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Woods v. Woods

Court of Appeals of South Carolina

July 27, 2016

Wilfred Allen Woods, Respondent,
v.
Etta Catherine Woods, Appellant. Appellate Case No. 2012-213719

          Heard Date May 12, 2015

         Appeal From Barnwell County W. Thomas Sprott, Jr., Family Court Judge

          Jon Terry Clabaugh, Jr., of Columbia, for Appellant.

          Michael P. O'Connell, of Stirling & O'Connell, of Mount Pleasant, for Respondent

          MCDONALD, J.

         In this appeal from family court, Appellant Etta Woods (Wife), argues the family court erred in (1) denying her motion dismiss because the court lacked jurisdiction based on the parties' prior agreement; (2) reducing alimony from $8, 000 to $4, 000; (3) providing for an automatic decrease in alimony two years in the future; (4) granting Respondent Wilfred Woods's (Husband) motion to reconsider; and (5) failing to require Husband to pay any portion of her attorney's fees. We affirm in part and reverse in part.

         FACTS AND PROCEDURAL HISTORY

         Husband and Wife were married on August 4, 1973, and separated on or about October 25, 1997. By order filed in Barnwell County on June 2, 1999 (Divorce Decree), the couple divorced on the ground of one year's continuous separation. The parties' only child was already emancipated when the parties divorced.

         The Divorce Decree approved and incorporated a property settlement agreement (Agreement) by which the parties resolved all issues arising from their marriage, including Husband's obligation to pay Wife permanent, periodic alimony of $8, 000 per month. Section I of the Agreement is titled "SPOUSAL SUPPORT" (Spousal Support Section). Paragraphs B and E of the Spousal Support Section, in relevant part, state as follows:

[Husband] shall pay directly to [Wife] the sum of [$8, 000] per month, as and for permanent, periodic alimony, commencing June 1, 1999, and payable on the first of each month thereafter. The alimony payments provided for in this [A]greement shall be taxable to [Wife] for federal and state income tax purposes and deductible to [Husband]. These alimony payments shall terminate on the remarriage or death of [Wife] or upon the death of [Husband] . . . .
. . . .
The parties agree that this permanent, periodic alimony shall not be modifiable by [Husband] for a period of [three] years from the date of the approval of this Agreement so long as [Husband's] total gross income (as defined by the Internal Revenue Code, including but not limited to tax exempt income) is not less than [$500, 000] per year. In the event that [Husband] conveys any of his interest in Gilliam & Associates, Inc., in any form, including but not limited to an acquisition, merger, recapitalization, restructure, or other transference or disposal in any fashion whatsoever which provides a benefit to [Husband] and which reduces his income to below [$500, 000] per year, [Husband] acknowledges that this conveyance shall be subject to review by the Family Court for the Second Judicial Circuit for the purposes of a reduction of alimony.

         Section XVIII of the Agreement is titled "APPROVAL, NON-MODIFICATION AND ENFORCEMENT OF AGREEMENT" (Approval, Non-modification and Enforcement Section). Section XVIII, paragraph D, provides, in relevant part:

It is the intent of the parties that the provisions of this Agreement shall govern all rights and obligations of the parties as well as all rights of modification; and, further, that the terms and conditions of this Agreement and any Order approving the same shall not be modifiable by the parties or any court without the written consent of the Husband and Wife. The parties specifically agree, except as set forth herein, that neither the Family Courts of the State of South Carolina nor any other court shall have jurisdiction to modify, supplement, terminate, or amend this Agreement or the rights and responsibilities of the parties hereunder, except as to child support, custody and visitation, which the parties understand to be modifiable as a matter of law.

         On December 2, 2010, Husband brought this action seeking a modification of his alimony obligation due to a changed circumstance-namely, an alleged substantial decrease in his income since the issuance of the Divorce Decree. Wife contended the family court lacked jurisdiction to modify alimony based on the terms of the parties' Agreement, arguing: (1) "the changed circumstance alleged by Husband was voluntary and intentionally created by him and did not constitute a valid changed circumstance justifying an alimony reduction, " (2) "the court should consider Husband's earning capacity and assets for the purposes of any alimony modification, " and (3) Wife should receive an "increase in alimony based on a change in circumstances, namely an alleged substantial increase in Husband's income or earning capacity and assets since the [Divorce Decree]."

         On April 12, 2011, Wife moved to dismiss, asserting that the family court lacked subject matter jurisdiction to modify alimony based on the parties' agreement. The Honorable Dale Moore Gable heard the motion on June 13, 2011, and denied the motion from the bench.[1] However, Judge Gable's August 26, 2011 order expressly left review of the alimony modification issue to the judge presiding at the final hearing:

IT IS THEREFORE ORDERED AND DECREED THAT [Wife's] Motion to Dismiss is denied; However
IT IS FURTHER ORDER [sic] AND DECREED THAT that [sic] the Judge at the Final Hearing is not bound by this denial and after listening to testimony from the parties and witnesses may find that [Husband's] alimony obligation to [Wife] is, or is not, modifiable based upon a substantial change in circumstances.

