Court of Appeals holds order from bifurcated trial finding common law marriage is not immediately appealable

The issue of what family court orders are immediately appealable can be confusing.  Sometimes final orders need to be appealed immediately, even if that order does not end the case. For example, orders from contempt actions need to be appealed immediately even if the case is ongoing. Arnal v. Arnal, 363 S.C. 268, 609 S.E.2d 821, 837 (Ct.App. 2005). However, while family court temporary orders can be appealed, that appeal is held in abeyance pending the final outcome. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646, 648 (2012). Meanwhile, some family court orders, such as probable cause orders from DSS removal cases, are interlocutory and not immediately appealable. See e.g., Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358, 363 (1999).

The family court occasionally bifurcates final hearings because the outcome of one part of the case may determine the whole case. Last year I tried the first half of a bifurcated de facto custodian case. Had my clients (the alleged de facto custodians) lost that portion of the case, their claim for custody and visitation would have failed. Thus I did not oppose my opposing counsel’s request to bifurcate. After prevailing on the de facto custodian claim, we settled the remaining issues without trial.

Other family court cases often subject to bifurcation are approvals of agreements that one party is attempting to repudiate. The court will typically bifurcate that issue. If the agreement is approved it becomes the final order of the court and no trial is necessary. If the agreement is rejected, trial can be set on the contested issues.

Perhaps the most common bifurcated family court issue is marital dissolution cases in which one party alleges a common law marriage. If disputed, the court will often try that issue first. If it finds a common law marriage, it will litigate the marital dissolutions issues. If it doesn’t find a common law marriage there is no marriage to dissolve.

An order from a bifurcated case finding a common law marriage is a final order that does not end the case. As a final order, it is arguably immediately appealable–in fact it is arguable that it must be appealed immediately or the right to appeal is waived. However it is a final order that does not end the case. Thus, there is an argument that it is not immediately appealable.

The December 7, 2016 South Carolina Court of Appeals decision in Stone v. Thompson resolves that issue by finding such orders are not immediately appealable. In Stone, Husband filed for divorce, alleging a common law marriage, which Wife denied. At Wife’s request, the common law marriage issue was bifurcated. After trial, the family court issued an order finding common law marriage and awarding Husband fees. Wife appealed.

The Court of Appeals dismissed the appeal as interlocutory. It first found it was not a “final judgment” as contemplated by S.C. Code § 14-3-330(1) (which authorizes appeals of “final judgments”) and S.C. Code § 63-3-630(A) (which authorizes appeals of family court “judgments”). It cited Mid-State Distribs., Inc. v. Century Imps., Inc., 310 S.C. 330, 335, 426 S.E.2d 777, 780 (1993) for the proposition that an order is interlocutory when “some further act must be done by the court prior to the determination of the rights of the parties.” Here, because the family court still needed to resolve the divorce and equitable division, the Court of Appeals found the order was interlocutory.

Wife also argued that the appeal was ripe, pursuant to S.C. Code § 14-3-330(2) because the finding of common law marriage “affected her fundamental right to marriage and determines the mode of trial.” The Court of Appeals rejected this argument. It first noted the Supreme Court’s disfavor of piecemeal appeals on the ground of judicial efficiency. It further noted that every marital dissolution necessitated the establishment of the marriage, and allowing parties to appeal that finding would delay resolution. Finally it found the “mode of trial” was inapplicable as Husband’s civil action in common pleas court, brought under partnership and constructive trust theories, would have “radically different” “theories of recovery and considerations,” and was, therefore, a completely separate action.

Bifurcation can be a useful method of litigating claims where a decision on one portion of the case may resolve with finality other contested issues without requiring trial on those issues. Assuming Stone is not subsequently reversed it appears that any final order from the first portion of a bifurcated trial that anticipates resolution of future further issues is not immediately appealable.

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  • I disagree at least in part. Consider Bolding v. Bolding, 283 S.C. 501, 501, 323 S.E.2d 535, 535 (Ct. App. 1984). The complete opinion:

    “Derrill Jake Bolding appeals an order of the family court granting his wife Debra Crumpton Bolding a divorce, custody of the parties’ minor children, child support, attorney’s fees, and equitable division of the parties’ personal property. In its order, however, the family court reserved jurisdiction concerning the issue as to the equitable division of the parties’ real property.

    “Because the order appealed from is not final in that it does not “finally dispose of the whole subject matter in litigation” [4 Am.Jur.2d Appeal and Error § 53 at 575 (1962) ], we dismiss the husband’s appeal “for lack of appealability.” Id. § 50 at 573.

    “We might add that we find no merit to the husband’s assertion that the wife neglected to plead for a determination of her equitable interest in the real property. The wife in paragraph V of her petition expressly alleges that she is entitled to a “property settlement … based upon [the parties’] legal and equitable rights” and in her prayer for relief she asks for “a property settlement.” See Kirven v. Lawrence, 244 S.C. 572, 137 S.E.2d 764 (1964).

    “APPEAL DISMISSED.”

    I put Bolding to good use in Sexton v. Sexton, 308 S.C. 37, 39–40, 416 S.E.2d 649, 651 (Ct. App. 1992), rev’d, 310 S.C. 501, 427 S.E.2d 665 (1993):

    “The husband first asserts the trial judge erred in finding the October 1988 order was unappealed and res judicata. We agree. It is clear the October 1988 order either reserved for later determination or did not address several issues. The October 1988 order was not immediately appealable because it did not dispose of the whole subject matter in litigation. Bolding v. Bolding, 283 S.C. 501, 323 S.E.2d 535 (Ct.App.1984).”

    I have seen good lawyers make bad mistakes either by being unaware of Bolding or not understanding Bolding.

    • I’m unclear what you disagree with: the Stone opinion or my analysis of the Stone opinion.

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