S.C. Dep't of Soc. Services/Helen Fleisigs v. Fleisig

• Decision Date: 21 October 2004
• Docket Number: 2004-UP-535
• Parties: South Carolina Department of Social Services/Helen Fleisig, Plaintiffs, v. Richard Fleisig, Appellant. of whom Helen Fleisig is Respondent,
• Court: Court of Appeals of South Carolina

South Carolina Department of Social Services/Helen Fleisig, Plaintiffs, of whom Helen Fleisig is Respondent, v. Richard Fleisig, Appellant.

No. 2004-UP-535

Court of Appeals of South Carolina

October 21, 2004

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.

Submitted February 11, 2004

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

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....