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Unpublished Opinion No. 2004-UP-535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.”