would you recommend GAL’s protect their right to collect outstanding fees when a case is facing 365 dismissal. Should a GAL just file a Rule or request a final hearing themselves?

    • Judge Jocelyn B. Cate (Charleston County Family Court’s current Chief Administrative Judge) claims she’s been putting provisions protecting the guardian’s fee in her administrative orders of dismissal. I haven’t seen any of these orders so I can’t confirm that.

      One might be able to file a post-dismissal motion for costs pursuant to SCRCP 54. That’s a novel approach and family court judges don’t always respond well to novel approaches.

      You could, of course, request a final hearing yourself. Nothing but habit prevents guardians from doing that. If the parties want the case dismissed they can agree to pay your outstanding balance as a condition of dismissal. That approach won’t make you popular but it will get you paid.

  • Thank you for sharing that.

  • Scott

    Greg Forman,

    If a case is transferred from one county to another, and is assigned a new case number, does that reset the clock for the 365 day benchmark?

    • I suspect that the case is redocketed when transferred, which would set the clock back to zero. But I wouldn’t count on my being right.

      • Krystal Scott

        The answer is, Yes it does. When the case is redocketed it is assigned a new case number, which, in turn, resets the clock back to zero. This can be good or bad depending on which side of the table you are sitting. However, I would still try to see if the ruling judge or administrative judge would consider the length of time a case was previously on the books in the previous county. Never hurts to ask, but that may not be likely to happen…New county, new case, new start.

  • T.L. McDuffie

    I am a litigant (defendant) in an upstate case filed early September 2013. The clerk’s office called plaintiff’s counsel last week to advise of imminent dismissal. Plaintiff’s counsel requested a final hearing on that day, October 23, 2014, so case was not dismissed. Isn’t that a violation of the Benchmark Order? I am confused, disheartened, and dismayed.

  • Sam

    Greg,
    My ex filed for an increase in child support. We had a temporary order in place with the increase. Nothing was filed for over a year (long story about me actually taking on custody responsibilities so her letting it go), and so the case was administratively dismissed last month. The child support office says that I still owe the amount in the increased TCO and it doesn’t matter that the case was dismissed. Is this a matter of paper work catching up, or do I need to file something?

  • Greg,
    I represent the plaintiff in a divorce case filed in June of last year. The defendant has been uncooperative in providing materials needed for trial or mediation. Even after a motion to compel we do not have what we need. Does the Court have the ability to extend the 365 day rule if the delay is caused by the party who will benefit from a dismissal?

  • Courtney

    Hello,
    I actually have a document stating that my case was stricken from the file book and may be restored only upon order of the chief administrative judge. Mine was a pend de lite order, temporary hearing giving my mother temp custody of my son. I just got a hold of this paperwork as of July 29th 2015. As he has been in her care since 2002. She has placed him a in a children home, where he should not be. I have been trying to find the right direction to take with this paperwork. And not having any luck. Your advice could be helpful to me. As I am trying to get him out of the childrens home and gain custody of him

    • Pamela Anastasi

      Have you found out any information about this. I am in the same situation now.

  • angela scott

    my son in law had a temporary court order dated 7/7/14 stating ex wife gets full custody. Guardian Ad Litem followed up with recommendations and results from DSS, family legal, and sheriffs dept were dropped because of being unfounded. Did not get a court date until 8/14/15 which is past the 365 days however because i am deployed i was not able to attend this court date. My question is if the case would be considered dropped since it was more than 365 days since initial court hearing. Any help or advice would be appreciated. Feel my son in laws attorney was not proactive in his case.

  • sbyrd

    so does that mean if a person has temporary custody order and a final hearing hasn’t been set 365 days from the original file date that the order would be dismissed and the child return

  • charles brandenburg

    Greg,
    My divorce process began in 2012, I had several other personal problems in my marriage interfering in my marriage. I was incarcerated for harassment for 22 months. I went to a hearing in scdc handcuffs, where the judge order a final order of separation, which took all custody and visitation away. But I have never received a final divorce decree. Does the 365 day rule dismiss the case, and am I still married. The final order if separation allow for zero contact. So I am not able to legally able to contact her.
    Thanks,
    Charles

    • Unless your wife obtained a divorce, you are still married.

