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2004-UP-535 - South Carolina Department of Social Services v. Fleisig

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Social Services/Helen Fleisig, Plaintiffs,

of whom Helen Fleisig is Respondent,

v.

Richard Fleisig, Appellant.


Appeal From Beaufort County
Robert S. Armstrong, Family Court Judge


Unpublished Opinion No. 2004-UP-535
Submitted February 11, 2004 – Filed October 21, 2004


REVERSED


James H. Moss, of Beaufort, for Appellant.

Ralph E. Tupper, of Beaufort, for Respondent.

PER CURIAM:  Richard Fleisig (Husband) appeals a ruling of the family court ordering him to pay $57,600 in unpaid alimony to Helen Fleisig (Wife).  We reverse. [1]

BACKGROUND

Husband and Wife married in New Jersey in 1963 and were granted a divorce in South Carolina in 1990.  The family court granted Wife child support and $400 per month rehabilitative alimony for a period of sixty months.  Wife appealed, and this court modified the alimony to permanent periodic payments of $600 per month.  Fleisig v. Fleisig, 93-UP-0061 (S.C. Ct. App. Mar. 8, 1993). 

According to Wife’s testimony, Husband moved around a lot after the divorce, never paid the ordered alimony, and later quit paying the child support.  Husband claims no notice or knowledge of this court’s opinion modifying his alimony obligation, but asserts he timely paid all of the rehabilitative alimony ordered by the family court.  

Shortly after this court’s opinion, Wife moved to her family home in Mississippi.  She was diagnosed with cancer in 1997 and spent a large portion of the next three years hospitalized and in a physically and financially disadvantaged condition.  Nevertheless, Wife claimed that before, during, and after this ordeal, efforts were made to secure payment of the alimony and child support.  She contacted several attorneys, one of whom agreed to take her case only to later refuse it. [2]   She contacted legal aid and the police several times in both South Carolina and Mississippi.  When Wife learned Husband was residing in Atlanta, she contacted the courthouse there only to learn he had moved to New Jersey.  By this point, her illness and financial situation began to hinder her efforts.  At no time was Husband contacted or any claim filed in relation to the non-payment of alimony. 

In 1999, the South Carolina Department of Social Services (SCDSS), acting on behalf of Wife, sought a rule to show cause resulting in the issuance of a bench warrant for Husband’s arrest for a support arrearage of $19,364.  However, pursuant to a 1995 order, SCDSS asserted and the court held the child was emancipated and Husband was $7,107 in arrears on child support at the time of emancipation.  In October 2001, Husband paid this amount in full to the New Jersey family court.  The money eventually went to SCDSS and some payments were made to Wife.  Neither the New Jersey court nor Wife ever communicated to the issuing South Carolina court that the amount had been satisfied.  In June 2002, Wife learned Husband was in Beaufort visiting their son.  She contacted the police and Husband was arrested on the bench warrant issued for the child support arrearage.  He was incarcerated for nine days before being granted a hearing on the matter. 

At the hearing, Husband submitted evidence he had paid his child support arrearage, obviously believing child support was the subject of the action.  The court quickly acknowledged the child support had been paid and was no longer at issue.  Wife, however, wanted to proceed on a claim for unpaid alimony, expressing her fear that Husband would never again appear in South Carolina.  She claimed the contempt order (entered to support the original bench warrant) contained language broad enough to cover the alimony as well as child support. [3]   Husband contended the case should be dismissed and he should be served a separate summons and complaint on the issue of alimony.  Attempting to balance the due process concerns of Husband and the significant travel burdens on Wife, the court allowed Wife to testify on the non-payment of the alimony at this hearing.  The court then gave Husband official personal notice of the suit and granted him ten days to respond in person or by affidavit.  Husband submitted an affidavit.

In its final order, the court found Husband’s claim that he did not receive notice of this court’s unpublished opinion lacking in credibility and awarded Wife $57,600 in unpaid alimony (the total accrued less the $24,000 Husband claimed to have paid).  Husband appeals on the ground that this procedure violated certain constitutional rights.

DISCUSSION

Husband claims the procedure followed by the family court constitutes a violation of his constitutional right to procedural due process.  We agree.

The Due Process Clause requires “notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Murdock v. Murdock, 338 S.C. 322, 334, 526 S.E.2d 241, 248 (Ct. App. 1999).  Although procedural due process is a flexible doctrine, it mandates that a litigant be placed on notice of the issues the court is to consider.  Murdock, 338 S.C. at 333, 526 S.E.2d at 248.  The fundamental purpose of pleadings is to fulfill this requirement.  See South Carolina Nat’l Bank v. Joyner, 289 S.C. 382, 387, 346 S.E.2d 329, 332 (Ct. App. 1986) (“It is elementary that the principal purpose of pleadings is to inform the pleader’s adversary of legal and factual positions which he will be required to meet on trial.”).

Here, Husband was arrested on a bench warrant issued pursuant to a civil contempt order.  The order was issued following a rule to show cause brought on Wife’s behalf by SCDSS.  Both the order and the bench warrant list SCDSS as a plaintiff.  SCDSS, though granted authority to pursue unpaid child support by way of a limited power of attorney, has no authority to pursue unpaid alimony.  These pleadings were wholly insufficient to give Husband notice he would be required to address the issue of unpaid alimony at the hearing.  The court even acknowledged Husband “had reason to believe what he was here today to defend on was on child support.” 

Wife argued the language “failure to pay as ordered” contained in the civil contempt order broadly covered any support amount Husband might have owed.  We disagree.  The family court is limited by the scope of due process, and the rule that its pleadings are to be liberally construed may not be stretched so as to permit the court to award relief not contemplated by the pleadings.  Henry v. Henry, 296 S.C. 285, 287, 372 S.E.2d 104, 106 (Ct. App. 1988); see also Murdock, 338 S.C. at 334, 526 S.E.2d at 248.  The inclusion of SCDSS as a party clearly indicated the action concerned only unpaid child support.  Wife could have easily prepared a summons, complaint, and rule to show cause for unpaid alimony and served Husband while he was in the Beaufort County jail.

We also disagree with the contention that the court’s grant of ten days to Husband to respond via affidavit or appearance cured this due process violation.  A fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.  Blanton v. Stathos, 351 S.C. 534, 542, 570 S.E.2d 565, 569 (Ct. App. 2002).  Allowing Wife to proceed with her testimony as to unpaid alimony at the child support hearing deprived Husband the opportunity to participate in discovery, prepare adequate cross-examination, file relevant financial declarations, and call his own witnesses.  We fail to see how an extension of time to respond cured these flaws and made Husband’s deficient opportunity to be heard any more meaningful in time or manner.  To quote the family court judge, you “cannot let convenience get in the way of due process.”  Unfortunately, that is exactly what happened in this case.

Absent due notice, a court lacks jurisdiction to adjudicate the party’s personal rights.  Blanton, 351 S.C. at 542, 570 S.E.2d at 569.  A judgment by a court without jurisdiction over both the parties and the subject matter is a nullity and must be so treated by the courts.  Id. 

For the foregoing reasons, the order of the family court is

REVERSED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.


[1] We decide this case without oral argument pursuant to the parties’ request and Rule 215, SCACR.

[2] After her appeal, she chose to dismiss trial and appellate counsel because of issues surrounding the handling of her initial case and general mistrust.

[3] The order stated Husband owed a “support arrearage” of $19,364 “for failure to pay as ordered.”