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Thompson v. Thompson

Court of Appeals of South Carolina

August 7, 2019

Jessica Orzech Thompson n/k/a Jessica Orzech Pares, Appellant,
Robert Guignard Thompson, Respondent. Appellate Case No. 2016-001770

          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.


         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 ...

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