South Carolina General Assembly
116th Session, 2005-2006

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Bill 1050

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COMMITTEE REPORT

February 15, 2006

S. 1050

Introduced by Senators Ritchie, Ford, Mescher, Knotts, Bryant, Setzler and Campsen

S. Printed 2/15/06--S.    [SEC 2/16/06 2:15 PM]

Read the first time January 17, 2006.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (S. 1050) to amend the Code of Laws of South Carolina, 1976, so as to enact the "Family Court Reform Act of 2006", by amending Section 15-36-10, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, pages 4 and 5, by striking Section 20-3-130(A) in its entirety, beginning on line 35 of page 4 and ending on line 3 of page 5, and inserting therein the following:

/    "Section 20-3-130.    (A)    In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded to a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement, or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.    /

Amend the bill further, as and if amended, pages 7 and 8, by striking Section 20-3-130(C)(10) in its entirety, beginning on line 25, page 7, and inserting therein the following:

/    (10)    marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of: (a) the formal signing of a written property or marital settlement agreement, or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;        /

Amend the bill further, as and if amended, page 10, by striking Section 20-6-30 in its entirety, lines 2-8, and inserting:

/    Section 20-6-30.    Any person appointed to serve as a hearing officer must be a retired judge who is still an active member of the South Carolina Bar but not actively engaged in the practice of law. For purposes of this section, the term 'retired judge' does include probate judges, magistrates, municipal court judges, recorders, or any other summary court judges. Hearing officers must annually receive a minimum of six hours of continuing legal education on family court issues and shall be subject to additional standards as the South Carolina Supreme Court deems appropriate.            /

Amend the bill further, as and if amended, by striking SECTION 8, beginning on page 12 and ending on page 14, in its entirety.

Amend the bill further, as and if amended, page 16, by striking Section 20-8-40(A) in its entirety, lines 8-24, and inserting:

/    Section 20-8-40.    (A)    All issues in domestic relations actions are subject to court-ordered mediation except where exempted. The following cases must be automatically exempted from mediation:

(1)    contempt actions;

(2)    child abuse and neglect proceedings;

(3)    DSS Adult Protective Services cases;

(4)    any case where there has been a finding by a court of competent jurisdiction within one year of the date of filing the action of spousal abuse or child abuse or neglect by one of the parties;

(5)    juvenile proceedings;

(6)    uncontested issues;

(7)    actions where there is an agreement between the parties for voluntary mediation, subject to court approval; or

(8)    the entry of a divorce or separate maintenance decree.

Certification that an action is exempt from court-ordered mediation shall be on a form approved by the Supreme Court.

/

Amend the bill further, as and if amended, page 16, by striking line 42 and inserting the following:

/    the filing of the action, unless, in the court's discretion, the mediation conference should commence at an earlier date, and concluded no later than one hundred            /

Renumber sections to conform.

Amend title to conform.

JAMES H. RITCHIE, JR. for Committee.

            

STATEMENT OF ESTIMATED FISCAL IMPACT

ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES:

Minimal (Some additional costs expected but can be absorbed)

ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER FUND EXPENDITURES:

$0 (No additional expenditures or savings are expected)

EXPLANATION OF IMPACT:

Judicial Department:

The department indicates this bill would have a minimal fiscal impact on the General Fund of the State, which the agency can absorb at the current level of funding.

Department of Social Services:

The department indicates this bill would have no impact on the General Fund of the State or federal and/or other funds.

