Kinsale v. Kinsale

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jessica Erica Kinsale, Appellant,

v.

Kirk Shawn Kinsale, Respondent.

Appellate Case No. 2016-000131

Appeal From Richland County
Monét S. Pincus, Family Court Judge

Unpublished Opinion No. 2017-UP-271
Heard June 5, 2017 – Filed July 5, 2017

VACATED

Bertila Ivane Delora Boyd-Bostic and Antoine Terrell
Bostic, both of Bostic & Boyd, LLC, of Columbia, for
Appellant.

Thomas M. Neal, III, of Law Offices of Thomas M. Neal,
III, and Cyril B. Rush, Jr., of The Rush Law Firm, LLC,
both of Columbia, for Respondent.

PER CURIAM: Jessica Kinsale (Wife) appeals the family court's decision
finding her in contempt and awarding attorney's fees to Kirk Kinsale (Husband).
Wife contends the family court erred in (1) asserting jurisdiction over a temporary
order pending Wife's appeal of the final divorce order, (2) finding Wife in
contempt regarding the payment of property taxes after 2013, and (3) granting
attorney's fees to Husband for the contempt hearing. We vacate.

The family court erred in asserting jurisdiction over the temporary order while the
final order was on appeal. The temporary order, issued in 2014, directed Wife to
pay the property taxes of the daycare business and to comply with a payment plan
she worked out with the county for the 2013 taxes. In 2015, the final order
directed Wife to continue to pay all debt of the daycare business. Wife then
appealed the final order on September 10, 2015. Husband later requested the
family court hold Wife in contempt of the temporary order for failing to pay the
property taxes of the daycare business, while the final order was still on appeal.
We find the family court erred in proceeding with a matter that was affected by the
appeal. Rule 205, SCACR, provides: "Upon the service of the notice of appeal, the
appellate court shall have exclusive jurisdiction over the appeal . . . . Nothing in
these Rules shall prohibit the lower court . . . from proceeding with matters not
affected by the appeal." Rule 241(a), SCACR, provides: "[T]he service of a notice
of appeal in a civil matter acts to automatically stay matters decided in the order . .
. on appeal . . . . This automatic stay continues in effect for the duration of the
appeal unless lifted by order of the lower court . . . . The lower court . . . retains
jurisdiction over matters not affected by the appeal including the authority to
enforce any matters not stayed by the appeal." See also Terry v. Terry, 400 S.C.
453, 457, 734 S.E.2d 646, 648 (2012) (holding a purported error in a temporary
order should be addressed at the final hearing and a challenge to a final order may
be made by appeal of the final order).1

VACATED.

SHORT, WILLIAMS, and KONDUROS, JJ., concur.

1
Based on our finding regarding jurisdiction, we decline to address Wife's
arguments the family court erred in finding Wife in contempt and awarding
attorney's fees to Husband. See Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding the appellate court need
not address remaining issues when the previous issue is dispositive).