Supreme Court Clarifies “Timely” Rule 59(e) Motions in Family Court

Supreme Court Clarifies “Timely” Rule 59(e) Motions in Family Court: What Swing v. Swing Means for Practitioners
W. Kenneth Swing v. Jill K. Swing, Opinion No. 28266 (S.C. March 12, 2025)

The South Carolina Supreme Court has issued an important clarification for family law practitioners regarding when Rule 59(e) motions stay the deadline for filing appeals. In Swing v. Swing, the Court reversed the Court of Appeals’ dismissal of an appeal and provided much-needed guidance on the meaning of “timely” in the context of post-trial motions.

Background and Procedural History
This Charleston County divorce case involved contested issues including a prenuptial agreement, equitable division, child custody and support, adultery grounds, and fees. After a five-day trial in March 2021, the family court issued a 61-page Final Order on June 8, 2021.

The procedural timeline that followed created the central issue in this appeal:
June 16, 2021: Jill filed a Rule 59(e) motion to alter or amend the Final Order
August 27, 2021: The family court granted Jill’s motion in part and issued an Amended Final Order
August 31, 2021: Kenneth received notice of the Amended Final Order
September 10, 2021: Kenneth filed his own Rule 59(e) motion
July 14, 2022: The family court denied Kenneth’s motion as “untimely” (after nine months of inaction)
July 21, 2022: Jill received written notice of the July 14 order
August 22, 2022: Jill served her notice of appeal

Kenneth then argued that Jill’s appeal was untimely because his September 10 motion was “untimely and successive,” meaning Jill should have appealed within 30 days of the August 27 Amended Final Order. The Court of Appeals agreed and dismissed Jill’s appeal for lack of jurisdiction.

The Supreme Court’s Holding
The Supreme Court reversed, holding that Kenneth’s September 10 motion was “timely” and therefore stayed the appeal deadline for all parties.
What “Timely” Means

The Court clarified that “timely” is simply a temporal term. As used in Rules 203(b)(1) and 59(f), it means only that the post-trial motion was served on the opposing parties not later than ten days from the date of receipt of written notice of the entry of the order the merits of which the motion purports to address.
Kenneth’s motion met this standard because:

It stated in its caption that he sought “Relief From August 27, 2021 Order”
He attached a copy of the August 27 order
He received written notice on August 31
He filed on September 10 (within the 10-day window)

Therefore, his motion was “timely” and stayed the appeal deadline.

The General Rule vs. The Exceptions
The Court emphasized that the analysis should start with the general rule, not the exceptions:
The Rule: A “timely” Rule 59(e) motion (filed within 10 days) stays the time for appeal for all parties under Rule 203(b)(1).
The Exceptions: Only two limited exceptions exist, both created judicially in Coward Hund and Quality Trailer:

A second written Rule 59(e) motion raising the same issues on which a ruling was already obtained through a previous written Rule 59(e) motion
A first written Rule 59(e) motion raising the same issues on which a ruling was already obtained in a previous written JNOV/new trial motion

The Court refused to extend these exceptions and stressed that Elam v. S.C. Department of Transportation limited them to these two specific situations.

Why This Case Didn’t Fit the Exceptions
The Court identified four critical reasons why Kenneth’s motion did not fall within the Coward Hund and Quality Trailer exceptions:

1. Family Court Cases Are Different
This was the first time the Court applied these rules to a comprehensive family court order resolving divorce, equitable division, and support issues. Unlike most circuit court decisions, family court orders are “necessarily interconnected”—changing one element may legitimately affect other elements not initially addressed. As Kenneth’s counsel aptly stated at oral argument, “when a family court amends an order, it’s much like an amoeba, if you touch one part of it, another part of it moves.”

2. Wrong Party Filing the Appeal
In every previous case where a Rule 59(e) motion was found procedurally improper, the party filing the appeal was also the party who filed the improper motion. Here, Jill was the appellant, but Kenneth filed the allegedly improper motion. This created an unfair trap where Jill had to guess whether Kenneth’s motion was procedurally proper or risk losing her appeal rights.

3. First Rule 59(e) Motion
Kenneth’s September 10 motion was his first Rule 59(e) motion. The Court emphasized the language from Elam: “a party usually is free to file an initial Rule 59(e) motion without unnecessary concern the motion will result in a subsequent appeal being dismissed.”

