When Is a Family Court Final Order Not Final?

South Carolina Court of Appeals overturns a Non-Appealed Final Order

Most of the time once the Family Court in South Carolina issues an order if no one appeals the order, it becomes the law of the case and cannot be modified.  The only major exceptions, however, are those orders addressing child support, child custody, child visitation, and alimony orders.  These types of orders can always be revisited upon the showing of a substantial change of circumstances.  However, the Court of Appeals in South Carolina recently issued an order which now gives Family Court attorneys something to scratch their heads about.  In the case of Ashburn v. Rogers, the Court of Appeals did something that an appeals court usually does not do: it overturned a final order of paternity that was more than 15 years old.  The order made a finding that a man was the father of a child. Even though the man was offered a paternity test at the time, he waived the test and admitted he was the father.  Approximately, 15 years later the man had a DNA test was done that showed he was not the father of the child.  He requested that he be relieved of his future child support obligation. Even though he did not appeal the original order finding him to be the father of the child and requiring him to pay child support, the Court of Appeals ruled that it would be inequitable to require him to pay child support for a child that is not his although he admitted many years ago the child was his.

Although fairness probably played out in this case, it now becomes harder to advise clients whether an order is final or not. As lawyers, we used to be pretty confident in telling clients that an unappealed order could never be changed. This seems to no longer be true.  Arguably, Ashburn v. Rogers seems to say that the court can overturn orders that were never appealed if they are later determined to be unfair.  It will be interesting to see what other orders are overturned based upon a fairness argument.