Vitale v. Vitale

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

Shay Watson Vitale, Respondent,

v.

Jon Michael Vitale, Appellant.

Appellate Case No. 2017-001079

Appeal From York County
A. E. Morehead, III, Family Court Judge

Unpublished Opinion No. 2019-UP-068
Submitted January 1, 2019 – Filed February 13, 2019

AFFIRMED

Thomas Franklin McDow, IV, and Erin K. Urquhart,
both of McDow and Urquhart, LLC, of Rock Hill, for
Appellant.

Charles D. Lee, III, of McLaren & Lee, of Brevard,
North Carolina; and James Thomas McLaren, of
McLaren & Lee, of Columbia, for Respondent.

PER CURIAM: Jon Michael Vitale (Father) appeals the family court's order
dismissing his rule to show cause. On appeal, Father argues the family court erred
by (1) failing to find Shaw Watson Vitale (Mother) in contempt of court for
violating the terms of the final divorce order, and (2) awarding Mother attorney's
fees and costs. We affirm1 pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to whether the family court erred in finding Mother was not in contempt for
violating final divorce order: Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d
666, 667 (2011) ("In appeals from the family court, [the appellate c]ourt reviews
factual and legal issues de novo."); Stoney v. Stoney, 422 S.C. 593, 595, 813 S.E.2d
486, 487 (2018) ("[T]his standard does not abrogate two long-standing principles
still recognized by [our] courts during the de novo review process: (1) [the family
court] is in a superior position to assess witness credibility, and (2) an appellant has
the burden of showing the appellate court that the preponderance of the evidence is
against the finding of the [family court]."); Ebert v. Ebert, 320 S.C. 331, 338, 465
S.E.2d 121, 125 (Ct. App. 1995) ("An ambiguous contract is one capable of being
understood in more ways than one, an agreement obscure in meaning through
indefiniteness of expression, or having a double meaning."); Durlach v. Durlach,
359 S.C. 64, 71, 596 S.E.2d 908, 912 (2004) ("Civil contempt must be proved by
clear and convincing evidence."); Abate v. Abate, 377 S.C. 548, 553, 660 S.E.2d
515, 518 ("A party seeking a contempt finding for violation of a court order must
show the order's existence and facts establishing the other party did not comply
with the order."); Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498
(1973) ("One may not be convicted of contempt for violating a court order which
fails to tell him in definite terms what he must do. The language of the commands
must be clear and certain rather than implied."); Smith v. Smith, 359 S.C. 393, 396-
97, 597 S.E.2d 188, 189-90 (Ct. App. 2004) (affirming the family court's ruling
declining to hold a party in contempt for violating a court order when the language
in the order was ambiguous).

2. As to whether the family court erred in awarding Mother $5,000 in attorney's
fees and costs: Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004)
("[A]ttorney's fees may be assessed against a party in an action brought in the
family court."); E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816
(1992) ("In determining whether an attorney's fee should be awarded, the following
factors should be considered: (1) the party's ability to pay [her] own attorney's fee;
(2) beneficial results obtained by the attorney; (3) the parties' respective financial
conditions; (4) effect of the attorney's fee on each party's standard of living.");
Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) (finding
the reasonableness of attorney's fees should be determined by the following

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
factors: "(1) the nature, extent, and difficulty of the case; (2) the time necessarily
devoted to the case; (3) professional standing of counsel; (4) contingency of
compensation; (5) beneficial results obtained; (6) customary legal fees for similar
services"); Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997)
("[O]n appeal, an award for attorney's fees will be affirmed so long as sufficient
evidence in the record supports each factor."); Griffith v. Griffith, 332 S.C. 630,
646-47, 506 S.E.2d 526, 535 (Ct. App. 1998) ("[W]hen an order from the family
court is issued [without specific findings of fact to support the court's decision,] in
violation of Rule 26(a), SCRFC, the appellate court 'may remand the matter to the
[family] court or, whe[n] the record is sufficient, make its own findings of fact in
accordance with the preponderance of the evidence.'" (quoting Holcombe v.
Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)).

AFFIRMED.

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.