South Carolina Supreme Court promulgates rules for rules to show cause in family court

On April 30, 2012, the South Carolina Supreme Court finally created the long-awaited, oft-deferred family court rules for the handling of rules to show cause.  Those rules are now set forth in South Carolina Rule of Family Court 14.

This new rule establishes formal procedures regarding rules to show cause.  Most of these changes merely codify existing case law or rules of civil procedure.  However, there are a few important changes or clarifications.

The supporting affidavit or verified petition must now “identify the court order, decree or judgment which the responding party has allegedly violated, the specific act(s) or omission(s) which constitute contempt, and the specific relief which the moving party is seeking.” Rule 14(c), SCRFC.  Due process would have appeared to have required such notice but previously such information was sometimes lacking in the affidavit or petition.

Rules to show cause now have to be served ten days before the hearing unless the court order issuing the rule specifies otherwise.  Rule 14(d), SCRFC.  Rules may now be served “by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.” Rule 14(e), SCRFC. While the language in this rule is unclear whether rules to show cause must be personally served or may be served on a household resident of suitable age and discretion as allowed under Rule 4(d)(1), SCRCP, the notes to Rule 14(e), SCRFC clarify this, stating, “the rule to show cause and supporting affidavit or verified petition are to be served by personal delivery upon the responding party.”

One provision deals with returns to rules to show cause: “If at the contempt proceeding the responding party intends to seek counsel fees and costs, or other appropriate relief permitted by law, then he shall serve a return to the rule to show cause prior to the commencement of the hearing, unless a Family Court judge requires a return to be served at some other time.” Rule 14(f), SCRFC. Left unresolved is how long prior to the commencement of the hearing such a return must be served.  Is service as the parties are walking into the courtroom sufficient?

Finally, the new rule makes reply testimony discretionary, whereas I would have previously considered it mandatory if requested.  See Rule 14(g), SCRFC, “If requested, the Court may allow reply testimony.”

While providing needed clarity in the procedure for family court rules to show cause, these new rules have obvious ambiguities that could have and should have been resolved before they issued.

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