Court of Appeals holds Rule 59(e) motion does not authorize family court to modify final order, sua sponte, in manner not requested by the moving party

Posted Wednesday, June 29th, 2011 by Gregory Forman
Filed under Alimony/Spousal Support, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The June 29, 2011 Court of Appeals opinion in Wannamaker v. Wannamaker, 395 S.C. 592, 719 S.E.2d 261 (Ct. App. 2011) (refiled August 11, 2011 with a slightly altered analysis of the equitable distribution issue) involved three issues, two of which were not novel.  The unnovel issues:

In a sixteen year marriage, where the supported spouse earns $30k per year and is working at her full capacity, and the supporting spouse earns $60k per year, and fault is not a factor, an award of permanent periodic alimony of $500.00 per month is proper.

The family court is not required to accept an expert’s opinion on the value of marital property.

The one novel issue stems from Wife’s post trial motion.  At the temporary hearing Wife wasn’t awarded any temporary alimony, though Husband was required to pay the first mortgage on the home where she resided and pay $50.00 per month toward’s Wife’s son’s drug abuse treatment.  After the family court issued a final order awarding her $500.00 per month in permanent periodic alimony, Wife filed a motion pursuant to Rule 59(e), SCRCP, requesting the family court reconsider its decision to not award her attorney’s fees and credit her the payments she made on the second mortgage.  At that hearing, the family court instead made the alimony award retroactive to the date of the temporary hearing.

On appeal Husband argued the family court lacked jurisdiction to award Wife relief in her Rule 59 motion that she had not requested.  The Court of Appeals agreed, holding:

The family court lacks the authority to alter or amend a judgment on its own initiative once the judgment is more than ten days old.  Here, the final decree of divorce was filed on August 7, 2008.  Wife filed a motion to alter or amend the judgment on August 20, 2008, and a hearing was held on September 3, 2008.  The order amending the final decree of divorce and awarding Wife retroactive alimony was filed approximately two months after the final decree of divorce on October 6, 2008.  Because the family court awarded Wife retroactive alimony on its own initiative more than ten days after the final decree of divorce, we find the family court erred in awarding Wife retroactive alimony.

Citation omitted.

Wannamaker stands for the proposition that once outside the ten day period after the final order is filed, the family court lacks jurisdiction to sua sponte modify that order.  Any modifications made to that final order pursuant to a Rule 59 motion need to be based upon relief requested within that motion.


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