4. Not Identical to Prior Motion
Kenneth’s motion was not “identical” to Jill’s previous motion. While it eventually turned out that Kenneth’s motion didn’t actually address issues from the Amended Final Order, this wasn’t clear to anyone—including Kenneth, the family court, or Jil—until many months later.

The Trap for Practitioners
The Court recognized the impossible position this situation created for Jill’s counsel. After Kenneth filed his timely Rule 59(e) motion, Jill’s counsel faced a dilemma:

Option 1: File an appeal immediately, risking dismissal if the court later determined Kenneth’s motion was timely and stayed the appeal deadline
Option 2: Wait for the court to rule on Kenneth’s motion, risking dismissal if the court later determined the motion was untimely and didn’t stay the deadline

The Court quoted its language from Elam: “civil procedure and appellate rules should not be interpreted to create a trap for the unwary lawyer.”

Practical Guidance for Family Law Practitioners
1. When Filing Your Own Rule 59(e) Motion

Serve your motion within 10 days of receiving written notice of the order you’re challenging
Clearly identify in your motion caption and attachments which order you’re addressing
Don’t worry about whether your motion might be deemed “procedurally improper” based on technical arguments—if it’s your first motion and served within 10 days, it stays the appeal deadline

2. When Your Opponent Files a Rule 59(e) Motion

Assume it stays the appeal deadline if it was filed within 10 days of the relevant order
Don’t try to calculate whether it might be “successive” or “procedurally improper”—those exceptions are extremely narrow
The safest course is to wait for the court’s ruling on the motion before filing your appeal
Your appeal deadline runs from receipt of written notice of the order granting or denying that motion

3. Understanding the 10-Day Window

The 10-day period runs from receipt of written notice of the order, not from the order’s filing date
If you’re uncertain whether a motion was timely filed, check the date the moving party received written notice of the underlying order
Remember that Rule 263(a) extends deadlines that fall on weekends or holidays to the next business day

4. Family Court Cases Require Special Attention
The interconnected nature of family court orders means that:

A motion addressing one issue may legitimately affect other issues not initially mentioned
Courts should be more lenient in family court cases about what constitutes a proper Rule 59(e) motion
Simply because an issue wasn’t mentioned in an amended order doesn’t automatically foreclose raising questions about how the change affects related issues

5. Multiple Party Considerations
Remember that a Rule 59(e) motion filed by one party stays the appeal deadline for all parties. This is explicit in both Rule 203(b)(1) and Rule 59(f).

What the Court Didn’t Change
The Court made clear it was not overruling or modifying Coward Hund, Quality Trailer, Collins Music, or Elam. Those cases remain good law, but the Court:

Limited their exceptions to the two specific situations originally identified
Refused to extend those exceptions to other situations
Reaffirmed Elam’s emphasis on the “limits and rationale” of those exceptions

The Court also declined to create a third exception, noting that 21 years have passed since Elam and no case has yet warranted one.

Comparison to Camp v. Camp
The Court cited its own reversal in Camp v. Camp, 386 S.C. 571 (2010), where the Court of Appeals had held that a Rule 59(e) motion insufficient under Rule 7(b)(1) didn’t stay the appeal deadline. The Supreme Court reversed, finding the motion tolled the appeal deadline despite being procedurally improper.
This reinforces the Swing holding: procedural defects don’t automatically mean a motion fails to stay the appeal deadline. The focus is on whether the motion was served within 10 days of the relevant order.

Key Takeaway
The Supreme Court has simplified the analysis: If a Rule 59(e) motion is served within 10 days of receipt of written notice of the order it addresses, it is “timely” and stays the appeal deadline for all parties—period.

Don’t get caught up in arguments about whether a motion is “successive,” “procedurally improper,” or fits some other technical exception. Those exceptions are extremely narrow, rarely apply, and should not be your starting point for analysis.

For family law practitioners, this decision provides much-needed clarity and removes the guesswork from calculating appeal deadlines when post-trial motions are filed. When in doubt, wait for the court’s ruling on any Rule 59(e) motion before filing your appeal.

This analysis is based on W. Kenneth Swing v. Jill K. Swing, Opinion No. 28266 (S.C. March 12, 2025). The opinion was authored by Justice Few, with Chief Justice Kittredge and Justices James, Hill, and Verdin concurring.

