File an answer at or before the temporary hearing

Posted Tuesday, January 20th, 2015 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

One of the odd procedural quirks of South Carolina family law is that one can have a hearing seeking temporary substantive relief as part of a family court lawsuit long before the time to file a response to that lawsuit has passed. That is because under Rule 21(a) of the Family Court Rules one can have a motion for temporary relief five days–actually, due to Rule 6(a) of the Rules of Civil Procedure, five business days–after the lawsuit is served but, under Rule 12(a) of the Rules of Civil Procedure, one has thirty days from the service of the complaint to file an answer to that complaint.

However, under Rule 41(a) of the Rules of Civil Procedure, until an answer has been served the Plaintiff has the absolute right to dismiss his or her complaint without prejudice. Thus, a Plaintiff can file a lawsuit, schedule a temporary hearing, obtain a bad result at the temporary hearing, and dismiss the complaint and, unless the Defendant has filed an answer prior to the dismissal request, there is nothing the Defendant can do about it. Further nothing prevents the Plaintiff from immediately filing the same or similar action and requesting another motion for temporary relief [Rule 41(a) would prevent the Plaintiff from doing this a third time].

Rule 15(a) of the Rules of Civil Procedure allows a party to amend his or her pleading once as a matter of right so long as he or she does so within thirty days of the other party filing a response to that pleading. Thus, one can file a quick answer prior to the temporary hearing and then file a more detailed answer, or an answer and counterclaim, later on.

Filing an answer prior to the temporary hearing prevents the Plaintiff from unilaterally dismissing the complaint if they do poorly at the temporary hearing. If one wants to protect the Defendant’s successful requests in defending these temporary motions one should routinely file answers at or prior to the temporary hearing.


9 thoughts on File an answer at or before the temporary hearing

  1. Greg,

    I would suggest that an Answer AND Counterclaim should be filed, or at least an Answer and a Return to Motion for Temporary Relief. Otherwise the Defendant has no pleading before the court that seeks affirmative relief at the Temporary Hearing.

    As for dismissal by Plaintiff following a bad result at the Temporary Hearing, Defendant would have “appeared” in the action by that point. After such appearance by Defendant’s counsel, a stipulation signed by “all parties who have appeared in the action” might be required by Rule 41(a) (1) (B), particularly if the Defendant has formally filed a Rule 8 Notice of Appearance. Moreover, I would think that the judge’s instruction to the Defendant’s counsel to draft the Temporary Order would prevent the unilateral dismissal without Defendant’s consent or without leave of Court.

  2. Never thought about using Rules of Civil Procedure this way, but I can see benefit of this strategy and would hate to be Defendant outsmarted by savvy Plaintiff. Have you successfully dismissed your client’s action after getting disappointing results at Temp Hrg & subsequently getting better results when obtaining second bite at the apple? One concern is 2nd judge finding in a court of equity such tactics may be clever but a waste of the court’s and parties’ time & money. Would like to know if others have successfully used the rules this way.

  3. I have (attempted) to use this procedure before, and was met with scorn by a judge and opposing counsel. I sought visitation with a young child for my client, a young unmarried father. At the temporary hearing, we received about 90% of what we requested, including unsupervised visitation (which was the biggest priority for my client). Unfortunately, within 24 hours of the hearing, I learned that my client had provided me with a falsified/forged drug test that I presented to the court at the hearing.

    After dealing with the ethical and damage control side of the issue, I filed a notice of dismissal under Rule 41(a), because my client didn’t want to deal with the much more onerous temporary order that was issued once the judge learned about the falsified drug test. Since the other party hadn’t filed an Answer or even a return to the motion for temporary relief.

    A few months went by, and I was contacted by the other attorney asking whether my client intended to pay his child support or face a Rule to Show Cause. I informed her there was no valid support order (nor even an open case) since I voluntarily dismissed the action. She was extremely angry, and we eventually had a conference call with a judge (since by that time a clerk’s Rule had issued). The judge had absolutely no interest in entertaining the notion that I could just voluntarily dismiss the action. In fact, that judge asked, “What you’re proposing is that your client could simply try his luck at a temporary hearing, and if the order wasn’t what he wanted, he could just dismiss the entire case and try again from scratch, so long as the other side hadn’t filed a responsive pleading…?” My response: “Yes, Your Honor, that’s exactly right.” The judge was having none of it and essentially suggested we enter into some kind of consent order dismissing the case.

