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Does the Family Court Have Authority to Order a Spouse out of the House on an Ex-Parte Basis? (September 2007)

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Material for South Carolina Bar “Hot Tips” Lecture–September 2007; published in American Journal of Family Law, Winter 2008

When a spouse is confronted with an ex-parte order requiring him or her to vacate the marital home, that spouse is often left at an incredible strategic disadvantage in the emergency hearing to come. Left without access to records and evidence and forced to find new lodging and get resettled within a narrow time frame, that spouse has little chance to prepare for a contested hearing on child custody and support issues. The disadvantage is further compounded by the fact that the spouse obtaining the ex-parte order has often had the chance to engage in significant litigation preparation before any marital dissolution action is filed.

There is something frightening about any court having the power to order someone out of his or her home without any notice or due process. Yet the family court judges do it. I have been involved in cases in which such ex-parte orders have issued even when no fault ground for divorce was alleged. Given this, does the Family Court have the authority to order a spouse out of the house on an ex-parte basis?

One Answer: Of Course It Does

“The family court is a statutory court created by the legislature and, therefore, is of limited jurisdiction. Its jurisdiction is limited to that expressly or by necessary implication conferred by statute.” State v. Graham, 340 S.C. 352, 532 S.E.2d 262, 263 (2000). S.C Code Ann § 63-3-530 (30) gives the Family Court the broadest authority possible “To make any order necessary to carry out and enforce the provisions of this chapter…” The Family Court clearly has the power to decide who gets to use the marital home on a temporary basis. Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995). The Family Court further has the power to award the marital home as part of any equitable distribution award. S.C. Code Ann. § 20-3-620 (10).

The Family Court also has the power to issue ex-parte orders. Rule 2, SCRFC, makes Rule 65, SCRCP applicable to Family Court actions. Rule 65(b), SCRCP, states that “No temporary restraining order shall be granted without notice of motion for the order to the adverse party unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.” (emphasis added)

Since the Family Court has authority to award use of the marital home on a temporary (and permanent) basis and has the authority to issue ex-parte orders, the argument logically follows that the Family Court has authority to order a spouse out of his or her home on an ex-parte basis.

Another Answer: The Appellate Courts and Legislature Have Already Created the Mechanisms to Remove a Spouse From the Marital Home

South Carolina’s legislature has created the Protection From Domestic Abuse Act, in part, as a mechanism to have abusive spouses removed from the home. See S.C. Code. Ann. § 20-4-10, et, seq. That act specifically allows for hearings to go forward on less than 24 hours notice for good cause shown. § 20-4-50 (a). That act further allows for the court to grant a spouse possession of the marital home. § 20-4-60 (c)(3).

Further, the Watson case created a mechanism for the Family Court to order a spouse out of the house on a temporary basis. In that case, the Family Court dismissed the action at the temporary hearing because both spouses were still living in the marital home. The South Carolina Supreme Court reversed and provided the following guidance as to when a spouse could be ordered out of the home in domestic litigation:

We hold that public policy permits a party to remain in the home and institute divorce litigation premised on fault grounds other than desertion. In such cases, the living arrangements of the parties and the children during the pendency of the litigation should be decided at the temporary hearing.

Watson, supra, 460 S.E.2d at 396. That holding provides no indication that a spouse could be ordered out of the house, as part of a domestic dissolution case, prior to the temporary hearing.

Given that the appellate courts and legislature have already provided mechanisms to have the Family Court order a spouse out of the house and that neither of these mechanisms allow for such ex-parte orders, there is a reasonable argument that the Family Court lacks such authority.

Constitutional Issues

One argument against the authority to issue such ex-parte orders is that the rights to one’s home are subject to significant constitutional protections. The Fourth Amendment of the United States Constitution reads “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” Being ordered out of one’s home on an ex-parte basis does not leave one “secure” in one’s home.

Further, South Carolina’s parallel constitutional provision, Const. Art. 1, § 10, offers even greater protections in that it explicitly grants the right to privacy: “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy...” (emphasis added). South Carolina’s Supreme Court interprets this provision as offering greater protections than the United States Constitution. See e.g., State v. Forrester, 343 S.C. 637, 541 S.E.2d 837, 841 (2001) (“The South Carolina Constitution, with an express right to privacy provision included in the article prohibiting unreasonable searches and seizures, favors an interpretation offering a higher level of privacy protection than the Fourth Amendment”).

The Fifth Amendment of the United States Constitution reads “[n]o person shall … be deprived of life, liberty, or property, without due process of law.”

The requirements of procedural due process, usually deemed to apply in a contested case or hearing which affects an individual’s property or liberty interest, generally include adequate notice, the opportunity to be heard at a meaningful time and in a meaningful way, the right to introduce evidence, the right to confront and cross-examine witnesses whose testimony is used to establish facts, and the right to meaningful judicial review.