Approved By:

Don Addy

Office of State Budget

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "FAMILY COURT REFORM ACT OF 2006", BY AMENDING SECTION 15-36-10, AS AMENDED, RELATING TO LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, SO AS TO CLARIFY THAT AN ACTION IN FAMILY COURT IS SUBJECT TO THE SOUTH CAROLINA FRIVOLOUS CIVIL PROCEEDINGS SANCTIONS ACT AND MANDATE SANCTIONS FOR MULTIPLE FINDINGS OF FRIVOLOUS SUITS; TO AMEND SECTION 20-3-130, RELATING TO THE AWARD OF ALIMONY AND OTHER ALLOWANCES IN DIVORCE CASES, SO AS TO ELIMINATE ADULTERY AS A PROHIBITION TO AN AWARD OF ALIMONY, TO CREATE A CATEGORY OF "LIMITED ALIMONY", TO CREATE A REBUTTABLE PRESUMPTION OF FINITE ALIMONY FOR SHORT-TERM MARRIAGES AND DEFINE SHORT-TERM MARRIAGES, TO MODIFY THE TIME PERIOD FOR MARITAL MISCONDUCT AS AN ALIMONY FACTOR TO THE DATE OF FILING AN ACTION FOR DIVORCE OR SEPARATE SUPPORT AND MAINTENANCE AND RELATING TO THE PAYMENT OF ALIMONY AND SEPARATE MAINTENANCE AND SUPPORT IN DIVORCE PROCEEDINGS, TO REQUIRE THAT ALL PAYMENTS MADE BY THE PAYOR MUST BE MADE THROUGH THE CLERK OF COURT UNLESS THE PAYOR SPOUSE DEMONSTRATES THAT HE WILL NOT DEFAULT ON THE OBLIGATION OR PROVIDE ADEQUATE SECURITY FOR THE PAYMENT OF THE SUPPORT, AND TO REQUIRE THAT IF THE PAYOR SPOUSE IS EVER TEN DAYS OR MORE LATE IN PAYING HIS OBLIGATION, THEN, UPON THE FILING OF AN AFFIDAVIT BY THE PAYEE SPOUSE, ALL FUTURE PAYMENTS, ALONG WITH A SERVICE FEE, MUST BE MADE THROUGH THE CLERK OF COURT; TO AMEND TITLE 20, RELATING TO THE CHILDREN'S CODE, BY ADDING CHAPTER 6 ENTITLED THE "SOUTH CAROLINA FAMILY COURT HEARING OFFICER ACT", SO AS TO ESTABLISH FAMILY COURT HEARING OFFICERS; TO AMEND CHAPTER 7 OF TITLE 20, RELATING TO THE PAYMENT OF CHILD SUPPORT, BY ADDING SECTION 20-7-93, SO AS TO REQUIRE THAT IN CHILD SUPPORT ORDERS, THE PAYMENT MUST BE MADE THROUGH THE CLERK OF COURT UNLESS THE PAYOR SPOUSE DEMONSTRATES THAT HE WILL NOT DEFAULT ON THE OBLIGATION OR PROVIDES ADEQUATE SECURITY FOR THE PAYMENT OF THE SUPPORT; TO AMEND SECTION 20-7-420, RELATING TO THE JURISDICTION OF FAMILY COURT IN DOMESTIC MATTERS, SO AS TO ADD A SUBSECTION CONCERNING FAMILY COURT JURISDICTION IN FRIVOLOUS MATTERS AND TO MANDATE THAT JUDGES SANCTION PARTIES WITH TWO OR MORE PRIOR DETERMINATIONS OF FILING A FRIVOLOUS CLAIM OR MOTION; TO AMEND SECTION 20-7-472, RELATING TO THE EQUITABLE APPORTIONMENT AND CRITERIA OF MARITAL PROPERTY, SO AS TO MODIFY THE TIME PERIOD FOR MARITAL MISCONDUCT AS AN EQUITABLE DISTRIBUTION FACTOR TO THE DATE OF FILING AN ACTION FOR DIVORCE OR SEPARATE SUPPORT AND MAINTENANCE; TO AMEND SECTION 20-7-570, RELATING TO A FALSE REPORT OF SUSPECTED CHILD ABUSE OR NEGLECT MADE MALICIOUSLY OR IN BAD FAITH, SO AS TO MANDATE THAT JUDGES SANCTION THE REPORTING PARTY UPON A SECOND OR SUBSEQUENT DETERMINATION OF MAKING A FALSE REPORT MALICIOUSLY OR IN BAD FAITH; AND TO AMEND TITLE 20, BY ADDING CHAPTER 8 ENTITLED THE "SOUTH CAROLINA FAMILY LAW MEDIATION ACT", SO AS TO MANDATE MEDIATION IN ALL DOMESTIC RELATIONS ACTIONS IN FAMILY COURT, TO PROVIDE FOR EXCEPTIONS WHERE MEDIATION IS NOT REQUIRED AND EXCEPTIONAL CIRCUMSTANCES WHERE MEDIATION MAY BE WAIVED, TO PROVIDE A TIMEFRAME WITHIN WHICH MEDIATION MUST BE ACCOMPLISHED, AND TO PROVIDE THAT NO FINAL HEARING IN A DOMESTIC RELATIONS ACTION SHALL BE SCHEDULED UNTIL MEDIATION IS COMPLETED IN THE MATTER, UNLESS IT IS EXEMPTED OR EXCEPTED FROM MEDIATION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as the "Family Court Reform Act of 2006".

