Combs v. Combs

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

L. Brownell
Combs, II, Respondent,

v.

Wilhelmina
Combs, Appellant.

Appeal From Kershaw County

 Jeffrey M. Tzerman, Circuit Court Judge

Unpublished Opinion No. 2008-UP-003

Heard December 12, 2007 – Filed January 2,
2008

AFFIRMED

William S. Tetterton, of Camden, for Appellant.

Thomas E. Lydon, of Columbia, for Respondent.

PER CURIAM:  This
is an appeal from the denial of Appellant’s motion to set aside the judgment of
foreclosure pursuant to Rule 60(b)(4), SCRCP.  She maintains the Master-in-Equity in Kershaw County did not have subject matter jurisdiction.  We affirm.

FACTS

In 1983, the parties deeded their ownership in
property located in Kershaw County, South Carolina, to Diablita, Inc., a
corporation controlled by Appellant.  Prior to being married in 1987, the
parties signed an antenuptial agreement in which Respondent conveyed any
ownership he had in Diablita to Appellant, making her the sole owner of the
corporation.  Additionally, the agreement provided all property individually
owned by either Appellant or Respondent, whether acquired before marriage or
during the marriage, would remain the property of the individual with title to
the property. 

In
1992, Diablita gave Ely Place Nominees, LTD., a promissory note and mortgage on
the Kershaw County property in exchange for a loan of $300,000.  Respondent
testified Ely Place held money on his behalf and made the loan at his
direction.  He indicated the money loaned to Diablita were his personal funds. 

Appellant
filed for divorce in 1997 in Florida and did not list the debt Diablita owed to Ely Place.  In addition,
Appellant never raised the issue of the debt during the divorce proceedings. 

Appellant
sought to obtain a loan on the property in 1999 and realized the mortgage and
note to Ely Place were still outstanding.  She brought suit in Kershaw County, seeking to have the mortgage and note declared null and void due to fraud. 
The trial court dismissed the case due to the expiration of the applicable
statute of limitations.  Appellant filed an appeal to this court, which
affirmed the dismissal in Diablita, Inc. v. Ely Place Nominees, Op. No.
2001-UP-517 (S.C. Ct. App. filed November 27, 2001).

Prior
to the divorce hearing, Diablita deeded the property to Appellant individually.
 The Final Judgment of Dissolution of Marriage was entered in Florida in 2000. 
The divorce decree awarded possession of the Kershaw County property to
Appellant but did not address the indebtedness in any manner.  Additionally,
the divorce decree affirmed the antenuptial agreement signed by the parties and
stated that any personal items not specifically addressed by the decree shall
be the property of the party in possession and control of the item. 

In 2002, Ely Place assigned the note and mortgage to Respondent. 
He commenced this action for foreclosure in 2003.  Prior to the hearing on the
action in 2005, Appellant moved to dismiss for lack of subject matter
jurisdiction.  The Master denied the motion.  The Master later issued a
Master’s Report and Judgment of Foreclosure and Sale without mentioning the
jurisdictional issue. 

Appellant filed an appeal from the denial of her motion to
dismiss.  The appeal was dismissed by this court as interlocutory and not
immediately appealable.  Appellant then filed a motion pursuant to Rule
60(b)(4), SCRCP, seeking an order setting aside the judgment and sale for lack
of subject matter jurisdiction.  The Master denied the motion and this appeal
followed. 

STANDARD OF REVIEW

Whether to grant or
deny a motion under Rule 60(b), SCRCP, is within the sound discretion of the
judge.  Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992). 
Our standard of review, therefore, is limited to determining whether the Master
committed an abuse of discretion.  BB&T v. Taylor, 369 S.C. 548,
551, 633 S.E.2d 501, 502-03 (2006).  An abuse of discretion occurs when the
judge issuing the order was controlled by an error of law or the order is based
on factual conclusions that are without evidentiary support.  Tri-County Ice
& Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782
(1990).

LAW/ANALYSIS

Appellant maintains
the Master erred in ruling he had subject matter jurisdiction to hear the
foreclosure action.  She contends the Florida Family Court that heard the
divorce action retained exclusive jurisdiction over the parties and their
property.  We disagree.