By Suzanne Klok|2025-11-12T16:40:44+00:00June 6th, 2025|Family Law|Comments Off on Supreme Court Clarifies “Timely” Rule 59(e) Motions in Family Court

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Supreme Court Clarifies “Timely” Rule 59(e) Motions in Family Court: What Swing v. Swing Means for Practitioners
W. Kenneth Swing v. Jill K. Swing, Opinion No. 28266 (S.C. March 12, 2025)

The South Carolina Supreme Court has issued an important clarification for family law practitioners regarding when Rule 59(e) motions stay the deadline for filing appeals. In Swing v. Swing, the Court reversed the Court of Appeals’ dismissal of an appeal and provided much-needed guidance on the meaning of “timely” in the context of post-trial motions.

Background and Procedural History
This Charleston County divorce case involved contested issues including a prenuptial agreement, equitable division, child custody and support, adultery grounds, and fees. After a five-day trial in March 2021, the family court issued a 61-page Final Order on June 8, 2021.

The procedural timeline that followed created the central issue in this appeal:
June 16, 2021: Jill filed a Rule 59(e) motion to alter or amend the Final Order
August 27, 2021: The family court granted Jill’s motion in part and issued an Amended Final Order
August 31, 2021: Kenneth received notice of the Amended Final Order
September 10, 2021: Kenneth filed his own Rule 59(e) motion
July 14, 2022: The family court denied Kenneth’s motion as “untimely” (after nine months of inaction)
July 21, 2022: Jill received written notice of the July 14 order
August 22, 2022: Jill served her notice of appeal

Kenneth then argued that Jill’s appeal was untimely because his September 10 motion was “untimely and successive,” meaning Jill should have appealed within 30 days of the August 27 Amended Final Order. The Court of Appeals agreed and dismissed Jill’s appeal for lack of jurisdiction.

The Supreme Court’s Holding
The Supreme Court reversed, holding that Kenneth’s September 10 motion was “timely” and therefore stayed the appeal deadline for all parties.
What “Timely” Means

The Court clarified that “timely” is simply a temporal term. As used in Rules 203(b)(1) and 59(f), it means only that the post-trial motion was served on the opposing parties not later than ten days from the date of receipt of written notice of the entry of the order the merits of which the motion purports to address.
Kenneth’s motion met this standard because:

It stated in its caption that he sought “Relief From August 27, 2021 Order”
He attached a copy of the August 27 order
He received written notice on August 31
He filed on September 10 (within the 10-day window)

Therefore, his motion was “timely” and stayed the appeal deadline.

The General Rule vs. The Exceptions
The Court emphasized that the analysis should start with the general rule, not the exceptions:
The Rule: A “timely” Rule 59(e) motion (filed within 10 days) stays the time for appeal for all parties under Rule 203(b)(1).
The Exceptions: Only two limited exceptions exist, both created judicially in Coward Hund and Quality Trailer:

A second written Rule 59(e) motion raising the same issues on which a ruling was already obtained through a previous written Rule 59(e) motion
A first written Rule 59(e) motion raising the same issues on which a ruling was already obtained in a previous written JNOV/new trial motion

The Court refused to extend these exceptions and stressed that Elam v. S.C. Department of Transportation limited them to these two specific situations.

Why This Case Didn’t Fit the Exceptions
The Court identified four critical reasons why Kenneth’s motion did not fall within the Coward Hund and Quality Trailer exceptions:

1. Family Court Cases Are Different
This was the first time the Court applied these rules to a comprehensive family court order resolving divorce, equitable division, and support issues. Unlike most circuit court decisions, family court orders are “necessarily interconnected”—changing one element may legitimately affect other elements not initially addressed. As Kenneth’s counsel aptly stated at oral argument, “when a family court amends an order, it’s much like an amoeba, if you touch one part of it, another part of it moves.”

2. Wrong Party Filing the Appeal
In every previous case where a Rule 59(e) motion was found procedurally improper, the party filing the appeal was also the party who filed the improper motion. Here, Jill was the appellant, but Kenneth filed the allegedly improper motion. This created an unfair trap where Jill had to guess whether Kenneth’s motion was procedurally proper or risk losing her appeal rights.

3. First Rule 59(e) Motion
Kenneth’s September 10 motion was his first Rule 59(e) motion. The Court emphasized the language from Elam: “a party usually is free to file an initial Rule 59(e) motion without unnecessary concern the motion will result in a subsequent appeal being dismissed.”

