Condell v. Fitzgerald

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Marsha K. Condell (f/k/a Fitzgerald),       
Respondent,

v.

Alexander Richard Fitzgerald, II,       
Appellant.

Appeal From Lexington County

Richard W. Chewning, III, Family Court
Judge

Unpublished Opinion No. 2003-UP-724

Submitted October 10, 2003 – Filed December
15, 2003

AFFIRMED

G. Robin Alley, of Columbia, for Appellant.

J. Mark Taylor, C. Vance Stricklin, Jr., and M. Ronald McMahan,
Jr., all of West Columbia, for Respondent.

PER CURIAM:  Alexander Fitzgerald (Husband)
appeals the family court’s order holding him in contempt for his failure to
comply with certain provisions of the divorce decree.  We affirm. [1]

FACTS/PROCEDURAL HISTORY

Marsha Condell (Wife) brought this contempt action
against Husband alleging he failed to make mortgage and tax payments on the
marital home pending the home’s sale as required by the order for separate maintenance
and support which was incorporated into the couple’s divorce decree.  These
payments were to be an incident of support to Wife.  Pursuant to the order,
Wife was to receive the net proceeds from the home’s sale.  Wife alleged Husband’s
conduct forced her to sell the home at a reduced price to avoid bankruptcy,
a deficiency judgment, and damage to her credit rating.  In addition to a finding
of contempt, Wife sought compensation for her lost proceeds.

During a hearing on the matter, Husband conceded he
had failed to pay the mortgage payments and taxes following his compliance with
an earlier contempt order in 2001.  He explained that he stayed in the marital
home until going to jail for 32 days pursuant to a second contempt order regarding
his failure to make the mortgage and tax payments.  

The family court held Husband in willful contempt for
failing to pay the mortgage payments and taxes prior to the home’s sale.  The
court sentenced husband to six months in jail suspended upon his payment to
Wife of $47,408.46, representing the mortgage and tax payments he failed to
make, Wife’s attorney’s fees associated with an earlier contempt proceeding,
and Wife’s attorney’s fees for the instant contempt proceeding.

LAW/ANALYSIS

Husband argues the family court erred in holding him
in contempt.  We disagree.

“Contempt results from the willful disobedience
of a court order.”  Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d
125, 129 (1989).  To sustain a finding of contempt, the record must “clearly
and specifically” exhibit the contemptuous conduct.  Id.  An appellate
court will reverse the family court’s contempt ruling only if it lacks evidentiary
support or constitutes an abuse of discretion.  Dale v. Dale, 341 S.C.
516, 520, 534 S.E.2d 705, 707 (Ct. App. 2000).

Here, Husband’s own testimony clearly supports the
trial court’s finding that he willfully disobeyed the divorce decree by failing
to make the mortgage and tax payments.  Thus we find no basis to reverse the
family court’s order. 

Husband devotes a substantial portion of his brief
to challenging Wife’s entitlement to the compensatory damages awarded.  Among
other things, he contends because the sale price of the home was less than the
sums due on the note and taxes and because the bank agreed not to pursue a deficiency
judgment, Wife suffered no loss.  However, because these arguments are extraneous
to the sole question on appeal — whether Husband was in contempt of the court
order — we do not address them.  See Rule 208(b)(1)(B), SCACR (“Ordinarily,
no point will be considered which is not set forth in the statement of the issues
on appeal.”).

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.

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