When and Why Should Post-Trial Motions be Brought Regarding Family Court Orders?
South Carolina Rules of Civil Procedure 52 and 59 allow the family court to alter or amend final orders or judgments. “A motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order.” Rule 59(d),SCRCP. “When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.” Rule 59(c),SCRCP. “A party filing a written motion under this rule shall provide a copy of the motion to the judge within ten (10) days after the filing of the motion.” Rule 59(f), SCRCP. “The time for appeal for all parties shall be stayed by a timely motion under this Rule and shall run from the receipt of written notice of entry of the order granting or denying such motions. … The motion may in the discretion of the court be determined on briefs filed by the parties without oral argument.” Rule 59(e), SCRCP.
There are “two basic situations in which a party should consider filing a Rule 59(e) motion. A party may wish to file such a motion when she believes the court has misunderstood, failed to fully consider, or perhaps failed to rule on an argument or issue, and the party wishes for the court to reconsider or rule on it. A party must file such a motion when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review.” Elam v. South Carolina Dept. of Transp., 361 S.C. 9,602 S.E.2d 772, 780 (2004).
In the situation in which the family court has failed to rule on an issue raised at trial, a post-trial motion is required if the issue is going to be raised on appeal. “[I]ssues not raised and ruled upon in the trial court will not be considered on appeal.” Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843, 856 (Ct.App. 2009). To be preserved, the issue must be explicitly ruled upon. Siau v. Kassel, 369 S.C. 631,632 S.E.2d 888, 894 (Ct.App. 2006) (“when an issue presented to the circuit court in a civil case is not explicitly ruled upon in the final order, the issue must be raised by an appropriate post-trial motion to be preserved for appellate review.”) Further “[a] party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.” Spreeuw, supra at 855. However if the family court judge still fails to rule upon an issue that was raised at trial and in a post-trial motion the issue is preserved for appeal.
“Once the issue has been properly raised by a Rule 59(e) motion, it appears that it is preserved and a second motion is not required if the trial court does not specifically rule on the issue so raised.” Coward Hund Const. Co., Inc. v. Ball Corp., 336 S.C. 1,518 S.E.2d 56, 58 (Ct.App. 1999). “A second [post-trial] motion is appropriate only if it challenges something that was altered from the original judgment as a result of the initial motion.” Id. In Coward Hund the appellant brought a second Rule 59 motion after the trial court failed to rule on issues raised in the first Rule 59 motion. Because the second motion was considered improper it did not toll the time to file a notice of appeal and the Court of Appeals dismissed the appeal as time-barred.
“Post-trial motions are not necessary to preserve issues that have been ruled upon at trial; they are used to preserve those that have been raised to the trial court but not ruled upon.” Bailey v. Segars, 346 S.C. 359, 550 S.E.2d 910, 913 (Ct.App. 2001). “The raised to and ruled on rule of error preservation requires only a ruling, not necessarily a favorable one.” Eubank v. Eubank,347 S.C. 367, 555 S.E.2d 413, 418, n.2 (Ct.App. 2001).
To summarize the rules surrounding post-trial motions designed to preserve issues for appeal, they must be brought if the issue was raised at trial and not explicitly addressed in the final order. They cannot raise new issues. If the court still fails to address the issue in its order from the Rule 59 motion, a second Rule 59 motion is improper and the issue is preserved for appeal. However, a second Rule 59 motion is appropriate if it challenges something that was altered from the original judgment as a result of the initial motion. Every family court judge I have ever appeared in front of understands the need for this type of post-trial motion and will not take such motions lightly.
A second, less commonly used, purpose for post-trial motions is where a party believes the court has misunderstood or failed to fully consider an issue and the party wishes for the court to reconsider it. Commonly called “motions to reconsider” such use of a Rule 59 motion is discretionary and a party may appeal issues that could be raised in such a motion without first asking the family court to reconsider its order. Unlike post-trial motions that seek an explicit ruling upon an issue raised at trial but not ruled upon, these motions to reconsider challenge a judge for either making erroneous legal conclusions or improperly weighing evidence. Since no judge is perfect, reconsideration is a method that litigants can use to avoid the trouble and expense of an appeal and allow the judge to avoid any embarrassment he or she may suffer from a reversal on appeal.
Worth noting is that the filing of a post-trial motion does not stay enforcement of the judgment, though one case ask the judge issuing the judgment to stay the order pending resolution of the motion. See Rule 62(b), SCRCP.
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