How to help a family court litigant who failed to show up for trial

Posted Thursday, August 1st, 2013 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

A couple times each year I will get contacted by a family law litigant who failed to show up for trial and wants to appeal the resulting one-sided order.  However since an appeal can only address the record made at the final hearing–a hearing in which only one side presented testimony and evidence–there is rarely good grounds for appeal.

However if the litigant had good cause for not appearing at trial there is another solution to that client’s problems–a motion to vacate the final order brought pursuant to South Carolina Rule of Civil Procedure 60(b).  That rule provides a number of bases upon which one can reopen a case and obtain a new trial.  The four most typical bases for this motion when the litigant failed to appear for trial are: 1) the litigant was never properly served with the notice of final hearing; 2) the litigant had good cause for failing to show up at the final hearing; 3) there was not personal jurisdiction over the defendant; 4) the court lacked subject matter jurisdiction to hear the matter.

Rule 17(a), SCRFC sets the notice  requirement for a final hearing in family court:

In domestic relations matters, even though the defendant does not file an answer, notice of the time and date of the merits hearing shall be given to the defendant. If the defendant is not represented by counsel, notice as required by this rule shall be sufficient if mailed to the defendant at his last known address, by certified mail, return receipt requested.

Though this rule specifically applies to Defendants, I have seen the court apply it to Plaintiffs where the Defendant set the final hearing and the Plaintiff is pro se.  Further, in my experience, the court has never used the qualifier “even though the defendant does not file an answer” to limit this requirement to cases in which the Defendant did not answer.  Thus I have gotten cases reopened when a pro se Plaintiff was not sent notice of a final hearing via certified mail.  I have also gotten cases reopened when a Defendant who filed an answer was not sent notice of a final hearing via certified mail.  I have even gotten a case reopened when the notice was mailed certified mail, restricted delivery and my client never signed for it.

Case law indicates that compliance with Rule 17(a), SCRFC, is sufficient notice upon mailing even if the pro se litigant does not receive the notice until after the hearing. Schleicher v. Schleicher, 310 S.C. 275, 423 S.E.2d 147 (Ct.App. 1992).  However even if the opposing party complied with the Rule 17(a) notice requirement, one can still convince the court to vacate its final order and grant a new trial if one can show that one’s client failed to appear at trial due to “mistake, inadvertence, surprise, or excusable neglect.” SCRCP 60(b)(1)

Notwithstanding Schleicher, failure of a party to have actual notice of the final hearing can be a basis to reopen the case if that failure is excusable.  For example, I recently had a case in which notice of the final hearing was mailed to my client at his “last known address” but, for reasons that were not my client’s fault, that address was inaccurate and he never received actual notice of the hearing.  We were able to convince the court to reopen that case due to my client’s “excusable neglect.”  I have seen another case get reopened because the opposing party believed he was being represented by counsel and that counsel’s health problems led her to not filing a notice of representation or formally requesting a continuance.

If a party never appeared in the case prior to a final order being issued, that party can challenge the order and seek to have it vacated on a claim that the order is void due to lack of personal or subject matter jurisdiction.  Rule 60(b)(4), SCRCP.  Unlike a motion to vacate the order due to “mistake, inadvertence, surprise, or excusable neglect,” which must be brought not more than one year after the order was entered, a motion brought under this subsection has no time limitation other than that it “shall be made within a reasonable time.”

Typically such motions to vacate the final order are brought by out-of-state defendants who ignored the court proceedings because there was not personal jurisdiction over them.  They react when the South Carolina order begins having collateral consequences–such as a bench warrant being issued within South Carolina for non-compliance or a child support obligation showing up on their credit report.  So long as they did not appear in the initial case they are entitled to seek to vacate the order due to lack of personal jurisdiction, but they must bring this motion “within a reasonable time.”

Recently, in the case of Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013), I was able to get the court to vacate the final order under the authority of Rule 60(b)(4), SCRCP, because the Alabama divorce decree had priority and thus there was no subject matter jurisdiction for South Carolina to proceed.

A client who is the victim of a bad order because he or she failed to show up for trial will typically consult with an attorney about appealing that order.  However a motion for a new trial or to vacate that order, brought pursuant to Rule 60(b), SCRCP, is generally a better method of getting the client out from the obligations of that onerous order.

One thought on How to help a family court litigant who failed to show up for trial

  1. laurie says:

    my daughter had an intervention hearing. court at 9am, DSS ran over and had a “non emergency removal order” clocked in after 10am that day while we waited for court. They passed copies around. Is that appropriate serving and notice when they held the removal hearing after lunch?

    (I was listed as a defendant because my daughter lives with me. ) listed on my daughter’s report under history was an “unfounded” DSS report against me. Can DSS use an unfounded DSS complaint against me? not to mention in someone else’s case!

    This report contained mostly allegations I hadn’t even heard because when I was investigated it was less than (5) minutes because it was so clear the report was false that the worker shook his head and determined due to certain facts it was incapable of being true. (my granddaughter even denies saying these things or that they happened. regardless, what she said. what I read in the DSS report about me was shocking and humiliating to say the least. DSS used 1/3 of space under case history filled with making me look like someone I wouldn’t leave my a dog with. at the very end, it noted “case was unfounded” but that didnt matter. There’s NO coming back from that monster I was portrayed as. I was treated and talked to with discuss by DSS attorney even my own daughters attorney. I asked him a question and he yelled at me! said he represents my daughter and also told her not to listen to me. Furthermore, DDS attorney insisted my 12 yr granddaughter come to court (who already suffers from depression, anxiety) at one point she was sitting next to the paternal grandmother crying her eyes out want to leave. I asked DSS if I had time to take my grand daughter to the gas station for fresh air, drink and to just get her out for a bit. I was NOT allowed to take my grand daughter with me without supervision! I have no criminal record or any records against me period.

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