Asked why she does not practice in family court, my wife Lucy responded, “Because there are no rules and the cases never end.”
Several years ago, Erin and I defended a case in which the plaintiff’s complaint was dreadful. Many allegations were irrelevant. The complaint did not satisfy the UCCJEA requirements of S. C. Code Ann. § 63-15-346. The lawyer, confusing causes of action with relief, asserted nine so-called causes of action. The complaint jumbled the prayer with the allegations. Ten allegations did not allege facts sufficient to grant the relief sought. The complaint alleged conclusions of law rather than allegations of fact. Much of the complaint was definite and uncertain.
The lawyer refused our request to amend the complaint. We moved for amendment of the complaint to conform to the South Carolina Rules of Civil Procedure. The trial judge denied the motion and gave us a severe lecture for being petty and mean-spirited. We were ready to agree with Lucy there are no rules in family court.
A three-judge-panel of the court of appeals, Judges Huff, Thomas, and Konduros, in Peay v. Alexander, Unpublished Opinion No. 2019-UP-316, filed September 11, 2019, affirmed the proposition pleadings matter. “[W]e conclude Peay did not allege facts sufficient that, even if unrebutted, would establish a common law marriage….” Peay v. Alexander, Unpublished Opinion No. 2019-UP-316, filed September 11, 2019. Judges Huff, Thomas, and Konduros provide hope the court is raising the pleading bar for the trial bar.
This unpublished opinion will have a significant impact on the family court bench and bar if it signals an intent by at least three appellate judges to require fact pleadings complying with Rule 8, SCRCP. It requires the pleader to know the elements or facts necessary for the relief sought with sufficient knowledge of the facts to describe the dates, times, places, and circumstances supporting the relief sought. South Carolina family law practitioners must understand the difference between the notice pleading required by the Federal Rules of Civil Procedure and the fact pleading required by the South Carolina Rules of Civil Procedure. This is a wonderful return to the days of yesteryear when lawyers had to have a legal education and the ability to write in plain English.
I learned my lesson years ago. I alleged the defendant was inclined to commit adultery, had the opportunity to commit adultery, and engaged in acts of sexual intercourse with one other than the plaintiff after the marriage of the parties. Opposing counsel, to her credit, moved to make the complaint more definite and certain. I could not do it. I amended the complaint, striking the deficient allegations of adultery.
On of my favorite quotes from South Carolina case law is from Justice Joseph R. Moss. “It is also a familiar principle that what is essential to be proved is essential to be alleged.” Hunter v. Hyder, 236 S.C. 378, 384, 114 S.E.2d 493, 496 (1960). If you cannot allege it, you cannot prove it.
Question: Why defend on the merits if you can win on a motion?