  • Shirley Brazell

    My daughter has initiated a divorce on adultry 4/9/2015 -after almost 25 years of marriage.
    Her husband has admitted in the temporary hearing on 5/13:15 he was guilty. The Judge ordered $960 house payment, $600 Car Loans, he must file income tax 2013,2014 for he had gone into. Business for himself, which he closed once he received the divorce paperwork. He was carried back to court on 11/18/15; charged with willfull contempt. Judge ordered him 45 days in jail suspended on him completing these orders within 10-15 days
    Which as of this date 2/22/16 he has not complied. He is hiding assets and still in contempt – the attorney says they must settle by 4/9/16 which is 365 days or everything is dismissed and must start over – she is about to loose her home to foreclosure and no money for arbitration
    This seems a very large injustice – not given good representation. What is your advice
    Thank you

    • Not knowing why your daughter’s attorney won’t set the case for trial I’m not sure I can give you good advice. However setting the case for trial is the way to avoid a 365-day dismissal.

  • Norris, Norris

    Greg,
    My ex and I have been in a custody battle since 2012 but the last temporary orders were from 2013. Does this mean that I have to send my daughter to her grandmother’s for the supervised visitation even though the grandmother is denying her father to see her during these visits or is the temporary court orders indeed null and void due to the 365 day law and I do not have to send her? Thank you for your time.

  • Angela

    Can a defendant in a custody case get the temporary order be reinstated by the defendant if the case is dismissed under the 365 day rule?

  • Sam

    What if the other party is in default. Why would mediation be be necessary? That makes no sense. I know a case like that now. Attorney wouldn’t answer anything for 10 months and now there has to be mediation unless both parties agree and a Chief Judge approves the waiving. The 365 day rule is no problem. But why should anyone have to burden the expense of mediation when the other party is in default.

  • Tomorrow is the day for family court to come down on my ex for not paying child support. I just rec’d a call from clerk of courts saying it has been 365 days, and the court date has been changed. My ex was facing jail if going to court tomorrow because of not paying. That is NOT true, it was filed in February of 2016. We have a date in a week and a half to start mediations. I have a call into my attorney, but she is VERY slow at getting back to me. Did my ex have his lawyer finagle something and get the date changed as to NOT go to jail, and STILL NOT pay ? I don’t understand , now it pushes the date back. How can the courts do this without prof, or talking with my lawyer. Confused ?? Thank you in advance Greg from shedding any light on this for me/

  • Kelly

    I had an affair. After almost 4 months of absolute torture from my husbands high dollar extremely aggressive attorney, including my kids being kept from me, not allowed to even have contact with either of them, physiatric evaluations (all good), 6 month hair follicle drug testing (all negative), multiple ridiculous rules to show cause filed against me, all money hidden, all credit cards closed, health insurance and car insurance cancelled, it goes on and on. I had attempted suicide twice, lost between 30-40 lbs, completely broken down.

    My then husband calls and says he wants to talk. We met in the company of my therapist. He proceeds to tell me he wants all the attorneys and therapists out of our life and if I fire my attorney and go to divorce hearing and say I agree to terms of his divorce, he will drop all rules to show cause, drop restraining orders against me for my children, and I can come to our home and see my dogs. He also says we will go to a marriage intensive retreat and put our life back together. That he loves me and forgives me and wants us to be married, but he wants the divorce in case it doesn’t work out.

    This CANNOT be legal is it? He also never revealed where the 200k from our accounts went, nor was it reflected on his financial declaration, perjury?

    Within minutes of walking out of court he invites me to our home. Pours me a drink, has sex with me. Then says he never wanted to divorce me, but he wanted to make sure I knew what it would be like knowing he had the power to make me try to live without his money.

    Do I have any rights here?

  • Samantha

    A custody case is over 445 days old, filed late October 2015. Mediation was unsuccessfully, but completed just over a month ago. If neither party requests a trial be placed on the court’s docket soon, what surprises could these parties be facing from the court in relation to the 365 day rule?

    Also, is it safe to assume that if one of the parties requests a 5 day trial, it could take two to three months for this case to be on the docket and heard by a the court?

    Thank you in advance for your help.

  • Emily Spearman

    My divorce case was dismissed due to this rule. I filed a motion to restore the case and it was denied. I just found out this afternoon and I don’t understand why my motion was dismissed.

    He has not been difficult to deal with, not just with me and my lawyer but to his own lawyer who filed a motion to be removed from the case.

    Why would my motion be denied? Does this dismiss the the temp alimony order, which he has not paid a dime (owes $13,000 to date)? Does it dismiss the other court orders?

    I feel like he’s getting away with everything while I get punished and I didn’t do anything to put us here. He’s the ones who lied, cheated, abused, manipulated, etc to me and the system is treating me like he did.

    He is draging this out thinking he would run up my attorney few and I’d back down. I never have backed down to him and I’m not about to start doing it now.

    Also, he’s whacking up with one of his mistresses in another state and I will need to hire an attorney in that state to enforce any of the court orders from the divorce.

    He gets to live his life while I have to walk the line.

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