SECTION    2.    Section 15-36-10(A) of the 1976 Code, as last amended by Act 27 of 2005, is amended to read:

"Section 15-36-10.    (A)(1)    A pleading filed in a civil, family, or administrative action on behalf of a party who is represented by an attorney must be signed by at least one attorney of record who is an active member of the South Carolina Bar or who is admitted to practice in the courts of this State and must include the address and telephone number of the attorney signing the document.

(2)    A document filed in a civil, family, or administrative action by a party who is not represented by an attorney must be signed by the party and must include the address and telephone number of the party.

(3)    The signature of an attorney or a pro se litigant constitutes a certificate to the court that:

(a)    the person has read the document;

(b)    a reasonable attorney in the same circumstances would believe that under the facts his claim or defense may be warranted under the existing law or, if his claim or defense is not warranted under the existing law, a good faith argument exists for the extension, modification, or reversal of existing law;

(c)    a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of a civil cause is not intended merely to harass or injure the other party; and

(d)    a reasonable attorney in the same circumstances would believe his claim or defense is not frivolous, interposed for delay, or brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.

(4)    An attorney or pro se litigant participating in a civil, family, or administrative action or defense may be sanctioned for:

(a)    filing a frivolous pleading, motion, or document if:

( i)    the person has not read the frivolous pleading, motion, or document;

(ii)    a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;

(iii)    a reasonable attorney presented with the same circumstances would believe that the procurement, initiation, continuation, or defense of a civil cause was intended merely to harass or injure the other party; or

(iv)    a reasonable attorney presented with the same circumstances would believe the pleading, motion, or document is frivolous, interposed for merely delay, or merely brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based;

(b)    making frivolous arguments a reasonable attorney would believe were not reasonably supported by the facts; or

(c)    making frivolous arguments that a reasonable attorney would believe were not warranted under the existing law or if there is no good faith argument that exists for the extension, modification, or reversal of existing law."

SECTION    3.    Section 15-36-10(I) of the 1976 Code is amended to read:

"(I)    This act shall not alter the South Carolina Rules of Civil Procedure, or the South Carolina Appellate Court Rules, or the South Carolina Family Court Rules."

SECTION    4.    Section 20-3-130 of the 1976 Code is amended to read:

"Section 20-3-130.    (A)    In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

(B)    Alimony and separate maintenance and support awards may be granted pendente lite and permanently in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to:

(1)    periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to order the payment of alimony on an ongoing basis where it is desirable to make a current determination and requirement for the ongoing support of a spouse to be reviewed and revised as circumstances may dictate in the future;

(2)    lump-sum alimony in a finite total sum to be paid in one installment, or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award be of a finite and nonmodifiable nature;

