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May v. May

Court of Appeals of South Carolina

July 24, 2019

Keith Alan May, Respondent,
v.
Denise Marie May, Appellant. Appellate Case No. 2017-000030

          Heard April 17, 2019

          Appeal From Charleston County Daniel E. Martin, Jr., Family Court Judge

          Harold Alan Oberman, of Oberman & Oberman, of Charleston, for Appellant.

          Donald Bruce Clark, of Donald B. Clark, LLC, and Mary Kathryn Schmutz, of Schmutz & Schmutz, both of Charleston, for Respondent.

          KONDUROS, J.

         Denise Marie May (Wife) appeals the family court's grant of Keith Alan May's (Husband's) motion to set aside judgment in the parties' divorce action based on mutual mistake pursuant to Rule 60, SCRCP. We affirm.

         FACTS/PROCEDURAL BACKGROUND

         Husband and Wife were married twice. This action involves the divorce ending their second marriage. As part of the divorce action, Husband and Wife were subject to mandatory mediation. Wife appeared pro se at the mediation, although she had previously been represented by counsel. Husband was represented at the mediation. The parties reached a consensus on all relevant issues at the conclusion of the mediation, and the mediator drafted a settlement agreement (the Agreement) intended to reflect the agreed-upon terms. The relevant part of the Agreement provided:

The Wife shall refinance or assume the debt on the home to remove the Husband's name from the indebtedness to Benchmark Mortgage. The Wife shall refinance or assume the debt on the home to remove the Husband's name from the indebtedness on or before June 7, 2016. The Husband hereby waives and relinquishes any and all interest in the property and the equity therein. The Wife shall be responsible for any and all debts and liabilities associated with this property and shall hold the Husband harmless therefrom.
Should the Wife not refinance or otherwise remove the Husband's name from the Benchmark Mortgage on or before June 7, 2016, the house shall be placed on the market for sale by June 13, 2016. . . . All net sales proceeds shall be split by the parties on a 50/50 basis.

         Husband and Wife initialed each page of the Agreement and signed the final page. Husband and Wife then appeared before the family court, again with counsel and pro se respectively, and affirmed they had read and understood the Agreement and consented to it. Wife refinanced the mortgage on the marital home and removed Husband's name therefrom in the allotted time. However, according to Husband, Husband's attorney, and the mediator, the parties agreed that if Wife was able to refinance the marital home, she would pay Husband $60, 000 as his part of the equity in the home. As exposed in the above-quoted portion of the Agreement, the document did not include this provision.

         Husband filed a Rule 60(a) and (b), SCRCP motion, arguing the Agreement should be reformed to correct his and Wife's mutual mistake in signing something other than what they agreed to at mediation. Husband's attorney, Husband, and the mediator presented affidavits to that effect. Wife attested in her affidavit "there is no error, clerical or otherwise, in the agreement or the [family court]'s Order. This is the agreement that was drafted [and] signed [, ] and it is precisely to what I agreed." Wife also argued evidence regarding anything that occurred during mediation was protected by privilege under Rule 8, SCADR. The family court concluded the Agreement reflected a mistake and should be reformed. The family court indicated it did not rely on the mediator's affidavit in reaching its conclusion. Rather, the family court relied on the parties' affidavits and the internal inconsistency in the Agreement which under Wife's interpretation, would give Husband no equity in the marital home if Wife refinanced but would give him half the equity if the home was sold. Additionally, the court declared each party should pay his or her own attorney's fees. The family court denied Wife's motion for reconsideration, and this appeal followed.

         STANDARD OF REVIEW

         "Whether to grant or deny a motion under Rule 60(b)[, SCRCP, ] lies within the sound discretion of the judge. Our standard of review, therefore, is limited to determining whether there was an abuse of discretion." Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 17-18, 594 S.E.2d 478, 482 (2004) (citation omitted). "An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion without evidentiary support." Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 434, 673 S.E.2d 448, 457 (2009).

         LAW/ANALYSIS

         I. ...


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