Heard
December 4, 2018
Appeal
From Charleston County Daniel E. Martin, Jr., Family Court
Judge
Gregory Samuel Forman, of Gregory S. Forman, PC, of
Charleston, for Appellant.
Megan
Catherine Hunt Dell, of Dell Family Law, P.C., of Charleston;
and Theresa Marie Wozniak Jenkins, of Theresa Wozniak
Jenkins, Attorney at Law, LLC, of Flint, Michigan, both for
Respondent.
WILLIAMS, J.:
In this
domestic relations matter, Jessica Pares (Wife) appeals the
family court's Order from Rule to Show Cause/Motion,
arguing the family court erred in (1) granting Robert
Thompson's (Husband) Rule 60(b)(5), SCRCP motion; (2)
refusing to give Wife another opportunity to refinance the
former marital home (the Home); (3) failing to make Husband
solely responsible for the lien with Palmetto Coastal
Investments, LLC (the Palmetto Lien); and (4) awarding
attorney's fees to Husband and not awarding
attorney's fees to Wife. We reverse and remand.
FACTS/PROCEDURAL
HISTORY
Husband
and Wife married on October 13, 2002. During the marriage,
the parties owned and operated Palmetto Tree Service, LLC
(Palmetto Tree). Wife managed the accounting and clerical
tasks, and Husband worked at various job sites planting,
removing, and fertilizing trees.
Husband
and Wife separated around April 15, 2010, and they were
divorced on July 26, 2011. After the parties separated, but
prior to their divorce, Husband and Wife entered into a
written final settlement agreement (the Agreement) resolving
all issues arising out of their marriage except for the
matter of divorce. On October 8, 2010, the family court
issued a final order (the Final Order), which approved the
Agreement, incorporated the Agreement, and indicated the
Agreement was issued as the enforceable order of the
court.[1]
The
Final Order provided "[a]s soon as she is able, Wife
shall assume or re-finance all loans on [the Home] in her own
name. . . . Wife must place [the Home] on the market for sale
on or before June 1, 2025." The Final Order also
provided Husband and Wife would each be responsible for their
own debts, indemnify each other against liability for those
debts, and pay all accounts and obligations in a timely
manner so as to not harm the other party's credit. The
Final Order made Husband responsible for all debts associated
with Palmetto Tree and indemnified Wife from Palmetto
Tree's debts. Finally, the Final Order provided:
It is the intent of the parties that the provisions of [the
Final Order] shall govern all rights and obligations of the
parties as well as all rights of modification; and, further,
that the terms and conditions of [the Final Order] . . .
shall not be modifiable by the parties or any court without
the written consent of Husband and Wife . . . . Neither the
Family Courts of the State of South Carolina nor any other
court shall have jurisdiction to modify, supplement,
terminate, or amend [the Final Order] or the rights and
responsibilities of the parties hereunder.
In
August 2011, Wife, on the advice of her counsel-individually
and on behalf of Palmetto Tree-consented to the entry of the
Palmetto Lien in the amount of $42, 500. The Palmetto lien
resolved a lawsuit initiated by Palmetto Coastal Investments,
LLC, on December 29, 2009, after payments were not made
pursuant to a January 31, 2008 commercial lease that was
signed by Wife personally and on behalf of Palmetto
Tree.[2]
After
entry of the Final Order, Wife paid the mortgages on the Home
from accounts held by Palmetto Tree. Husband resided in the
Home without Wife from October 2012 until November 2013.
During that time, Wife continued to pay the mortgages through
June 2013, [3] but no further mortgage payments were made
following the June 2013 payment until February 2015. Wife
testified she believed Husband would pay the mortgages while
he resided in the Home. She stated she presented Husband with
a lease that required Husband to pay rent, but Husband
refused to sign the lease. Husband testified Wife did not
provide him with a proposed lease, and there was no agreement
for him to pay the mortgages because Wife paid all of the
bills out of the Palmetto Tree account. Husband also noted
the court did not order him to pay the mortgages. Husband
testified that at some point, he became aware he would have
to start paying the mortgages after he and Wife argued about
the payments. However, Husband indicated he could not pay the
mortgages because Wife interfered with his business by
withholding checks and insurance information, opening a
competing business, and disconnecting his business phone.
Husband and Wife each included the Home's mortgage
payments on their individual financial declarations in 2013.
Wife
testified she attempted to make partial payments on the
mortgages after Husband vacated the Home in November 2013.
However, Wife indicated the bank would only allow her to make
the payments in full. Wife said she utilized the Home as a
rental property and received approximately $70, 000 in rental
income. She stated she did not attempt to make further
payments on the mortgages because she had to utilize the
money to fix damage Husband caused to the Home[4] and the bank
would not accept partial payments.
In
October 2014, Wells Fargo Bank filed an action to foreclose
on the Home because the first mortgage was not
paid.[5] Wells Fargo's complaint indicated that
as of June 1, 2013, the principal sum of $269, 135.73, with
an interest rate of 5.875%, advances, late charges, and costs
and disbursements of the action, including attorney's
fees, were due. On January 2, 2015, Wife e-mailed Husband to
inform him of the scheduled foreclosure. She indicated she
did not intend to lose the Home but stated it "is in my
best interest to prolong the process as long as
possible." Wife indicated that although her credit was
damaged, her new husband had good credit, so she would not be
affected if the Home went into foreclosure. Wife wrote,
"I'm assuming you are trying to repair your credit
so that you can purchase a home for yourself and do not want
a foreclosure on your credit history." Wife gave Husband
four options for the Home: (1) do nothing and have the Home
go into foreclosure; (2) sign a quit claim deed; (3) allow
Wife to sell the Home to her new husband's parents; or
(4) sign a quit claim deed so Wife's father could buy
Husband's right to the equity in the Home for $60, 000.
Wife's e-mail ...