Challenging improperly issued ex-parte support orders

In South Carolina most child support or alimony orders in which the support will be paid directly have a standard provision involving late payments.  This provision is so common I actually have a macro, “5 day,” to type the necessary language:

The Defendant shall pay this support directly to the Plaintiff.  If he is ever more than five days late making a payment, the Plaintiff may file an ex-parte affidavit and order with the Charleston County Family Court to have the Defendant pay this support through the court with costs to him.

Occasionally some angry parent or ex-spouse will file such an ex-parte affidavit and order when the payment wasn’t actually five days late.  The family court has attempted to fashion methods to challenge these (allegedly) improperly issued ex-parte orders but, if one remembers that there are special procedural rules regarding ex-parte temporary restraining orders, there is actually a very powerful remedy when such orders improperly issue.

SCRCP 65(b) covers the procedure for issuing ex-parte orders.  While it mainly applies to temporary restraining orders (and these ex-parte orders to have child support be paid through the court are neither temporary nor a restraint), there is no separate rule of procedure explaining the process of challenging the issuance of an ex-parte order.  SCRCP 65(b), allows:

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.

When a client is ordered on an ex-parte basis to pay child support through the court on an inaccurate claim of late payment, a motion to challenge the order on two day’s notice under SCRCP 65(b) can be used to provide a quick remedy to the injustice.

The motion one files to vacate these orders is a Motion for Relief From Judgment, brought pursuant to SCRCP 60(b).  Typically one will alleged fraud, mistake or excusable neglect as part of the motion.  A supporting affidavit needs to be attached and the motion needs to be brought before the judge who issued the ex-parte order.  If there is a factual dispute between the parties the motion needs to proceed via testimony so often a full hearing cannot be scheduled within two days.  However one can ask the court to stay or vacate the order to pay support through the court pending the full evidentiary hearing.

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  • I have always believed that the “five day provision” is an unconstitutional delegation of judicial authority as it authorizes a litigant to make a factual decision for the court. I refuse to include such a provision in orders that I prepare if there is any reasonable way to avoid it. I explain to adverse attorneys and my clients that I much prefer a rule to show cause to enforce payment of child support and to require payment throuigh the clerk of court as my client and I can recover attorney’s fees for the rule to show cause but not for the affidavit. I understand that I am most probably a minority of one.

    • Thomas:

      I assume you are a “minority of one” because the “five day” provision represents a compromise between the supported party who wants the certainty of getting support on time without having to issue a rule to show cause and the supporting party who wants to avoid the 5% “tax” that paying through the court represents. Part of the problem is that employers are required to do wage-withholding for support paid through the court but not required to do it (and rarely will do it) for support paid directly.

      If you don’t offer a “five day” provision what can you offer the supported party’s attorney that would make that party forgo payment through the court?

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