Few things cause family law practitioners more night sweats, indigestion and sheer abject terror than temporary hearings. These hearings can be held on five business days notice-fewer if the court finds an emergency situation exists. Rule 21(a), SCRFC. Unlike standard motions, supporting affidavits do not have to be provided prior to the hearing. Rule 21(c), SCRFC. While family court judges are required to make factual findings to support their orders from final hearings (Rule 26(a), SCRFC), this requirement does not apply to temporary hearings.
The only evidence generally received at temporary hearings are pleadings, affidavits and financial declarations. See Rule 21(b), SCRFC. Because they are not subject to cross-examination and do not have to be supplied prior to the temporary hearing, these affidavits and financial declarations are frequently rife with half-truths, exaggerations and outright fabrication. Based on this information, family court judges issue orders that determine temporary custody of a party's children and implement support requirements transferring a substantial portion of one party's income to another party. The custody, support and attorney's fees provisions of temporary orders are not stayed by appeal. Rule 225(b)(6 & 9), SCACR. Despite this, the family court shows little restraint in using civil contempt sanctions, including incarceration, to enforce temporary orders.
Given the rules that structure temporary hearings, it is not surprising that family court litigants often believe temporary orders are unjust or ask the impossible. Further, a hearing on the merits is often months or even years away. Yet it is possible to obtain relief from these orders prior to a trial on the merits by: 1) motions to modify; 2) subsequent motions for temporary relief; and 3) petitions for supersedeas. While attempts to obtain relief from temporary orders should be used sparingly, this capacity creates an important safety valve in protecting clients from unjust or impossible-to-comply-with temporary orders. This article will explore the three methods of obtaining relief from family court temporary orders and analyze when each method is appropriate.
Motions to Modify
Motions to modify bear the same relationship to temporary orders that motions for a new trial bear to final orders. While motions for a new trial only apply to final orders (Rule 59, SCRCP) motions to modify have an explicit basis in the family court's jurisdictional statute, S.C. Code Ann. § 20-7-420, which allows the court "[t]o modify or vacate any order issued by the court." § 20-7-420(25). A motion to modify is directed to the judge who issued the temporary order and is appropriate in any of three circumstances: 1) the order is based, in part, on clearly erroneous factual assertions; 2) provisions of the order are based on an error of law; or 3) it is clearly impossible for the party seeking modification to comply with the court's order.
Since family court judges will rightly perceive motions to modify as a disagreement with their original ruling, these motions should be used sparingly and only to correct obvious errors which will do irreparable harm to one's client if not immediately corrected.
Subsequent Motions for Temporary Relief
Because subsequent motions for temporary relief do not challenge the propriety of the court's original temporary order, such motions can be used with greater impunity. These motions do not need to be directed to the original temporary hearing judge and are useful in either of two circumstances: 1) relief not requested or dealt with at the prior temporary hearing needs resolution prior to trial; or 2) events subsequent to the prior temporary hearing render the prior temporary order unjust or untenable.
In Calhoun v. Calhoun, 331 S.C. 157, 165, 501 S.E.2d 735, 739 (Ct. App. 1998), the Court of Appeals found the family court had erred in concluding it could not revisit temporary issues based on a party's plea of "changed circumstances" (n.b. not substantially changed circumstances). Calhoun illustrates that the family court has the power to modify temporary orders where circumstances have changed since the issuance of the prior order. Obviously, the court is more likely to modify prior orders pendente lite when failure to modify the prior order before trial will cause irreparable harm. Thus, the family court appears more willing to modify orders that cannot be rectified after trial (e.g., pendente lite visitation and custody) than it is to modify orders that can be rectified (e.g. pendente lite support). However, whenever subsequent facts indicate that further application of the court's prior temporary order is doing substantial harm to a party or the parties' children, the family court is quite willing to entertain subsequent motions for temporary relief.
When seeking to obtain relief from prior temporary orders, a practitioner should be clear about which basis he or she is proceeding upon and note in the motion whether the authority for the motion is S.C. Code § 20-7-420(25) or Calhoun. Often it is not clear on which basis the motion should be filed. A good rule is that motions based on facts that occurred subsequent to the prior order should be based on Calhoun and motions based on facts in existence at the time of the prior order should be based on § 20-7-420(25). For example, assume the family court based support on a party's claim of $2,000.00 per month in income. If evidence later shows that the party's income was actually $6,000.00 at the time of the temporary hearing, the motion should be based on § 20-7-420 (25). If, however, the party subsequently obtains new employment at $6,000.00 per month, the motion should be based on Calhoun.
Petitions for Supersedeas
When all else fails, there is always the Court of Appeals. Applying to the appellate court for relief from a temporary family court order through a petition for supersedeas is a remedy that should be invoked sparingly-and only to correct the most egregious or unforgiving of family court errors. However, it may be worth pursuing to correct inexplicable pendente lite custody orders. It is also better protection against subsequent contempt findings and sanctions that is attempting to convince a family court just at a rule to show cause that it was impossible for a party to comply with support provisions of a temporary order.
"The purpose of supersedeas is to stay proceedings in the trial court, to preserve the status quo pending the determination of the appeal, and to preserve the fruits of a meritorius [sic] appeal where there might otherwise be lost to him. As a rule, a supersedeas does not reverse, annul, or undo what has already been done, or impair the force of the judgment, order, or decision of the trial court. [A] supersedeas suspends the judgment but does not annul the judgment itself." Graham v. Graham, 301 S.C. 128, 390 S.E2d 469, 470 (Ct.App. 1990) (citation omitted).
Surprisingly, a petition for supersedeas does not require substantial additional work: a notice of appeal must be prepared, filed and served, while the petition for supersedeas is merely a verified petition explaining the factual and legal basis of the party's request for relief. In this petition, one should show why the family court's order was in error and how failure to correct the error will cause immediate harm to the petitioner. See Rule 225 (d)(4)(A & B), SCACR. For support, one can use the documentation previously filed with the family court. "In determining whether an order should issue pursuant to this Rule, the trial judge, appellate court, or judge or justice thereof should consider whether such an order is necessary to preserve jurisdiction of the appeal or to prevent a contested issue from becoming moot." Rule 225(c)(2), SCACR. The cost of bringing a petition for supersedeas is only $125.00: $100.00 for the appeal filing fee and $25.00 for the petition fee. Even the requirement of ordering the transcript is held in abeyance pending the family court's issuance of a final order. See, Neville v. Neville, 278 S.C. 411,297 S.E.2d 423 (1982).
Typically, the petition for supersedeas should first be directed to the family court judge. Rule 225(d)(1), SCACR. However, it can be made directly to the Court of Appeals in extraordinary circumstances. Rule 225(d)(1), SCACR. "The issuance of an ex parte order or an unnecessary delay by the lower court in ruling on this application shall constitute an extraordinary circumstance." Rule 225(d)(1), SCACR. The petition for supersedeas may even be made on an ex-parte basis, though ex-parte petitions are rarely granted. Rule 225(d)(6), SCACR.
"If no application was made to the lower court, then the petition shall state the extraordinary circumstances which made it impracticable to make such an application." Rule 225(d)(4)(C), SCACR. Sometimes, an impending rule to show cause or a rejected motion to modify is sufficient to show extraordinary circumstances and allow direct consideration by the Court of Appeals. For more guidance on the contents of a supersedeas petition consult Rule 225(d), SCACR.
While the above remedies should be invoked cautiously, they provide family court litigants and practitioners some measure of relief from onerous, erroneous or unjust temporary orders. Carefully used and applied, they can protect a client's relationship with his or her children and protect against unwarranted financial instability or harsh contempt sanctions.