(3)    rehabilitative alimony in a finite sum to be paid in one installment or periodically, terminable upon the remarriage or continued cohabitation of the supported spouse, the death of either spouse (except as secured in subsection (D)) or the occurrence of a specific event to occur in the future, or modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to provide for the rehabilitation of the supported spouse, but to provide modifiable ending dates coinciding with events considered appropriate by the court such as the completion of job training or education and the like, and to require rehabilitative efforts by the supported spouse;

(4)    reimbursement alimony to be paid in a finite sum, to be paid in one installment or periodically, terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)) but not terminable or modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it necessary and desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage;

(5)    limited alimony to be paid periodically for a finite period of time, terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)), and terminable or modifiable based upon changed circumstances occurring in the future. The purpose of this type of support may include, but is not limited to, circumstances where the court finds that periodic or rehabilitative alimony is not appropriate, such as in the case of short-term marriages, as defined in subsection (I) of this section, where other circumstances are not present to award alimony for a term longer than the length of the marriage;

(5)(6)    separate maintenance and support to be paid periodically, but terminating upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where a divorce is not sought, but it is necessary to provide for support of the supported spouse by way of separate maintenance and support when the parties are living separate and apart; and

(6)(7)    such other form of spousal support, under terms and conditions as the court may consider just, as appropriate under the circumstances without limitation to grant more than one form of support.

For purposes of this subsection and unless otherwise agreed to in writing by the parties, 'continued cohabitation' means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

(C)    In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

(1)    the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;

(2)    the physical and emotional condition of each spouse;

(3)    the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;

(4)    the employment history and earning potential of each spouse;

(5)    the standard of living established during the marriage;

(6)    the current and reasonably anticipated earnings of both spouses;

(7)    the current and reasonably anticipated expenses and needs of both spouses;

(8)    the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

(9)    custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

(10)    marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties filing of an action for divorce or separate maintenance and support, unless it relates to pre-filing misconduct. The family court may bar or limit alimony or separate maintenance and support to be awarded a spouse who commits adultery before the filing of an action for divorce or separate maintenance and support if (a) such adultery materially affects or has affected the economic circumstances of the parties, or (b) such adultery has materially contributed to the breakup of the marriage, and such adultery has not been condoned, nor is subject to the defense of recrimination, collusion, or connivance;

(11)    the tax consequences to each party as a result of the particular form of support awarded;

(12)    the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

(13)    such other factors the court considers relevant.

There is a rebuttable presumption that in the event the court awards alimony in cases involving short-term marriages, as defined in subsection (I) of this section, then a form of temporary alimony will be awarded.

(D)    In making an award of alimony or separate maintenance and support, the court may make provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds and may require a spouse, with due consideration of the cost of premiums, insurance plans carried by the parties during marriage, insurability of the payor spouse, the probable economic condition of the supported spouse upon the death of the payor spouse, and any other factors the court may deem relevant, to carry and maintain life insurance so as to assure support of a spouse beyond the death of the payor spouse.

(E)    In making an award of alimony or separate maintenance and support, the court may order the direct payment to the supported spouse, or may require that the payments be made through the Family Court and allocate responsibility for the service fee in connection with the award. must order the payments be made through the clerk of court and allocate responsibility for the service fee in connection with the award to the payor, unless the payor spouse demonstrates to the satisfaction of the court that he will not default on his court ordered support obligation, or provides for security for the payment of the support in accordance with subsection (D) of this section. If the payor spouse is ever ten days or more late in paying his obligation, then, upon the filing of an affidavit with the family court by the supported spouse, all future payments by the payor spouse, and a service fee, must be made through the clerk of court. The court may require the payment of debts, obligations, and other matters on behalf of the supported spouse.

(F)    The court may elect and determine the intended tax effect of the alimony and separate maintenance and support as provided by the Internal Revenue Code and any corresponding state tax provisions. The family court may allocate the right to claim dependency exemptions pursuant to the Internal Revenue Code and under corresponding state tax provisions and to require the execution and delivery of all necessary documents and tax filings in connection with the exemption.

