What is an interlocutory appeal?
If you lose your case in the family court, or even if you lose part of your case, you may be able to appeal to the SC Court of Appeals or Supreme Court and ask them to reverse any legal errors made by the court.
But what if the court makes a ruling early on that effectively ends your case? Do you need to wait until you get a “final” judgment to file an appeal? If you wait, do you lose your right to appeal?
Below, we will cover the basics of interlocutory appeals in the family court in South Carolina, including:
An “interlocutory appeal” is when you file an appeal challenging a non-final order in your case. In most cases, the rule is you cannot appeal a non-final order.
For example, if you file a divorce action, and, at your temporary hearing, the court orders you to pay alimony to your spouse, you cannot immediately file an appeal challenging the temporary order. You must wait until the end of the case, and then file your appeal – the final order might be different than the temporary order, after all.
In some situations, however, you can file an immediate appeal. SC Code § 114-3-330 says that you can appeal an “intermediate judgment” that involves the merits of a case, or an order that “determines the action:”
The Supreme Court shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal:
1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such action, provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from;
(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action…
So, for example, a temporary order that “temporarily” decides issues like alimony, child custody, or child support does not address the merits, is not a final judgment, and cannot be immediately appealed.
On the other hand, a family court’s finding that a common law marriage exists, as in Carter v. Carter (discussed below), is immediately appealable because 1) it addresses the merits and 2) it effectively decides the case – if there is no common law marriage, there is no divorce, there is no division of property, and the issue has been decided.
That doesn’t mean that you are required to file an interlocutory appeal, though. Section 14-3-330(1) also says that, if you don’t file an interlocutory appeal, the appellate court will review any intermediate orders or decrees in the case that affect the final judgment:
…provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from…
In Carter v. Carter, the SC Court of Appeals held that, although the wife (not-wife, as it turns out) could have filed an interlocutory appeal of the family court’s order finding that there was a common law marriage, her failure to immediately appeal the order did not prevent her from arguing the issue on appeal after the final order was entered in her case:
Sammy maintains Malinda’s failure to immediately appeal the 2018 order divested this court of jurisdiction to hear the appeal. In Stone v. Thompson, (Stone I), the family court bifurcated the issues of common-law marriage from the divorce and equitable distribution action and found the parties were common-law married. 418 S.C. 599, 601–02, 795 S.E.2d 49, 50–51 (Ct. App. 2016), rev’d, 426 S.C. 291, 826 S.E.2d 868 (2019)… our supreme court found the order was immediately appealable under our general appealability statute, South Carolina Code Section 14-3-330(1), because it involved the merits of the causes of action.3 Stone II, 426 S.C. at 292–93, 826 S.E.2d at 868–69. The court in Stone, however, did not mandate that an order granting a common-law divorce must be immediately appealed. “Some ‘interlocutory’ orders are immediately appealable because they affect the merits or a substantial right, but the governing statute does not require an immediate appeal.
In Carter, the Court of Appeals reversed the family court’s finding of a common law marriage and, since there was no marriage, the Court also reversed the family court’s final order for equitable distribution and attorney’s fees.
But wait, didn’t the SC Supreme Court abolish common law marriage in our state?
They did, but only for common law marriages that were entered into after July 24, 2019, the date of the SC Supreme Court’s opinion in Stone v. Thompson.
There will still be litigation over common law marriages for years to come, since any common law marriages entered before July 24, 2019, are still valid.
If you are considering separation or divorce, and you believe you can establish a common law marriage that was entered into before July 24, 2019, call your SC family court attorney at Axelrod a