Archive for the ‘Family Court Procedure’ Category

Who has the burden of proof on the willfulness element of contempt?

A few days ago I prosecuted a contempt action. The proof for one of the allegations of contempt was very document intensive and mathematical–reimbursement for unpaid medical expenses–and another was heavily reliant on exhibits. I figured that establishing violations would be easier by having my client explain the records through direct testimony rather than by cross-examining […]

Learn something new every day: involuntary non-suits in family court

I’ve long been aware that one could use Rule 41(b), SCRCP, to move to dismiss an action for failure to prosecute or as a sanction for the other party failing to comply with the rules of civil procedure or a court order. However yesterday, at the end of my case in chief of a contempt […]

Automatic discovery in family court–finally

Effective today (May 1, 2017) the South Carolina Supreme Court has amended Rule 25, SCFCR, to authorize automatic discovery in family court. In 23 years practicing under the prior rule, I only had three cases in which a motion for discovery was contested. In one case the family court authorized discovery. In the other two […]

Best practices in responding to requests for production

I spend a lot of time struggling to get opposing attorneys to fully respond to requests for production. Often it’s hard to tell if the response is adequate because often the response is not clear. Vague request for production responses can be treated as a failure to respond. See Rule 37(a)(3), SCRCP (“an evasive or […]

Is the lack of a set notice requirement in the UCCJEA a feature or a bug?

In 2008 South Carolina went from the Uniform Child Custody Jurisdiction Act (UCCJA) to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The updated statute was largely an improvement. It includes limitation upon the exercise of “emergency jurisdiction” so that an emergency cannot be used to give a state permanent jurisdiction. It provided powerful […]

Disciplinary opinion clarifies rules on records subpoenas in family court

#79 on my November 14, 2011 list of “One hundred things I don’t know about South Carolina family law,” reads, “Can one issue subpoenas duces tecum without an order of discovery?” The November 16, 2016 Supreme Court disciplinary opinion in In the Matter of Margaret D. Fabri , 793 S.E.2d 306 (S.C. 2016), answers that question in the […]

Playing Monopoly when no one agrees on the rules (or why I’m a Civil Procedure maven)

Any contest requires an agreement on the rules, in advance, to proceed properly. Many people have variations on Milton Bradley’s “official” Monopoly rules. When these folks play Monopoly without having agreed on the variations beforehand, disputes develop and the game halts. What was supposed to be a form of play devolves into an argument. Unless […]

There is no relief from judgment for intrinsic fraud (or do your due diligence)

South Carolina Rule of Civil Procedure 60(b) list five different ways one can use a streamlined procedure to obtain relief from a judgment within one year of the order or judgment. Item three includes, “fraud, misrepresentation, or other misconduct of an adverse party.” While the parallel rule of Federal Procedure, upon which the South Carolina […]

 

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