(G)    The family court may review and approve all agreements which bear on the issue of alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement where the parties are living separate and apart. The failure to seek a divorce, separate maintenance, or a legal separation does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. The parties may agree in writing if properly approved by the court to make the payment of alimony as set forth in items (1) through (6) of subsection (B) nonmodifiable and not subject to subsequent modification by the court.

(H)    The court, from time to time after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money incurred in maintaining an action for divorce from the bonds of matrimony, as well as in actions for separate maintenance and support, including sums for services rendered and costs incurred before the commencement of the proceeding and after entry of judgment, pendente lite and permanently.

(I)    A short-term marriage is a marriage of less than ten years as of the date of filing for an action for divorce or separate maintenance and support."

SECTION    5.    Title 20 of the 1976 Code is amended by adding:

"CHAPTER 6

South Carolina Family Court Hearing Officer Act

Section 20-6-10.    This act shall be cited as the 'South Carolina Family Court Hearing Officer Act'.

Section 20-6-20.    Family court hearing officers, herein referred to as hearing officer, shall be appointed by and serve on a voluntary basis at the pleasure of the Chief Justice of the South Carolina Supreme Court. Hearing officers shall be accountable to the Chief Justice and are subject to the Code of Judicial Conduct.

Section 20-6-30.    Any person appointed to serve as a hearing officer must be a member of the South Carolina Bar in good standing with a minimum of ten years experience in family court matters. Hearing officers must annually receive a minimum of six hours of continuing legal reduction on family court issues and shall be subject to additional standards as the South Carolina Supreme Court deems appropriate.

Section 20-6-40.    (A)    The following types of cases must be assigned to hearing officers:

(1)    rule to show cause hearings, including any private and agency child support actions when there are no other substantive matters at issue; and

(2)    uncontested domestic relations matters.

(B)    In addition to the types of cases listed in subsection (A), the Chief Justice must issue directives concerning the types of cases that may be assigned to hearing officers. Pursuant to the Chief Justice's directives and statutory authority, the Chief Administrative Judge of the circuit in which the hearing officer serves may refer specific cases by order to the hearing officer.

The types of cases that may be assigned include, but are not limited to:

(1)    motions hearings for temporary relief in domestic relations actions, with consent of the parties;

(2)    hearings in the following Department of Social Services (DSS) cases: child abuse and neglect cases, including probable cause, merits hearings pursuant to Sections 20-7-736 and 20-7-738, and review hearings, permanency planning for children in foster care, termination of parental rights, and adoption, and motions or other applications to the court in these cases;

(3)    hearings in DSS Adult Protective Services cases, including probable cause, merits, and motions; and

(4)    determinations of indigency.

(C)    The clerk of court shall maintain a family court hearing officer docket. The clerk of court must assign a date and time for each proceeding to be heard by a hearing officer. The clerk of court also must maintain a record of each proceeding in the same manner as prescribed for the family court. The party requesting a hearing must provide notice to all parties in the same manner as prescribed for the family court.

Section 20-6-50.    A hearing officer shall have the same authority as a family court judge in those cases assigned to him or her, subject to any limitations imposed by statute and the directives of the Chief Justice. A hearing officer's powers include, but are not limited to:

(1)    administer oaths;

(2)    preserve and enforce order during hearings;

(3)    hold persons in contempt of court and sanction them accordingly;

(4)    examine witnesses;

(5)    issue bench warrants for failure to appear;

(6)    issue orders and rulings on motions;

(7)    act as the finder of fact and law;

(8)    take minors and vulnerable adults into emergency protective custody;

(9)    issue temporary orders relating to equitable division of marital property, child support, custody, visitation, attorney's fees, discovery, and restraining orders as they relate to domestic relations actions;

(10)    require additional hearings for review of cases as necessary; and

(11)    appoint attorneys and guardians ad litem as appropriate and permitted by law.

Section 20-6-60.    No matter directly appealable to the Supreme Court shall be subject to referral to any hearing officer.