  4. Ryan and Joe make very good points and validate my concerns. I just don’t see this move working out particularly well before most Family Court judges given the nature of our cases and the negative impact upon children and our clients’ lives on a technicality. Has anyone seen it used successfully?

    1. Megan says:

      I’ve seen a Plaintiff voluntarily dismiss during a recess when a lengthy temporary hearing was not going his way. The Defendant had not filed an Answer and Counterclaim, but had filed a Motion for Attorney’s Fees (since the Plaintiff had postured the case to be complex and require the hiring of dueling experts); prior to the recess, the judge had indicated some measure of inclination to grant the Defendant’s motion.

      The Plaintiff wasn’t in a position to re-file the case so it just went away.

  5. I don’t believe that the Defendant ‘appearing’ at the temporary hearing has any bearing on whether the Plaintiff can still dismiss. Rule 41(a) has an “either/or” scenario where the Plaintiff can voluntarily dismiss if the Defendant hasn’t SERVED (not filed) an Answer OR a stipulation signed by all parties who have appeared. So, by my reading, even if the other party refuses to consent, if they haven’t filed a responsive pleading then their consent isn’t required.

    As to whether a judge might not be too pleased to find out in a subsequent case that the Plaintiff used this tactic, that’s just something the client has to decide if it’s worth it relative to how “bad” his first temporary order is. Of course, if you represented the client in the subsequent case, you’d certainly object on relevance grounds to that being part of opposing counsel’s presentation to the judge, but whether or not the judge allows it, the bell is rung.

  6. Emily G. Johnston says:

    This happened to me last week, EXCEPT that I filed an Answer which was nominated a RETURN. The return denied the allegations of the Complaint, sought affirmative relief, including fees. At the Temporary Hearing, the judge found that Plaintiff had not proved a change in circumstances, appointed a GAL, and awarded fees to my client. Substantial ones. The pleadings rules are very specific. The Return denied the allegations of the Complaint; look at Rule 1. Look at Rule 8(f). The Plaintiff filed a Notice of Dismissal and believes the case has ended.

    Application of Rule 41 should not be applied in Family Court and the Rules need to be amended. Family Court is very different than Circuit Court. In Circuit Court there is rarely, if ever, an Order for Temporary Relief. There is rarely affirmative relief ordered before an Answer is filed. If so, as in a TRO, then the order expires on its own terms. One is not required to file a Notice of Appearance in Circuit Court. So, a lawyer, faced with a questionable temporary claim, at a temporary hearing, should always carry in her pocket a Notice of Dismissal when Court rules against her? I don’t think so. It is a blatant attempt to divest the Court of jurisdiction, to circumvent equity and justice, and to hurt opposing party, if not opposing counsel. If no return is made or relief awarded, that’s a different issue. But where a return is filed, seeking affirmative relief, denying the Complaint, and where the Court has issued a bench order ordering substantive relief, then the Return will be considered an Answer in my humble opinion because, as several of you point out, the Court will not stand for a bad loser divesting it of its power by a one-sided Notice of Dismissal. I will keep you posted.

  7. I think such a misguided dismissal after the court has ruled could rise to the level of contempt and warrant a grievance inasmuch as it seeks to thwart a lawful ruling from the court, by an officer of the court.

    Dismissal prior to the hearing would be one thing, but after the court has heard the matter and has issued an oral ruling on the record, I do not believe a party can strip the court of its authority over that order through the simple expedient of a unilateral stipulation of dismissal. The court might even be able to restore the case on its own motion and issue the order.

    And God help any attoney who does this if it results in the abduction or injury to a child or party where custody and injunctive relief were granted to the Defendant, but which ruling was thwarted by the unilateral conduct of Plaintiff’s counsel.

  8. Douglas says:

    How about if there is a motion signed by a judge for child support/visitation, supervised visitation, GAL appointed.

    How can someone overturn everything?
    How should someone file to show cause ?

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