“Subject
matter jurisdiction refers to the court’s ‘power to hear and determine cases of
the general class to which the proceedings in question belong.’”  Watson v.
Watson, 319 S.C. 92, 93, 460 S.E.2d 394, 395 (1995) (quoting Dove v.
Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994)).  The
Master-in-Equity is considered a division of the circuit court and obtains
jurisdiction through an order of reference from the circuit court.  See S.C. Code Ann. § 14-11-15 (Supp. 2006); Rule 53, SCRCP.  A master would then
have subject matter jurisdiction over a properly referred foreclosure action.  See Wachovia Bank of South Carolina, N.A. v. Player, 341 S.C. 424, 427, 535
S.E.2d 128, 129 (2000).

The
Florida Family Court was endowed with the jurisdiction to decide issues related
to the marital property of the parties and the equitable division of that
property.  See Fla. Stat. Ann. § 61.075.  The Florida Court exercised
this jurisdiction in approving the antenuptial agreement signed by the parties
and in specifically allocating to each party the property individually titled
in his or her name and the personal property he or she controlled. 

Assuming
the Florida court had the power to determine issues related to the note and
mortgage on the property, neither party raised the issues, and the Florida court did not address the debt in its divorce decree.  The sole determination by
the Florida court would have been to determine to which party the property and
any interest in Diablita or Ely Place belonged.  Cf. Davis v.
Dieujuste, 496 So.2d 806 (Fla. 1986).  The Florida court upheld the
antenuptial agreement which, when applied in this case, resulted in the Kershaw County property being distributed to Appellant and Respondent retaining whatever
interest he may have had in Ely Place.  There were no further issues related to
the property for the Florida court to determine.  Additionally, the Florida divorce action would not have been an appropriate forum for a foreclosure action to
occur because Ely Place held the note and mortgage, and it was not a party to
the divorce action.  As a result, the divorce decree did not eliminate the
third-party debt to Ely Place, and res judicata would not apply
to prevent a foreclosure in South Carolina.  See, e.g., Florida Bar
v. Rodriguez, 959 So.2d 150, 158 (Fla. 2007) (requiring “(1) identity of
the thing sued for; (2) identity of the cause of action; (3) identity of
persons and parties to the action; and (4) ‘identity of quality in persons for
or against whom claim is made.’”).  Moreover, under Florida law, a suit seeking
transfer of title to real estate is considered to be quasi in rem and must be
brought in the county where the land is situated.  See Goedmakers v.
Goedmakers, 520 So.2d 575 (Fla. 1988).  Although a mortgage does not
transfer title, it subjects the title to a lien, and a successful foreclosure
would transfer legal title to the subject property.  Thus, the Florida divorce court did not have jurisdiction to entertain an action to foreclose or
invalidate the mortgage lien in question.  See Hammond v. DSY
Developers, LLC, 951 So.2d 985, 988-89 (Fla. Dist. Ct. App. 2007); Ocean
Bank v. State Dept. of Financial Services, 902 So.2d 833, 835 (Fla. Dist. Ct. App. 2005). 

Even
though the Florida court retained jurisdiction to enforce the divorce decree,
this would extend only to those issues arising under the divorce decree.  The
issues would relate to the possession of the property and not the validity of
the note and mortgage assumed by Appellant with the allocation of the
property.  In addition, the Florida Family Court would not have jurisdiction
over Ely Place as it was a separate entity from Respondent and not a party in
the Florida action. 

Accordingly,
the divorce proceedings would not act as a bar to the South Carolina court’s
having jurisdiction over the foreclosure action.  Because Appellant does not
dispute the efficacy of the referral to the Master, the Master clearly had
subject matter jurisdiction to hear the foreclosure action. 

CONCLUSION

We
find the Master had subject matter jurisdiction to hear the foreclosure
action.  Therefore, the order of the Master denying Appellant’s Rule 60(b)(4)
motion is

AFFIRMED.

HUFF
AND PIEPER, JJ., and CURETON, AJ., concur.