Section 20-6-70.    Proceedings shall be held in the county of appropriate venue unless the parties consent to conducting the proceedings in another county. The South Carolina Judicial Department shall maintain a list of qualified hearing officers for each county.

Section 20-6-80.    The orders and rulings issued by a hearing officer shall be considered final and where allowed, shall be appealed directly to the Court of Appeals, as provided by the South Carolina Appellate Court Rules.

Section 20-6-90.    Hearing officers shall not be barred from the private practice of law in family court. However, they shall not preside over any matter in which they have participated as a lawyer.

Section 20-6-100.    All applicable Rules of Family Court and Rules of Civil Procedure shall apply in all proceedings presided over by a hearing officer.

Section 20-6-110.    Hearing officers shall receive credit for court appointments as determined by the Supreme Court."

SECTION    6.    Chapter 7, Title 20 of the 1976 Code is amended by adding:

"Section 20-7-93.    (A)    For purposes of this chapter, in making an award of child support, either temporary or permanent, the court must order the payments be made through the clerk of court and allocate responsibility for the service fee in connection with the award to the payor, unless the person demonstrates to the satisfaction of the court that he will not default on his court ordered support obligation, or provides for security for the payment of the support in accordance with subsection (B). If the person is ever ten days or more late in paying his obligation, then, upon the filing of an affidavit with the family court by the person receiving the support for the child, all future payments by the person, and a service fee, must be made through the clerk of court.

(B)    In making an award of child support, the court may make provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds."

SECTION    7.    Section 20-7-420(A) of the 1976 Code is amended by adding an appropriately numbered subsection at the end to read:

"( )    To sanction a party who files a frivolous claim or motion under Title 20, pursuant to the standards set forth in Section 15-36-10. Upon the second or subsequent determination by the court that the requesting party has filed a frivolous claim or motion under Title 20 involving the same litigants, the court must impose sanctions on the requesting party as permitted by state law and the South Carolina Rules of Court."

SECTION    8.    Section 20-7-472 of the 1976 Code is amended to read:

"Section 20-7-472.    In a proceeding for divorce a vinculo matrimonii or separate support and maintenance, or in a proceeding for disposition of property following a prior decree of dissolution of a marriage by a court which lacked personal jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the property, and in other marital litigation between the parties, the court shall make a final equitable apportionment between the parties of the parties' marital property upon request by either party in the pleadings.

In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(1)    the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2)    marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties filing of an action for divorce or separate maintenance and support, unless it relates to pre-filing misconduct;

(3)    the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4)    the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5)    the health, both physical and emotional, of each spouse;

(6)    the need of each spouse or either spouse for additional training or education in order to achieve that spouses's spouse's income potential;

(7)    the nonmarital property of each spouse;

(8)    the existence or nonexistence of vested retirement benefits for each or either spouse;

(9)    whether separate maintenance or alimony has been awarded;

(10)    the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11)    the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12)    the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13)    liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14)    child custody arrangements and obligations at the time of the entry of the order; and

(15)    such other relevant factors as the trial court shall expressly enumerate in its order.

The court's order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal."

SECTION    9.    Section 20-7-570 of the 1976 Code is amended to read:

"Section 20-7-570.    (A)    If the family court determines pursuant to Section 20-7-695 that a person has made a report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567, the department may bring a civil action to recover the costs of the department's investigation and proceedings associated with the investigation, including attorney's fees. The department also is entitled to recover costs and attorney's fees incurred in the civil action authorized by this section. The decision of whether to bring a civil action pursuant to this section is in the sole discretion of the department.

(B)    If the family court determines pursuant to Section 20-7-695 that a person has made a false report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567, a person who was subject of the false report has a civil cause of action against the person who made the false report and is entitled to recover from the person who made the false report such relief as may be appropriate, including:

(1)    actual damages;

(2)    punitive damages; and

(3)    a reasonable attorney's fee and other litigation costs reasonably incurred.

