What does default mean in South Carolina family court?

South Carolina Family Court Rule 17(a), appears to mitigate some of the harsher consequences under the South Carolina Rules of Civil Procedure for a failure to file a timely answer.  Therefore most family law attorneys treat default in family court as a non issue.  Perhaps we shouldn’t.

South Carolina Rule of Civil Procedure 12(a), directs that “[a] defendant shall serve his answer within 30 days after the service of the complaint upon him…”  Rule 55(a), SCRCP describes the procedure to be employed when an opposing party fails to serve a timely answer to a complaint or reply to a counterclaim:

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default upon the calendar (file book)

Rule 55(b), SCRCP then authorizes the court to enter a judgment of default.

Rule 17(a), SCFRC, limits the use of default as it allows that even a defendant who has failed to file an answer “may be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees.”  However this family court rule clearly allows for defaults. See, Rule 17(b), SCRFC (“Default. In domestic relations matters, the provisions of Rule 55, SCRCP, regarding orders of default shall be made in the final order issued by the family court.”)

So does it mean anything to be in default in family court?  Many attorneys believe not.  There are no reported decisions interpreting these portions of Rule 17, SCRFC.  However, in my limited experience, judges interpret this rule as allowing an in-default defendant to testify, but not call witnesses, and to defend claims for attorney’s fees, but not affirmatively seek attorney’s fees.

This becomes relevant when an in-default defendant retains counsel.  While I am loath to put a represented party in default, and uniformly grant opposing counsel the one-time thirty day extension to answer or reply that Rule 6(b), SCRCP authorizes, I have no qualms about putting a pro se defendant in default.  If that defendant hires counsel after I have filed and served an affidavit of default, I uniformly deny requests to let that defendant out of default unless opposing counsel convinces me there is good cause under Rule 55(c) or Rule 60(b), SCRCP, that might allow the family court to let the defendant out of default.

Despite the limitations that Rule 17(a), SCRFC, creates on defaults in family court, the ability to prevent a defendant from calling witnesses or seeking attorney’s fees is powerful enough that I routinely set my calendar to place a defendant in default if no answer has been served the business day after thirty days from service.  I encourage my fellow family law practitioners to be cognizant of the use of default in South Carolina family court.