Sloan v. South Carolina Bd. of Physical Therapy Examiners, 370 S.C. 452, 636 S.E.2d 598, 615 (2006).

Few of the due process rights expressed in Sloan are protected by ex-parte orders (arguably some of these rights are not even protected in Family Court temporary hearings). Thus, if an ex-parte order requiring someone to vacate his or her home deprives that person of his or her property, such an order does not comport with due process.

Prudential Issues

South Carolina’s Supreme Court recognizes that “the ancient view that ‘a man’s home is his castle’ into which ‘not even a king may enter’ has lost none of its vitality.” Southern Bell Tel. and Tel. Co. v. Hamm, 306 S.C. 70, 409 S.E.2d 775, 780 (1991), citing Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1969). People have strong attachments to their home, in part, because it is the one space where they reign sovereign. There is something offensive about being ordered out of one’s home without an opportunity to be heard.

Further, if the Family Court has authority to order someone out of their home on an ex-parte basis, that authority undermines the trust that binds married couples together. The ability to have one’s spouse ordered out of the home without any opportunity to be heard is ripe for abuse. In cases where no fault ground for divorce exists, it can be used to give the court jurisdiction over a separate maintenance action where no such jurisdiction would otherwise exist. Given the limited budgets of most family law litigants, the remedy of being able to fully litigate the impropriety of a particular ex-parte order at trial will rarely be truly available. Meanwhile, all spouses are subject to the risk that their spouse, acting in an underhanded manner, may seek to have them ordered out of their home without any prior knowledge of a complaint being filed and with no opportunity to be heard beforehand.

Any such power that undermines trust in all marriages should have commensurately high benefits. Yet, given that less than 24 hours notice is required to have a spouse ordered from their home in a domestic abuse action, there are few situations in which an ex-parte order would appear necessary. In my thirteen years of practice in family law, I have never sought such an ex-parte order because I see them as improper and fundamentally unfair.

Remedies

Until the South Carolina appellate courts render a reported decision on the propriety of such ex-parte orders, Family Court judges are likely to continue issuing them. Further, given that these ex-parte orders are almost always moot by the time of trial, it is unlikely that this issue will be brought before the appellate courts (except as a Petition for Supersedeas, in which the decision will be unpublished).

One remedy is for the Family Court bar to begin demanding strict compliance with the requirements of Rule 65 (b), SCRCP and Rule 3.3(d), South Carolina Rules of Professional Conduct from the court and their fellow bar members. Rule 65 (b), SCRCP reads as follows:

No temporary restraining order shall be granted without notice of motion for the order to the adverse party unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall be served, together with a summons and complaint in the event no summons and complaint have previously been served in the action, upon the adverse party in accordance with the provisions of Rule 4; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a temporary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

Rule 3.3(d), South Carolina Rules of Professional Conduct mandates that: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

How many attorneys, in seeking ex-parte orders “inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse” as required by Rule 3.3(d), South Carolina Rules of Professional Conduct? How many ex-parte applications clearly show “specific facts … by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon” as required by Rule 65(b), SCRCP? How many ex-parte orders “define the injury and state why it is irreparable and why the order was granted without notice” as required by Rule 65(b), SCRCP? If the Family Court bar demanded greater compliance with these rules from the bench and from each other, fewer egregious ex-parte orders would issue.

One remedy to an improper ex-parte order is contained within the very rule that enables it. Rule 65(b), SCRCP, requires a hearing at the earliest possible time (two days notice, or less if the court so directs) to dissolve or modify an ex-parte order if the party being restrained requests it. This mechanism is rarely used in Family Court but can be used if the ex-parte order was improperly issued.

Another remedy is a petition for supersedeas. A petition to supersede an ex-parte order can bypass the issuing court and proceed directly to the appellate court. Rule 241(d)(1), SCACR. One important purpose of an order of supersedeas is “to preserve the status quo pending the determination of the appeal, and to preserve to appellant the fruits of a meritorious appeal where they might otherwise be lost to him.” Graham v. Graham, 301 S.C. 128, 390 S.E.2d 469, 470 (Ct.App. 1990) (citations omitted). An ex-parte order requiring a spouse to vacate his or her home upends the status quo and the results of a favorable appeal once the final order issues will not grant the aggrieved spouse “the fruits of a meritorious appeal.” Given this, a spouse who believes an ex-parte order requiring him or her to vacate the marital home was improperly issued should consider an appeal and petition for supersedeas.

Conclusion

There is no clear authority on whether an ex-parte order requiring a spouse to vacate his or her home is proper. There are very limited circumstances in which the appellate courts would be in a position to render guidance on this issue through a published decision so such guidance cannot be anticipated. All a practitioner can do when faced with such an order is demand opposing counsel and the courts comply with the requirements of Rule 65 (b), SCRCP and Rule 3.3(d), South Carolina Rules of Professional Conduct and seek immediate review or supersedeas if the challenge is reasonable and the client consents.