(C)    If a civil lawsuit is filed pursuant to subsections (A) or (B) and the court finds that this is a second or subsequent:

(1) report of suspected child abuse or neglect made maliciously or in bad faith pursuant to Section 20-7-695; or

(2)    adjudication of guilt for making a false report pursuant to     Section 20-7-567;

then the court must grant appropriate relief as permitted by state law and the South Carolina Rules of Court."

SECTION    10.    Title 20 of the 1976 Code is amended by adding:

"CHAPTER 8

South Carolina Family Law Mediation Act

Section 20-8-10.    This act shall be cited as the 'South Carolina Family Law Mediation Act'.

Section 20-8-20.    The General Assembly finds and declares as follows:

(A)    that it is the public policy of this State that family law, divorce, and domestic relations cases including custody, visitation, child support, alimony, equitable apportionment, and fee issues shall be adjudicated quickly, fairly, and inexpensively;

(B)    that mediation is one of several methods of accomplishing this goal and that mediation should be encouraged in all domestic relations and family law matters; and

(C)    that the family courts of South Carolina should encourage and expedite such proceedings as should the South Carolina Bar, the medical community, counselors and mental health professionals, and financial experts.

Section 20-8-30.    For purposes of this chapter, the following definitions apply:

(A)    'Mediation' is an informal process in which a third-party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial in the family court.

(B)    A 'mediator' is a neutral person who acts to encourage and facilitate the resolution of pending family court actions and/or ongoing family disputes. The mediator has no authority to make decisions or to impose settlement.

Section 20-8-40.    (A)    All issues in domestic relations actions are subject to court-ordered mediation except where exempted. The following cases must be automatically exempted from mediation:

(1)    contempt actions;

(2)    child abuse and neglect proceedings;

(3)    any case where there has been a finding by a court of competent jurisdiction within one year of the date of filing the action of spousal abuse or child abuse or neglect by one of the parties;

(4)    juvenile proceedings;

(5)    uncontested issues;

(6)    actions where there is an agreement between the parties for voluntary mediation, subject to court approval; or

(7)    the entry of a divorce or separate maintenance decree.

Certification that an action is exempt from court-ordered mediation shall be on a form approved by the Supreme Court.

(B)    A party or the court may move to dispense with or defer mediation due to exceptional circumstances. Upon a showing of exceptional circumstances, and after a hearing, the Chief Judge for Administrative Purpose of the Family Court may grant the motion without a hearing and notify the parties or their attorneys of the ruling. Exceptional circumstances may relate to such factors as, but are not limited to:

(1)    geographic considerations;

(2)    incapacity of a party;

(3)    incompetence of a party;

(4)    cases where there has been a finding by a court of competent jurisdiction more than one year from the date of filing the action of spousal abuse or child abuse or neglect by one of the parties; or

(5)    substance abuse by one of the parties.

(C)    The court must order that the mediation conference or conferences shall be conducted no sooner than ninety days after the filing of the action, and concluded no later than one hundred eighty days after the filing of the action. A party may seek an extension of time to complete mediation, and the court, in its discretion, may extend the time to complete mediation in a written order.

(D)    The South Carolina Supreme Court shall establish the minimum number of hours that parties must participate in mediation.

(E)    No final hearing in any domestic relations action shall be scheduled or heard prior to the completion of mediation, unless the matter is exempt from mediation by operation of this chapter or by order of the Chief Judge for Administrative Purpose of the Family Court upon a showing of exceptional circumstances. A request for a final hearing must be accompanied by a copy of the written mediation report.

Section 20-8-50.    All mediation must be conducted in accordance with the procedures established in the South Carolina Family Court Alternative Dispute Resolution Rules in effect at the time for the State."

SECTION    11.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one of more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    12.    This act takes effect January 1, 2007, and applies to cases filed on after that date.

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This web page was last updated on Tuesday, June 23, 2009 at 2:07 P.M.