What is the Difference Between a Family Court Temporary Order and Final Order?
Family court allows motions for temporary relief to be heard on five business days notice, with a shorter notice requirement in emergency circumstances. Meanwhile an answer to the complaint isn’t even required until thirty days after service, and it often takes a year or more until the case is ready for trial or enough docket time is available for it to be set for trial. Thus orders from motions for temporary relief (called “temporary orders”) can issue well before a family court dispute is ready for trial or a final resolution. Litigants can operate under a temporary order for a year or more until a final order is issued. Parties who obtain their requested relief at the temporary hearing often have a hard time understanding why a final order is necessary. Because temporary orders and final orders appear to be similar in form and remedy, family court litigants fail to see a distinction; understanding the distinction is crucial.
Even if a temporary order is reached through the consent of the parties, it is a temporary resolution of the issues and does not resolve the case. A judge hearing a motion for temporary relief will rarely take testimony or review numerous documents. Even if testimony is taken, it will probably only be taken from a few witnesses and on limited topics. Instead the ruling will be based primarily upon a review of affidavits and financial declarations. The ruling of the family court judge and any factual findings that judge might make in a temporary order (such findings are not required in temporary orders) are not binding on whatever judge ultimately hears the trial. “Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.” Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004). A temporary order is merely designed to set the parties’ rights and responsibilities on a temporary basis until the parties reach a final agreement or until the trial judge hears all the evidence and issues a final order. A temporary order is designed as a band aid or tourniquet–there to stop the bleeding but not act as a cure. It is not a permanent resolution of the dispute.
A final order results in a final resolution of the lawsuit. It can either be the result of the parties’ reaching a final negotiated agreement on all issues raised in the pleadings (the Plaintiff’s complaint and the Defendant’s counterclaim) that the court then schedules a hearing to approve, or as a result of a judge hearing testimony and reviewing evidence at trial and rendering a decision on these issues. In reaching a final order after trial a judge is required to make detailed factual findings and legal conclusions to justify the ruling. Once a final order issues all temporary orders issued in the case are no longer in effect. Any previous final orders are also no longer valid to the extent the new final order explicitly or implicitly modifies the previous final order. Further, unless one party files a post-trial motion under Rule 59, SCRCP, or files an appeal, the issuance of a final order ends the lawsuit. While certain issues in family court final orders can be revisited upon a showing of substantial change of circumstances–child support; visitation; custody; and modifiable alimony–other issues can never be revisited–divorce; property division; attorney’s fees and costs,; and non-modifiable alimony or the denial of alimony. Even final order relief that can be modified is harder to modify than to obtain in the first final order; for example, it is harder to modify custody than to obtain custody in an initial custody case.
On May 9, 2006, the South Carolina Supreme Court issued an administrative order requiring all family court actions to be set for trial or pre-trial within 365 days of filing. If that year elapses and no final order has issued, no trial has been scheduled, and no pre-trial has been requested, the court clerk will send out a notice indicating that the action is subject to dismissal if no pre-trial is requested or final hearing set within thirty days. If no action is then taken in this thirty-day period the whole lawsuit is subject to administrative dismissal. If a family court lawsuit is administratively dismissed, all temporary orders become void and any outstanding obligations under the temporary order also become void. If there is a prior final order between the parties, that final order regains its effect (to the extent a temporary order in the new action modified it). If there is no prior final order between the parties then there is no court order setting forth their rights and obligations. While it can take two years or more for some actions to be administratively dismissed due to a failure to obtain a final order, request a pre-trial or set a final hearing, in theory an action can be administratively dismissed within thirteen months of filing.
Thus litigants in a family court proceeding cannot treat temporary orders as final resolutions of their disputes. Family court motions result in temporary orders (unless the parties reach a final agreement on all issues and have that agreement ratified by the court as a final order at that motion hearing) and are not permanent resolutions on the temporary issues. A party cannot rest on the temporary order but must prepare for trial or reach a final agreement on all issues. Only final orders are durable and result in the ending of the litigated dispute. Treating a temporary order as a final resolution leads to disaster when the order is administratively dismissed or when the case needs to be set for trial in order to avoid such dismissal and no preparation has been made for trial.