Appellate considerations stemming from res judicata consequences of domestic abuse or contempt findings

Posted Monday, March 30th, 2020 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

The doctrine of res judicata prevents the relitigation of issues previously decided between the same parties. The doctrine requires three essential elements: (1) the judgment must be final, valid and on the merits; (2) the parties in the subsequent action must be identical to those in the first; and (3) the second action must involve matter properly included in the first action.

Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 437 S.E.2d 130, 131 (Ct.App. 1993).

Due to this doctrine, there can be certain final orders issued prior to a custody or divorce trial that might not merit appealing but for their collateral consequences.

Contempt issues are often litigated prior to custody or divorce trials through rules to show cause. Domestic abuse allegations are often litigated prior to custody or divorce trials through protection from domestic abuse petitions. Contempt orders are always treated as adjudicative. Thus any factual and legal findings in these orders will be binding on the parties in a subsequent custody or divorce trial. While domestic abuse proceedings brought on an emergency basis are not adjudicative [See Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008)], those brought on a non-emergency basis are.

Adverse factual findings in contempt and domestic abuse proceedings can have serious ramifications at a subsequent custody or divorce trial. A finding or lack of finding of domestic abuse is binding on the trial court, not only on a physical cruelty ground for divorce, but also on child custody. S.C. Code § 63-15-240(B)(15) lists as one factor in determining child custody, “whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child.” A finding of contempt is also a listed factor on child custody: “the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders.” S.C. Code § 63-15-240(B)(6).

That contempt and domestic abuse proceedings may have serious collateral consequences for subsequent custody or divorce trials means that some final orders that might not otherwise merit an appeal become worth appealing to avoid or overturn the adverse factual finding(s). In deciding whether to appeal domestic abuse or contempt orders, one should consider the ramifications that the findings in such orders may have in subsequent custody or divorce proceedings.

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