Smith v. Smith

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

Lucinda H.
Smith, Appellant,

v.

Randy Smith, Respondent.

Appeal From Union County

Hon. Rochelle Y. Williamson, Family Court
Judge

Opinion No. 2008-UP-581

Submitted October 1, 2008 – Filed October
15, 2008

AFFIRMED

David Michael Collins, Jr., and John C. Williams, Jr., both of Spartanburg, for Appellant.

Richard H. Rhodes, of Spartanburg, for Respondent.

PER CURIAM: This
appeal arises after the family court required Randy Smith (Husband) pay
fourteen percent of his military retirement pension to his ex-wife, Lucinda
Smith (Wife).  Husband argues the family court erred 1) by modifying its prior
order which equitably divided the parties’ marital assets and debts including a
portion of his military retirement; 2) in modifying its prior order without
taking testimony or receiving any evidence from the parties; 3) in awarding Wife
attorney’s fees without taking any testimony or receiving any evidence on the
issue or making any findings of fact or conclusions of law.  We affirm.[1]

1.  The family court did not
err in requiring Husband to pay Wife fourteen percent of his military
retirement.  Specifically, we find the family court retained jurisdiction over the
case for the purpose of signing and filing a  Qualified Domestic Relations
Order (QDRO), and in ordering Husband to pay fourteen percent of his military
retirement, the family court was merely enforcing, not modifying, its prior
order.  See Cannon v. Cannon, 275 S.C. 424, 425, 272 S.E.2d 179,
179-80 (1980) (holding the family court had authority to enforce its previous order,
and the petition from which the new order arose was “merely a means of
obtaining enforcement, rather than modification, of the original
decree.”) (emphasis added); Dale v. Dale, 341 S.C. 516, 521, 534 S.E.2d
705, 707 (Ct. App. 2000) (affirming family court’s finding husband in contempt
where husband clearly violated an equitable apportionment decree); Burns v.
Burns, 323 S.C. 45, 48-49, 448 S.E.2d 571, 573 (Ct. App. 1994), aff’d, 314
S.C. 445, 445 S.E.2d 449 (1994)  (finding the family court did not abuse its
discretion in holding husband in contempt of court for failure to honor
settlement agreement provisions to pay credit card indebtedness of parties and
second mortgage).  We further find no testimony or additional evidence beyond
the pleading was required because in Husband’s answer and counterclaim, he
admitted retiring from military service on December 31, 2004, and thereafter
receiving $1,708.00 in monthly retirement.  See Ball v. Ball, 312
S.C. 31, 430 S.E.2d 533 (Ct. App. 1993) (holding non-vested, unvalued military
pensions are marital property).   

2.  We find no error in the
family court’s order requiring Husband pay $500 of Wife’s attorney’s fees where
Husband failed to comply with
the family court’s initial order
requiring he file a QDRO and did not pay Wife any portion of his retirement
pension beginning in January of 2005.  In order to receive her portion of
Husband’s retirement, Wife was forced to bring an action and received
beneficial results.  Furthermore, Husband’s current financial situation allows
him to pay $500 in Wife’s attorney’s fees given he receives $1,708.00 in
monthly retirement.  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 in violation of Rule 26(a), SCRFC, the appellate court ‘may remand the
matter to the trial court or, where the record is sufficient, make its own
findings of fact in accordance with the preponderance of the evidence.’”). 

AFFIRMED.

SHORT, THOMAS,
and PIEPER, JJ., concur.

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