I too have read South Carolina Family Court Rule 9 (or how to piss-off a family court judge part 2)

Posted Saturday, June 26th, 2010 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

If you practice family law in South Carolina, how often has the following happened to you?:

ATTORNEY: [Asks the witness a question]


JUDGE: Sustained

If I am the attorney who has just had my question cut off without being able to explain why my question is permissible, I will ask the judge, “Your honor, may I be heard.”  Sometimes the response from the judge will be some variation on, “Counsel, aren’t you familiar with Family Court Rule 9?”  Actually, I am, but when the judge asks me such questions, I suspect that is not a path the judge wishes to go down.  The problem is that Family Court Rule 9(b) is confusing and, perhaps, contradictory:

Counsel shall not attempt to further argue any matter after he has been heard and the ruling of the court has been pronounced. No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court.

As I read the rule, once I am heard and the judge’s ruling has been pronounced, I “shall not attempt to further argue any matter.”  As some judges read this rule once that judge has issued his or her ruling, an attorney “shall not attempt to further argue” while ignoring that this applies only after the attorney “has been heard.”  These judges further note that “[n]o argument shall be made on objections to admissibility of evidence.”

Unfortunately the second sentence of Rule 9(b) contravenes South Carolina Rule of Evidence 103(b)(2), which reads:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ….[i]n case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.

In theory one could comply with Rule 9(b), SCRFC, while preserving any error through Rule 103(b)(2), SCRE, by not attempting to argue the admissibility of evidence but merely making a proffer of the evidence and stating the ground upon which the proffered evidence is admissible each and every time a judge sustains an objection to one’s question without allowing a response. In practice, going through the process of proffering the testimony and noting why the proposed testimony is admissible will be much more time consuming than simply asking to explain why the proposed testimony is admissible.

The next time a judge reminds me of Rule 9 while sustaining an objection to my question without first enquiring why the question might be allowable will have his or her views of Rule 9 respected through a constant stream of Rule 103(b) proffers.  I will be interested to see if that judge’s views of Rule 9 changes about my fourth or fifth proffer.

14 thoughts on I too have read South Carolina Family Court Rule 9 (or how to piss-off a family court judge part 2)

  1. California observer says:

    This will make great theater. Please be sure to tell us how it goes.

  2. Good blog. SCRFC 9(b) is unconstitutional b/c it violates a litigants right to a fair trial, and litigators have a duty to do what you suggest under SCRE 103(b) until our Sup Ct changes SCRFC 9(b) or finds it unconstitutional if a party cannot fairly present their case. However, I have not had any Fam Ct judges deny me the ability to argue why I believe the evidence is admissible. Thus, this issue may be more an intellectual one than reality. Wonder if others have encountered family court judges who try to strictly enforce SCRFC 9(b)?

    1. Melissa,

      I promise you that this issue isn’t merely an intellectual one. There is one Charleston County Family Court judge who repeatedly notes my lack of compliance with Rule 9 when I attempt to argue an issue after he’s sustained the opposing counsel’s objection. While I have not yet been sanctioned for a Rule 9 violation, this blog is my attempt to develop a response that protects my clients’ rights without violating Rule 9. My suspicion remains remains that this judge will consider my “cure worse than the disease.”

  3. Your blog is excellent, and I agree with your analysis of our rules. I wholeheartedly agree our Rules of Evid differ from SCFCR 9(b), and I agree with you that if a judge denies argument by an attorney based on SCRFC 9(b), a proffer under SCRE 103(b) is necessary and appropriate. Amazingly, I’ve learned few Family Court attorneys don’t even know how “proffer” their argument for the record or much less the basis for a proffer.

    Thank you for raising this important issue—-let’s discuss it at the next judicial/lawyer gathering!

  4. Lilly Collette says:

    I may have run into this same person. My opposition was sustained in so many pointless objections that I had cause to wonder why the pointless farce of any hearing at all.

