Was it a mistake to prevent immediate appellate review of temporary family court orders?

Posted Thursday, March 11th, 2010 by Gregory Forman
Filed under Alimony/Spousal Support, Child Custody, Child Support, Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Specific

It is extremely difficult to get family court temporary orders modified merely upon a claim that the order issued was unfair, based upon inaccurate information, or poorly reasoned.  Some (most?) family court judges will not reconsider their temporary orders.  They accurately note that Rule 59, SCRCP, which allows the court to alter or amend judgments, applies only to judgments and not to temporary orders.  While the provisions of S.C. Code Ann. § 63-3-530(25), which allows the family court to modify any orders, would appear to allow a family court judge to modify his or her temporary order, some family court judges refuse to consider motions to modify temporary orders absent a showing of changed circumstance because this code section does not provide any criteria as to when such orders should be modified.

Further these temporary orders are not subject to immediate appellate review.  South Carolina Code Section 14-3-330 lists the type of orders that can be reviewed on appeal.  Code § 63-3-630 makes these rules applicable to appeals from family court.  With certain limited exceptions orders that are not final orders (i.e., interlocutory orders) are not subject to immediate appellate review.

The case of Hooper v. Rockwell, 334 S.C. 281, 290-91, 513 S.E.2d 358, 363 (1999) does a good job explaining the distinction between interlocutory and final orders:

[A]n order is interlocutory if there is some further act which must be done by the court prior to a determination of the rights of the parties or if a judgment determines the applicable law while leaving open questions of fact.

Hooper also does a good job explaining the rationale of not allowing immediate review of interlocutory family court orders:

[A]n order issued as a result of a probable cause hearing in an emergency removal case is interlocutory in nature and not immediately appealable.  At that point, any investigation by law enforcement or DSS, as well as any consideration of the case by the family court, is at such an early stage an appellate court would have little or nothing to review.

However, any order issued as a result of a merit hearing, as well as any later order issued with regard to a treatment, placement, or permanent plan, is a final order that a party must timely appeal.  At that point, investigators and DSS have presented evidence to the family court, the parents or guardians of the child have had an opportunity to challenge the evidence and present their case, and the family court has decided whether the allegations of the removal petition are supported by a preponderance of the evidence …

Id., 334 S.C. at 291, 513 S.E.2d at 363-64.

Family court temporary hearings on custody do not allow the parties to present and challenge evidence and result in orders that can be, and often are, modified when the final order is issued.  Thus, they are considered interlocutory.  As they are interlocutory, and therefore not subject to immediate review upon appeal, appeals from these orders are held in abeyance until the final order is issued. Neville v. Neville, 278 S.C. 411, 297 S.E.2d 423 (1982).  The only method of obtaining appellate relief from family court temporary orders is to file an appeal and then a petition for supersedeas. Rule 241, SCACR.

I am not convinced this is good jurisprudence.  Contested custody cases almost always take more than a year from the first hearing until a final order is issued and often take longer than that.  A two year period during which parents live under an unreviewable temporary order represents over ten percent of the child’s minority.  Further, the temporary order on custody will become moot once the final order is issued, as the final order will supersede the temporary order.   Thus it will never be subject to appellate review.  See e.g., Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843, 857 (Ct.App. 2009) (“an issue becomes moot when a decision, if rendered, will have no practical legal effect upon the existing controversy.”)

The end result of the appellate courts refusing to immediately review temporary custody orders, and of such orders becoming moot by the time the order would be reviewable, is that no jurisprudence has developed, or could conceivably develop, regarding temporary custody orders. Ironically, jurisprudence has developed that would allow review of such moot orders, though it has not been used in this context. As noted in State v. Passmore, 363 S.C. 568, 611 S.E.2d 273, 280 (Ct.App. 2005):

[A]n appellate court can take jurisdiction, despite mootness, if the issue raised is capable of repetition but evading review.  Second, an appellate court may decide questions of imperative and manifest urgency to establish a rule for future conduct in matters of important public interest.  Finally, if a decision by the trial court may affect future events, an appeal from that decision is not moot, even though the appellate court cannot give effective relief in the present case.

Temporary custody orders are not just capable of repetition but evading review, they are uniformly issued with the understanding that they cannot be reviewed (because of mootness).  Further, a temporary decision on child custody affects the future award of custody as it provides one party the ability to demonstrate his or her capacity as a custodial parent while denying the other parent that same ability.  However, review of such orders under the exception to the mootness doctrine at the end of the case does not alleviate this problem; instead it make more sense to allow review when the temporary custody order is issued.  Yet, as it now stands, a parent aggrieved by a temporary custody order has few good remedies and there is no ability for a jurisprudence to develop regarding temporary custody orders.

From a jurisprudence standpoint, the inability to obtain appellate review of temporary orders of child or spousal support is less problematic.  In theory, any overly generous or unduly stingy support award is capable of remedy at trial or on appeal through an award of more money, or a credit or refunds for overpayment.  Try explaining this justification to a litigant burdened by an excessive support obligation or struggling to support him or herself and the child or children on a minimal, or no, support award.   However, from a purely legal standpoint, the inability of family court litigants to obtain immediate review of their child and spousal support orders is even problematic.  This is because the law already treats each individual alimony or child support payment as a judgment. Thornton v. Thornton, 328 S.C. 96, 492 S.E.2d 86, 96 (1997).  If a temporary order is creating periodic money judgments for child or spousal support, why isn’t it subject to immediate appellate review?

There is a balance to be struck between burdening the appellate courts by allowing full immediate appellate review of family court temporary orders and having minimal appellate oversight over such orders.  The current system tips that balance too severely away from meaningful oversight of orders that can have profound implications for a spouse’s ability to adjust after separation or a parent’s ability to maintain a relationship with a child after litigation is commenced.

2 thoughts on Was it a mistake to prevent immediate appellate review of temporary family court orders?

  1. What makes the issue even more frustrating and confusing is that litigants try to get around the inability to appeal an interlocutory order by simply filing another motion for temporary relief hoping for a different judge and result. When judges allow subsequent temporary hearings without allegations of significant change of circumstances, the rule barring appeals of interlocutory orders is ignored and circumvented. We need clear cut rules so there is no arbitrariness in dealing with this issue. Personally, I strongly believe we need a clear cut rule that allows unjust Temp Orders, esp those based on affidavits that may contain flawed facts, so parties and children are not penalized at a final hearing 1 or 2 years later that essentially cements a harmful “status quo.”

  2. MJ Goodwin says:

    I think if an attorney can show a blatant falsehood in an affidavit, that there should be a provision for a de novo temporary hearing. These false affidavits are a tremendous problem. By the time the actual trial rolls around, usually years after the temporary hearing, the aggreived party is so worn down and broke (physically, emotionally and financially) that is just swept under the rug. There needs to be a provision for that situation.

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