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Bauckman v. McLeod

Court of Appeals of South Carolina

December 31, 2019

Robert Bauckman, Respondent,
v.
Jennifer McLeod, Appellant. Appellate Case No. 2017-000885

          Heard September 10, 2019

          Appeal From Sumter County George M. McFaddin, Jr., Family Court Judge.

          John Eagle Miles, Sr., and Everett Joseph Mercer, both of Sumter, for Appellant.

          Richard Thomas Jones, of Jones Seth & Jones, LLP, of Sumter, for Respondent.

          GEATHERS, J.

         In this action to determine child support arrearages, Jennifer McLeod ("Mother") challenges the family court's final order, arguing the family court erred in 1) reducing the amount of child support arrearages owed by Robert Bauckman ("Father"); 2) failing to award judgment interest on the arrearage amount; 3) failing to modify Father's current support obligation; and 4) awarding attorney's fees and costs to Father. We affirm in part, reverse in part, and remand.

          FACTS

         Mother and Father were married on September 16, 1997. The parties have one son ("Child") who was born in 1999. The parties divorced on November 25, 2002, and the family court's final order required Father to pay $399 a month in child support. The order provided that payments were to be made directly to Mother but included a provision for payment through the court should Father ever be more than fourteen days late.

         Around April 2008, Father began paying $240 a month in child support and made no payments during the summer months in which Child was visiting with Father.[1] In November 2015, Father resumed paying $399 a month in child support. On November 30, 2015, Father filed a summons and complaint, notice of motion, and motion for temporary relief in which Father asked the court to "increase" his child support payments to $399[2] a month and declare him current on his child support obligation. On January 4, 2016, Mother filed her answer and a counterclaim seeking an accounting of the arrearage on unpaid child support, including interest, and a modification of child support based on Father's increase in income. Father filed a reply on January 28, 2016, alleging the reduction of child support was not a unilateral decision and arguing that equitable estoppel precluded Mother from collecting the arrearages and interest on the unpaid child support.

         A final hearing was held on May 25, 2016. At the hearing, Father stipulated that his arrearages totaled $17, 430. Father testified that he remarried and now had two children with his new wife. Concerning the reduced child support payments, Father claimed that he called Mother in March 2008 to notify her that he was having a difficult time making the $399 payment and paying for Child's insurance. According to Father, Mother agreed that the court ordered child support was "a lot of money" and suggested he start paying $240 a month, indicating that amount "would be sufficient." Additionally, Father testified that Mother told him not to pay child support during the summer while Child was visiting with Father because he was taking care of Child and "footing the bill" for Child's airfare.[3] Father further indicated that Mother never complained about the reduced payments, filed an action for contempt, or filed an affidavit with the court to have child support paid through the clerk's office. To the contrary, Father testified that Mother had indicated Child "was well taken care of and she had no money issues."

         Father further testified that he relied on Mother's assurances that he only had to pay $240 a month in child support. Additionally, Father testified that the entire arrearage issue had arisen over a pair of "Beats" headphones. Father indicated that his new wife had purchased Child a pair of "Beats" headphones for behaving and working on his summer-school assignments. However, Father's wife took the headphones away from Child as punishment for cutting up Father's youngest son's t-shirt. Mother called Father in November 2015 to discuss the headphones incident, but Father's wife answered the phone and the two got into a disagreement. According to Father, Mother sought to enforce the entire child support obligation after this incident, asserting that Father owed her $14, 310 in arrearages. Finally, Father testified he never sought a child support modification from the family court but thought that he was doing the right thing.

         Child's maternal grandmother, Patsy Royal ("Grandmother"), testified that Mother and Child lived with her for a period of time following Mother and Father's divorce. After Grandmother's mother died, she used some of her inheritance to buy a house for Mother and Child. Grandmother further testified the original $399 child support payments were not always enough to cover Child's expenses and Child's doctor did not accept Father's insurance. As a result, Grandmother testified she often helped pay for Child's doctor visits and would write checks for his school lunch account. Grandmother indicated Mother was struggling financially for a while and Grandmother helped co-parent Child because Mother needed the support.

         Mother testified she remarried and has a two-year-old daughter with her new husband. Concerning the reduced child support payments, Mother indicated Father called to inform her that he had been receiving unemployment and would not be able to pay the full amount. Mother explained that she thought the reduced payment was a one-time thing and that Father would pay her back the next month. Mother further indicated $240 was not enough to provide for all of Child's needs and she did not have the excess income needed to cover the $159 difference. Mother testified that when she would ask Father to resume paying the full child support obligation, Father would respond that Child would suffer because of it. According to Mother, Father would often ask, "What are you going to do? Put [Child]'s dad in jail?," before asking her how this would make Child feel. Additionally, Mother indicated that if she asked Father to pay the full amount, he would respond by claiming that he would not be able to afford the airfare for Child's visits or Child's Christmas presents. As a result, Mother claimed she did not push the money issue or seek contempt charges because she was afraid Father would retaliate against Child.[4]

         On February 13, 2017, the family court issued its final order. In its order, the court found the "circumstances clearly indicate that the parties did in fact have an agreement." Specifically, the court was convinced by the fact that Father paid $240 a month for seven and a half years without Mother filing a contempt action, filing an affidavit with the court, or otherwise raising any objections.[5] Additionally, the court found Father was more credible than Mother[6] and that Grandmother had testified all of Child's financial needs were met. The court further found,

The conduct of the Mother was calculated to convey the impression that the [$240] payment and non-payment during the summer months from April[] 2008 through October[] 2015 was the agreement of the parties and conveyed to the Father the impression that the parties should follow that agreement. The Mother is now attempting to assert a completely different position. There was an intention, or at least an expectation, by the Mother that her conduct would be acted on by the Father.

         The court determined that

The Father relied upon the agreement of the parties from 2008 to 2015, and obviously, assumed [$240] to be the correct and/or acceptable child support payments, as there was no action to object to these payments for seven and one-half (7½) years. The Father conducted his personal and financial life in such a way that he was relying upon the payments being [$240.00] per month and non-payments during the summer. The Mother has now placed in her pleadings a request for the entire alleged arrearage being owed and also states in her pleadings that she is entitled to interest. If the Father had known the Mother would be seeking a different amount of child support seven and one-half (7½) years later, and especially seeking interest, he would have taken a different approach. The Father has therefore relied upon the agreement of the parties and upon the conduct of the Mother[, ] and the Father has had a prejudicial change of position in reliance upon the conduct of the Mother and agreement of the parties.

         Accordingly, the court found Father had proven the defense of equitable estoppel.

         Pursuant to its estoppel finding, the court determined it would have been justified in finding Father paid in full, but ruled that Father owed $14, 310.00 in arrearages. However, the court determined Father would not have to pay interest because Mother did not request it in her pleadings, had not presented evidence concerning interest, presented no evidence of Father's bad faith, and equitable estoppel barred Mother from receiving interest. The court further denied Mother's request to modify child support, finding Mother had not presented any testimony or evidence on the issue. Finally, the court ordered Mother to pay Father's attorney's fees. Mother filed a motion to reconsider on March 3, 2017, and the court denied the motion on March 16, 2017.[7] This appeal followed.

         ISSUES ON APPEAL

         1. Did the family court err in reducing the amount of child support arrearages owed by Father?

         2. Did the family court err in failing to award judgment interest on the arrearage amount?

         3. Did the family court err in failing to modify Father's current support obligation?

         4. Did the family court err in awarding attorney's fees and costs to Father?

          STAND ...


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