  5. Greg, I think you may be confusing argument with stating the ground of the objection. The following is from McKissick v. J. F. Cleckley & Co., 325 S.C. 327, 344, 479 S.E.2d 67,75 (Ct. App 1996):

    Moreover, a specific objection to the admission of evidence must be made to preserve the issue for appeal. Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988). The objection should be sufficiently specific to bring into focus the precise nature of the alleged error so that it can be reasonably understood by the trial judge. Broom v. Southeastern Highway Contracting Co., 291 S.C. 93, 352 S.E.2d 302 (Ct.App.1986). The same ground argued on appeal must have been argued to the trial judge. Gurganious v. City of Beaufort, 317 S.C. 481, 454 S.E.2d 912 (Ct.App.1995) (a party may not argue one ground at trial and a different theory on appeal).

    State v. Clute, 324 S.C. 584, 593, 480 S.E.2d 85, 89 (Ct. App. 1996) stands for the proposition that “An objection to evidence must be contemporaneous and must be upon a specified ground.”

    It was not sufficient for opposing counsel to state “objection;” he should have said “objection, hearsay” or “objection relevance.” This is consistent with Judge Timothy L. Brown’s South Carolina Trial Ojbections Manual which states in the second sentence of the first paragraph at page one: “To properly make (sic) an objection andpreserve one’s objection for appeal, one must timely stand and state one’s objection in terminology sufficiently specific so the court can reasonably understand the precise nature of the alleged error.” Other than the split infinitive, I believe Judge Brown is correct.

    If the objection is overruled, the counsel may asked permission to argue in support of the objection.

    What is the effect of Rule 43(i), SCRCP, not being applicable to family court as provided by Rule 2(a), SCRFC?

    1. Thomas:

      I believe you may be confused about this blog. It is not objections to evidence that I am discussing; it is when the judge sustains an objection without allowing the propounding party the opportunity to respond before sustaining the objection. Because Rule 9(b), SCRFC–which, by the way, is identical to the first two sentences of Rule 43(i), SCRCP–forecloses argument once a judge issues a ruling on the introduction of evidence, even if counsel has not yet been heard on the issue, it appears the only allowable response in this situation is a proffer.

  6. Lilly Collette says:

    This may be of some interest: New Article Published by Professor Margaret Tarkington. Professor Tarkington’s newest article, “A Free Speech Right to Impugn Judicial Integrity in Court Proceedings,” was published in the March issue of the Boston College Law Review.

    1. Lilly,

      You continue to be like a well fountain of interesting legal information. Where do you find time to locate and read all of this?

  7. Lilly Collette says:

    I make the time because I actually love the law. I can only hope that what I share is of some value.

  8. Brittain says:

    What I find to be even more annoying is when a judge sides with a mother while ignoring the over abundance of evidence that sits in front of him. Shouldn’t family court judges sit on a bench to review the evidence and make an order that is best for the children involved (if any)? Why is it that the judges of our family court systems blatantly over look that the children of today’s society need to have a male parental figure in their lives? Especially when the father has done nothing but fight and sell most everything but his sole to continue to do so. I believe judges have an obligation to listen and read all facts of both sides to ensure he/she makes the best decision for all parties involved. It’s become evident that some don’t and I believe this type of behavior should be punishable.

  9. Doug says:

    You and I are of the same belief, as I am a male Primary Custodial Parent in the State of South Carolina.
    As for this blog, during my first hearing for divorce the judge allowed all evidence presented, after objection, of which my attorney would proffer. Type written pages of my ex-wife’s beliefs and not evidence thereof were presented. After reading over the transcript I know that it would have been an unmanageable argument in the Court of Appeals due just to the sheer volume. So it was not that the judge imposed Rule 9, but did not follow many of the other rules of SCRFC.
    Of course the Attorney’s present here realize that I have no legal training and at this point must state that my disgust for many laws are from my opinion that with each new law created a freedom is lost. Our Legislative branch has tipped the scales of justice towards failure of our system.

  10. Lisa says:

    Read many pages (endless sleepless nights & days of for month’s) of these types of notes/blogs/suggestions ect (self rep divorce) & I Love this guy, down to earth, well spoken, easy to understand. I would, without a doubt, have him in my corner anytime.
    Thank you Mr Forman for bestowing your wisdoms to us,

  11. rudy says:

    On May 20th a York county south Carolina family court judge awarded my ex wife all of my income. $1,150.00. Actually my income was only $1,125.00. He gave her $25.00 more than my income. I could not afford an attorney and still cannot. I have been arrested 3 times for contempt of court. I did send a letter to him but he did not reply. What can I do? Thanks.

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