What is and is not Modifiable in a Family Court Final Order?
The term “final” in a South Carolina Family Court Final Order confuses many litigants. Some aspects of a “Final Order” can never be modified; some aspects can always be modified; and some aspects can be modified in limited circumstances.
A final order can always be modified through a Motion to Alter or Amend a Judgment brought pursuant to Rule 59, SCRCR, a Motion for Relief from Judgment brought pursuant to Rule 60, SCRCR, or an appeal. A final order actually isn’t considered final if a Rule 59 motion or an appeal is brought, though many provisions of such final orders remain enforceable until and unless the order is subsequently modified. However one has a limited time period to take these actions. If these motions or appeals are not filed in the required time frame, or if the order isn’t modified by the motion for reconsideration or appeal, it becomes final.
The following lists assume the order has not been modified by appeal or reconsideration:
In family court, the decision and ground for divorce are final and cannot be modified. Decisions regarding the award of attorneys fees and costs are final and cannot be modified. Decisions regarding the division of marital property and debts are, with a very limited exception, final and cannot be modified. S.C. Code Ann. § 20-3-620(C) (“The court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.”)
That exception is when the final order specifically reserves jurisdiction to divide a certain piece of property. Often this exception is used to divide retirement benefits or pensions. Sometimes it is used to divide a marital home that the parties wish to defer division of until a later date so that a spouse or children can remain there for a limited period of time.
Alimony is sometimes modifiable and sometimes not. A decision not to award alimony is non-modifiable unless the court reserves jurisdiction to set alimony at a later date. This is occasionally done when a supported spouse’s need for alimony or the supporting spouse’s ability to pay alimony does not exist in the present but that need or ability is anticipated to change in the future. Permanent periodic alimony is “terminable and modifiable based upon changed circumstances occurring in the future.” S.C. Code § 20-3-130(B)(1). Lump sum alimony is “not terminable or modifiable based upon remarriage or changed circumstances in the future” but is terminable upon the death of the supported spouse. S.C. Code § 20-3-130(B)(2). Rehabilitative alimony is “modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony.” S.C. Code § 20-3-13o(B)(3). Reimbursement alimony is “terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)) but not terminable or modifiable based upon changed circumstances in the future.” S.C. Code § 20-3-130(B)(4). While divorcing spouses can enter agreements making normally modifiable alimony non-modifiable or normally non-modifiable alimony modifiable, the court cannot order this absent their agreement.
Finally all aspects of a final order involving children can be modified upon a showing of a substantial change of circumstances. Child custody and visitation can be modified until the child turns age eighteen. Once a child turns age eighteen, the court can no longer decide that child’s custody. Holcombe v. Kennison, 300 S.C. 479, 388 S.E. 2d 807 (1990). Child support probably can be modified “past the age of eighteen years if the child is enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.” S.C. Code § 63-3-530(17). The case of Smith v. Doe, 366 S.C. 469, 623 S.E.2d 370 (2005) set initial child support for a disabled adult child. Thus child support can probably be modified after a child turns age eighteen.
Even the aspects of a final order that are modifiable are harder to modify than they are to initially obtain. Further, as noted above, many aspects of a final order are non-modifiable. The time to seek competent counsel is long before such final orders issue.