Steele v. Steele

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

David E. Steele, Respondent,

v.

Clara M. Steele, Appellant.

Appeal From Lancaster County

 Walter B. Brown, Jr., Family Court
Judge

Unpublished Opinion No. 2004-UP-578   

Submitted October 1, 2004 – Filed November
17, 2004

AFFIRMED

G. Robin  Alley, of Columbia, for Appellant.

Philip E. Wright, of Lancaster, for Respondent.

PER CURIAM: Clara M. Steele appeals from a family court order finding
her in contempt for destroying the plants, shrubs, and trees surrounding her
former marital home.  We affirm. [1]

FACTS

Clara M. Steele (Wife) and David E. Steele (Husband) were divorced on March
27, 2003.  The settlement agreement, which was incorporated into the final order,
required Wife to vacate the marital home by April 15, 2003, at which time Husband
would pay her $5,000 for moving expenses.  Husband agreed to pay Wife $45,000
by May 15, 2003, and an additional $40,000 by April 1, 2007.  In the agreement,
the parties promised not to “destroy or damage any real or personal property
of the other party.”

After having been in exclusive physical possession of the marital home for
three years pending the final settlement of the parties’ property rights, Wife
vacated the home on April 15, 2003.  Husband entered the home the following
day.  Shortly after moving in, he noticed damage to the Yoshino cherry trees,
the most fragile plants in the yard.  He soon noticed a general decline in the
health of the other plants as well.  Thirteen days after Husband took possession
of the home, many of the plants around the house were dead or dying.  Pictures
of the damage showed that the plants within ten to fifteen feet of the house
had been completely destroyed.  

Husband brought a contempt action against Wife on May 16, 2003, alleging Wife
had damaged and destroyed plants, shrubs, and trees around the marital home. 
He further requested to suspend payment of the $45,000 he owed Wife until the
contempt action was heard.  At the hearing, Husband testified as to his opinion
as a landscaper with a degree in horticulture and a holder of a South Carolina
pesticide license.  He believed that a chemical had been applied to the soil
and that the chemical would have residual effects.  To test this theory, Husband
planted new plants in the contaminated soil to see if they would survive.  The
new plants died almost immediately.  Husband also testified that he engaged
experts to help him document the damage and estimate the cost of repair.

Husband believed Wife was responsible for the damage.  He pointed out that
Wife has a master gardener degree from Clemson University and is “fairly knowledgeable
on chemicals that could be used to contaminate soil.”  Wife’s cousin and sister
testified for Husband, and both stated that Wife told them she would kill and
destroy all the plants around the house if she had to move from the marital
home.  In response, Wife presented testimony that she was not close to her sister
or cousin and she would not tell them such damaging information.  Wife’s daughter
and another cousin testified that Wife had never mentioned destroying any plants
around the house.  

The family court held Wife in contempt and ordered Husband to engage the services
of a licensed contractor to return the property as close as possible to its
condition on April 15, 2003.  The court ordered that Wife would bear the cost
of removing any contaminated soil and replacing all the plants that were destroyed. 
The court further found Wife should pay Husband’s attorney’s fees and costs,
totaling $1,000.  Both the cost of restoring the property and the attorney’s
fees were to be deducted from the $45,000 Husband owed Wife.  

Pursuant to Wife’s motion for reconsideration, the court modified the contempt
order as it related to damages.  The amended order required each party to obtain
an estimate for removing the soil and replacing the plants.  The parties were
directed to attempt to come to an agreement on the cost of restoring the property. 
If an agreement could not be reached, a subsequent hearing would be scheduled
to determine the measure of damages.  Wife appeals.            

STANDARD OF REVIEW

Although a determination of contempt is within the family court’s discretion,
an order holding a party in contempt “should be reversed when the holding is
based on a finding that is without evidentiary support or when there is . .
. an abuse of discretion.”  Means v. Means, 277 S.C. 428, 431, 288 S.E.2d
811, 812-13 (1982).  To sustain a finding of contempt, the record must be clear
and specific as to acts or conduct upon which the finding is based.  See
Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982).

LAW/ ANALYSIS

Wife maintains the family court erred in holding her in contempt of a prior
court order because the finding is without evidentiary support.  We disagree.

Upon moving into the home, Husband immediately started noticing problems with
the plants, shrubs, and trees on the property.  As stated above, a mere thirteen
days later almost everything, including the grass surrounding certain plants,
was dead or dying.  In Husband’s opinion as a landscaper and licensed pesticide
applicator, the soil had been directly contaminated.  He tested his theory by
planting new tomato plants, all of which died over a two-week period.   Furthermore,
Husband testified that the rain totals for the year had been “more than sufficient.” 

Additionally, Wife is a master gardener and has some knowledge of chemicals. 
She also had direct, unfettered access to the house.  In contrast, Husband testified
that he once had to be escorted to the property by a deputy sheriff to view
a roof in need of repair so Wife would not shoot at him.

Most importantly, Shelby Jean Taylor, Wife’s first cousin, testified that Wife
said on several occasions that “she was going to kill everything around [the
house].”  Wife’s sister, Samantha Ann Roads, testified that, following their
mother’s death, Wife “said that if she had to move from the house, had to leave
the house, that she would kill and destroy all the plants around the house.” 
Though Wife’s daughter and Wife’s cousin, Joyce Snipes, both testified that
Wife had a strained relationship with Husband’s witnesses and would never have
used them as confidantes, Snipes’ testimony contradicted Wife’s.  Snipes claimed
that Wife and Husband’s witnesses had not spoken since the funeral of Wife’s
mother.  However, Wife admitted she saw Taylor and her sister once a month since
her mother passed away. 

Based on the testimony of the witnesses, we find there is evidence in the record
from which the family court could find that Wife destroyed the plants surrounding
the marital home.  Therefore, the family court did not abuse its discretion
by holding Wife in contempt of its previous order.

Wife next maintains the family court erred by awarding damages to Husband because
the damages were speculative in nature and based entirely on conjecture.  We
disagree.

According to the order dated July 25, 2003, the parties each must acquire one
estimate on the cost of “removal of the contaminated soil and replacement of
the plants, which were destroyed.”  If they cannot agree on a price to replace
the plants, the family court “shall schedule a hearing . . . to determine the
measure of damages.”   Thus, damages have yet to be awarded.  Because the family
court has not made a final ruling on damages, the appeal as to the issue of
damages is premature.  See S.C. Code Ann. § 14-3-330 (1976).    

Accordingly, the family court’s order
is

AFFIRMED.

HEARN, C.J., HUFF, and KITTREDGE, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.