Young v. Young

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

George Robert Young, Respondent,

v.

Kathryn Lou Young, Appellant.

Appellate Case No. 2010-180306

Appeal From Bamberg County
Dale Moore Gable, Family Court Judge

Opinion No. 2012-UP-538
Heard September 12, 2012 – Filed October 3, 2012

AFFIRMED AS MODIFIED

Michael C. Tanner and Rose MacLeod Osborne of
Michael Tanner, LLC, of Bamberg, for Appellant
Kathryn Lou Young.

R. Steven Chandler of R. Steven Chandler, LLC, of
Bamberg, for Respondent George Robert Young.

CURETON, A.J.: Kathryn Lou Young (Wife) appeals the family court's order
holding George Robert Young (Husband) in contempt for failing to pay her an
amount specified in the couple's divorce decree. Wife argues the family court
erred by (1) inserting language in its order that modified the amount she was
entitled to receive from Husband's savings and investment plan (the Plan) and (2)
failing to take judicial notice of evidence showing economic changes after entry of
the parties' divorce decree. We affirm as modified.

"In appeals from the family court, [appellate courts] review[] factual and legal
issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011). "[W]hile retaining the authority to make our own findings of fact, we
recognize the superior position of the family court judge in making credibility
determinations." Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011).
The burden is upon the appellant to convince the appellate court that the
preponderance of the evidence is against the family court's findings. Id. "Stated
differently, de novo review neither relieves an appellant of demonstrating error nor
requires us to ignore the findings of the family court." Id. at 388-89, 709 S.E.2d at
654.

First, Wife asserts the family court erred in reducing the money payable to her
from the Plan by inserting the "gains and losses" language in its order. We agree.

Generally, a contempt hearing focuses on the petitioner's establishment of a prima
facie case of contempt and the respondent's assertion of defenses. Rule 14(g),
SCRFC. "[U]pon proper showing and finding of willful contempt, [a family court]
may award other appropriate relief properly requested by a party to the
proceeding." Id.

Nonetheless, a family court's order for the "distribution of marital property shall be
a final order not subject to modification except by appeal or remand following
proper appeal." S.C. Code Ann. § 20-3-620(C) (Supp. 2011). Exceptions to this
rule include the family court's authority to reserve jurisdiction to modify its order
and authority, upon a party's motion or the court's own initiative, to correct clerical
errors at any time. Hayes v. Hayes, 312 S.C. 141, 144, 439 S.E.2d 305, 307 (Ct.
App. 1993); Rule 60(a), SCRCP. In addition, within ten days after receiving
written notice of entry of the family court's order, a party may serve a motion for
the family court to alter or amend its judgment. Rule 59(e), SCRCP. Furthermore,
within one year of a judgment's entry, a party may seek relief on such grounds as
"(1) mistake, inadvertence, surprise, or excusable neglect; [or] (2) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b)." Rule 60(b), SCRCP.
We find no exception in this matter to the finality provision of section 20-3-620.
To the extent the family court modified the divorce decree in this contempt action,
it exceeded its authority. See Hayes, 312 S.C. at 144, 439 S.E.2d at 307 (holding
absent statutory authority or a reservation of jurisdiction, the family court may not
modify its prior orders). In this matter, the divorce decree awarded Wife "the sum
of $61,184.00 representing her portion of [the] Plan." At no point prior to the
contempt order was Wife's share of the Plan subject to gains or losses. Therefore,
the contempt order modified the divorce decree by making Wife's portion of the
Plan subject to "gains or losses from the date of the Decree."

No authority existed for this modification. Judge Wylie made no reservation of
jurisdiction in the divorce decree. Judge Gable held "the Agreement [wa]s
unambiguous and must be enforced as written" and its "language [wa]s clear and
susceptible of only one interpretation." As Wife pointed out at the contempt
hearing, Husband neither appealed nor moved the family court pursuant to Rule
59(e) or Rule 60 to modify the divorce decree. Consequently, neither statute nor
reservation of jurisdiction allowed the family court to modify the terms of the
divorce decree.

As a result, the family court lacked jurisdiction to modify the divorce decree.
Therefore, we affirm the family court's contempt order but modify its language to
strike "plus gains or losses from the date of the Decree." Because a QDRO has
already been executed distributing only $48,562.00 to Wife, we further instruct
Husband to (1) prepare a second QDRO distributing an additional $12,622.00 to
Wife or, in the alternative, (2) pay Wife the sum of $12,622.00. In either event,
Husband shall comply within forty-five days from the date of this court's decision.

Having stricken the "plus gains or losses" language from the family court's order,
we need not address Wife's remaining argument. See Futch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an
appellate court need not review remaining issues when its determination of a prior
issue is dispositive of the appeal).

AFFIRMED AS MODIFIED.

HUFF and GEATHERS, JJ., concur.