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.

Yesterday two different attorneys asked me about accepting service on behalf of a client for rules to show cause.  While I will routinely accept service of pleadings (with my client’s permission, of course) I’ve determined it’s unsafe for an attorney to accept service of a rule to show cause on behalf of a client and no longer do so.  I no longer ask other attorneys to accept service of rules either.

My thinking changed after accepting service for a rule to show cause a few years ago.  My client was facing contempt for being behind on his child support.  Prior to my representing him he had served a year in jail for civil contempt for delinquent child support and he was unwilling to face further jail time.  So, a few days before the hearing, he left the state–permanently–and failed to appear for the rule hearing.

Meanwhile I show up at the hearing without my client there.   The language of a rule to show cause includes the command “IT IS ORDERED THAT YOU APPEAR BEFORE THE Family Court for _________ County …. and there to be prepared to show cause….”   While a summons for a complaint is signed by an attorney, the rule to show cause is an order issued by a judge.  Merely failing to show up for a rule to show cause that a party has been served with is a violation of a court order; in fact, unlike the contempt prosecuted in most rules to show cause, it’s considered direct contempt and the party can be sanctioned by the presiding judge immediately and without further hearing.

The situation at that rule hearing was extremely awkward.   The court issued a bench warrant for my client’s arrest–since he had failed to appear–yet I was the person who had accepted service on the rule.   While my client had provided written authorization–an email–for me to accept service, that email isn’t in the court file.  If he’s picked up on the bench warrant years hence, he might easily claim I had no authority to accept service on his behalf and the court won’t know otherwise.  Awkward.

I will no longer put myself  in a situation in which my client can be held in direct contempt of a court order when it’s my signature, not the client’s, on the acceptance of service.  Instead, I uniformly direct my clients to accept service of a rule to show cause.  If a client ever refused to accept service–it hasn’t happened yet–I would treat that as a significant warning sign that my client might be a flight risk and I would probably avoid representating  him or her on the rule.

Don’t put yourself in a situation in which your client fails to appear for a rule to show cause when it’s your signature of the acceptance of service.  Have the client accept service instead.

 

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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