         Additionally, Judge Gable quoted section 1 of the Agreement, "SPOUSAL SUPPORT, " and paragraph XVIII(D), finding both to be "unambiguous and clear." Trial was initially scheduled to begin on September 12, 2011, but was continued by order dated November 21, 2011. In this order, the family court provided that if the court "determines that a modification of the Defendant's[2] [sic] support obligations as set forth in the divorce decree is warranted, the [family court] shall have the discretion to make any adjustments retroactive to the date this trial was originally scheduled to commence (i.e. September 12, 2011)."

         In February 2012, Husband amended his complaint based on alleged additional changed circumstances, including (1) a reduction in his income substantially below $500, 000 per year, (2) the conveyance of his interest in the business Gilliam & Associates, Inc. (Gilliam & Associates), and (3) a decrease in Wife's expenses and her anticipated receipt of social security benefits. Husband also requested that any alimony reduction or termination be made "retroactive to the date of filing and at least retroactive to the date of the previously scheduled [f]inal [h]earing in September, 2011. . . ." Wife amended her responsive pleading, again asserting the family court lacked jurisdiction to modify alimony based on the parties' Agreement. Wife argued the sale of Husband's interest in the business was "contemplated or anticipated" at the time of the divorce and as such did not constitute a changed circumstance justifying an alimony modification.

         On August 7, 2012, the Honorable W. Thomas Sprott, Jr., heard pretrial motions, including Wife's motion to dismiss. That same day, Judge Sprott notified both parties that he would be denying Wife's motion to dismiss. Trial was held on August 8-10, 2012. By order filed November 30, 2012 (Final Order), Judge Sprott (1) denied Wife's motion to dismiss; (2) reduced Husband's permanent, periodic alimony obligation from $8, 000 to $4, 000 per month commencing November 1, 2012; (3) stated the alimony would be taxable to Wife and deductible by Husband for income tax purposes; (4) provided that alimony would be further reduced by the amount of social security benefits to which Wife would be entitled when she reaches age sixty-two even if she defers taking benefits at that time; and (5) required both parties to pay their own attorney fees and costs.[3]

         On December 12, 2012, Husband served Wife via facsimile with a motion to reconsider, stating he had received written notice of the entry of the Final Order on December 3, 2012, and sought an order reducing alimony from $8, 000 to $4, 000 per month retroactively to September 2011 (when the case was initially scheduled to be tried).[4] On December 28, 2012, Wife served her notice of appeal challenging the Final Order and Interim Orders.

         On January 14, 2013, the family court granted Husband's motion to reconsider. Husband had continuously paid Wife $8, 000 monthly alimony from June 1999 through October 2012. In order to give effect to the retroactive reduction in alimony to September 12, 2011, the family court ordered Husband to start paying Wife reduced alimony of $2, 000 monthly beginning on November 1, 2012, until Husband was fully reimbursed for the overpayments.

         On January 23, 2013, Wife served a motion to reconsider the order granting Husband's motion to reconsider. On February 25, 2013, the family court allowed Wife to file a return to Husband's motion to reconsider and stayed the January 2013 order granting Husband's motion to reconsider. Wife filed a return to Husband's motion to reconsider on March 8, 2013. The parties filed a stipulation on September 26, 2013, regarding the fax transmission of Husband's motion to reconsider.

          On September 4, 2013, this court remanded the case to the family court for the limited purpose of ruling on any pending motions that might affect the appeal, including the motions to reconsider. On October 28, 2013, the family court issued a second order, granting Husbands motion to reconsider and vacating the January 2013 order.

         On November 27, 2013, Wife served a notice of appeal challenging the October 2013 order granting Husband's motion to reconsider. On January 27, 2014, this appeal was consolidated with Wife's prior appeal of the Final Order and Interim Orders.[5]

         ISSUES ON APPEAL

         I. Did the family court err in denying Wife's motion to dismiss because it lacked jurisdiction to modify alimony under the terms of the parties' agreements?

         II. Did the family court err in reducing alimony or, alternatively, err in reducing alimony by one-half of the original award?

         III. Did the family court abuse its discretion in providing for an automatic decrease in alimony nearly two and a half years in the future based on Wife's anticipated eligibility for social security benefits, when such was not requested in Husband's pleadings?

         IV. Did the family court err in granting Husband's motion to reconsider, which was untimely served by mail but timely served by facsimile, and in granting relief sua sponte, under Rule 60(b)(1), SCRCP, more than ten days after entry of the Final Order?

         V. Did the family court err in failing to require Husband to pay or contribute to Wife's attorney's fees?

         STANDARD OF REVIEW

         "The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). "Article V, § 5 of the South Carolina Constitution provides in relevant part that our appellate jurisdiction in cases of equity requires that we 'review the findings of fact as well as the law.'" Id. In appeals from the family court, appellate courts review factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the [family] court's findings." Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55. "However, this broad scope of review does not require [the appellate court] to disregard the findings of the family court." Id. at 384, 709 S.E.2d at 651 (quoting Eason v. Eason, 384 S.C. 473, 479, 682 S.E.2d 804, 807 (2009)).

         LAW/ANALYSIS

         I. Jurisdiction to Modify Alimony

         Wife contends the parties' Agreement deprives the family court of subject matter jurisdiction to modify Husband's obligation to pay Wife $8, ...


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