Cathryn Gaither v. William Gaither

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

Cathryn G.
Gaither, Respondent,

v.

William C.
Gaither, III, Appellant.

Appeal From Horry County

 H. E. Bonnoitt, Jr., Circuit Court Judge

Unpublished Opinion No. 2010-UP-214

Submitted March 1, 2010 – Filed March 15,
2010

AFFIRMED IN PART AND REVERSED IN PART

Russell Patrick Brehn, of Conway, for Appellant.

Thomas D. Guest, Jr., of Murrells Inlet, for Respondent.

PER CURIAM: 
In this domestic action, William C. Gaither, III (Husband) appeals the family
court's amended order awarding Cathryn G. Gaither (Wife) eight thousand dollars
in attorney's fees and ordering Husband to convey certain real property and to
make final equitable distribution payment to Wife within thirty days of the
order.  Husband argues (1) the family court was without jurisdiction to require
Husband to make payment or convey property to Wife and (2) the family court
improperly applied the Glasscock factors in awarding attorney's fees to
Wife.  See Glasscock v.
Glasscock, 304 S.C. 158, 403 S.E.2d
313 (1991).  We affirm in
part but reverse the award of attorney's fees.

1.  As
to the Husband's first argument that the family court lacked jurisdiction, we
affirm.  It was appropriate for the family court to modify the original order
because this court made a substantive change to the value of the marital estate
and remanded for the family court to reapportion the property.  See Gaither v. Gaither, Op. No. 2006-UP-422 (S.C. Ct. App. filed Dec.
19, 2006).  Pursuant to our order of remand, the family court had
jurisdiction to order Husband to convey the property and make final payment
within thirty days of its amended order.  See S.C. Code Ann. §
20-3-620(C) (Supp. 2009) ("The [family] court's order as it affects
distribution of marital property shall be a final order not subject to
modification except by appeal or remand following proper appeal.").

2.  As to the Husband's second argument that the
family court improperly applied the Glasscock factors for awarding
attorney's fees, we reverse.  This court previously reversed and remanded for
the family court to reconsider Wife's entitlement to attorney's fees.  Gaither
v. Gaither, Op. No. 2006-UP-422 (S.C. Ct. App. filed Dec. 19, 2006).  The
resulting family court order failed to make specific factual findings on each
of the six factors under Glasscock, instead focusing on Wife's inability
to pay her fees.  See Glasscock, 304 S.C. at 161, 403 S.E.2d at
315; see also Griffith v. Griffith, 332 S.C. 630, 646, 506
S.E.2d 526, 534-35 (Ct. App. 1998) (noting the family court order awarding
attorney's fees must set forth specific findings of fact for each of the
required factors).  Inability to pay is one of four factors in determining whether to award attorney's fees.  See E.D.M. v. T.A.M, 307 S.C. 471,
476-77, 415 S.E.2d 812, 816 (1992). 

Wife's
affidavit in support of attorney's fees was not included in the record on appeal. 
We consider the record only as it was presented to us.  See Rule 210(c),
SCACR ("The Record on Appeal shall include all matter designated to be
included by any party . . . ").  In addition, Wife did not file a
respondent's brief in the current appeal.  Rule 208(a)(4), SCACR,
provides in part: "Upon the failure of the respondent to timely file a
brief, the appellate court may take such action as it deems proper."  This
action includes reversing the judgment below.  See Wierszewski v.
Tokarick, 308 S.C. 441, 444 n.2, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992)
(holding that when the respondent failed to file a brief, the appellate court
deemed it proper "to reverse on the points presented rather than to search
the record for reasons to affirm").  Accordingly, we reverse the family
court's award of attorney's fees. 

AFFIRMED
IN PART AND REVERSED IN PART.[1]   

HUFF, THOMAS,
and KONDUROS, JJ., concur. 

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