4. Not Identical to Prior Motion
Kenneth’s motion was not “identical” to Jill’s previous motion. While it eventually turned out that Kenneth’s motion didn’t actually address issues from the Amended Final Order, this wasn’t clear to anyone—including Kenneth, the family court, or Jil—until many months later.

The Trap for Practitioners
The Court recognized the impossible position this situation created for Jill’s counsel. After Kenneth filed his timely Rule 59(e) motion, Jill’s counsel faced a dilemma:

Option 1: File an appeal immediately, risking dismissal if the court later determined Kenneth’s motion was timely and stayed the appeal deadline
Option 2: Wait for the court to rule on Kenneth’s motion, risking dismissal if the court later determined the motion was untimely and didn’t stay the deadline

The Court quoted its language from Elam: “civil procedure and appellate rules should not be interpreted to create a trap for the unwary lawyer.”

Practical Guidance for Family Law Practitioners
1. When Filing Your Own Rule 59(e) Motion

Serve your motion within 10 days of receiving written notice of the order you’re challenging
Clearly identify in your motion caption and attachments which order you’re addressing
Don’t worry about whether your motion might be deemed “procedurally improper” based on technical arguments—if it’s your first motion and served within 10 days, it stays the appeal deadline

2. When Your Opponent Files a Rule 59(e) Motion

Assume it stays the appeal deadline if it was filed within 10 days of the relevant order
Don’t try to calculate whether it might be “successive” or “procedurally improper”—those exceptions are extremely narrow
The safest course is to wait for the court’s ruling on the motion before filing your appeal
Your appeal deadline runs from receipt of written notice of the order granting or denying that motion

3. Understanding the 10-Day Window

The 10-day period runs from receipt of written notice of the order, not from the order’s filing date
If you’re uncertain whether a motion was timely filed, check the date the moving party received written notice of the underlying order
Remember that Rule 263(a) extends deadlines that fall on weekends or holidays to the next business day

4. Family Court Cases Require Special Attention
The interconnected nature of family court orders means that:

A motion addressing one issue may legitimately affect other issues not initially mentioned
Courts should be more lenient in family court cases about what constitutes a proper Rule 59(e) motion
Simply because an issue wasn’t mentioned in an amended order doesn’t automatically foreclose raising questions about how the change affects related issues

5. Multiple Party Considerations
Remember that a Rule 59(e) motion filed by one party stays the appeal deadline for all parties. This is explicit in both Rule 203(b)(1) and Rule 59(f).

What the Court Didn’t Change
The Court made clear it was not overruling or modifying Coward Hund, Quality Trailer, Collins Music, or Elam. Those cases remain good law, but the Court:

Limited their exceptions to the two specific situations originally identified
Refused to extend those exceptions to other situations
Reaffirmed Elam’s emphasis on the “limits and rationale” of those exceptions

The Court also declined to create a third exception, noting that 21 years have passed since Elam and no case has yet warranted one.

Comparison to Camp v. Camp
The Court cited its own reversal in Camp v. Camp, 386 S.C. 571 (2010), where the Court of Appeals had held that a Rule 59(e) motion insufficient under Rule 7(b)(1) didn’t stay the appeal deadline. The Supreme Court reversed, finding the motion tolled the appeal deadline despite being procedurally improper.
This reinforces the Swing holding: procedural defects don’t automatically mean a motion fails to stay the appeal deadline. The focus is on whether the motion was served within 10 days of the relevant order.

Key Takeaway
The Supreme Court has simplified the analysis: If a Rule 59(e) motion is served within 10 days of receipt of written notice of the order it addresses, it is “timely” and stays the appeal deadline for all parties—period.

Don’t get caught up in arguments about whether a motion is “successive,” “procedurally improper,” or fits some other technical exception. Those exceptions are extremely narrow, rarely apply, and should not be your starting point for analysis.

For family law practitioners, this decision provides much-needed clarity and removes the guesswork from calculating appeal deadlines when post-trial motions are filed. When in doubt, wait for the court’s ruling on any Rule 59(e) motion before filing your appeal.

This analysis is based on W. Kenneth Swing v. Jill K. Swing, Opinion No. 28266 (S.C. March 12, 2025). The opinion was authored by Justice Few, with Chief Justice Kittredge and Justices James, Hill, and Verdin concurring.