Robert Gillmann v. Beth Gillmann

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

Robert W. Gillmann, Respondent,

v.

Beth Dixon Gillmann, Appellant.

Appellate Case No. 2023-000437

Appeal From Lexington County
W. Greg Seigler, Family Court Judge

Unpublished Opinion No. 2025-UP-224
Heard March 11, 2025 – Filed July 2, 2025

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Nancy A. Lipski, of Nancy A. Lipski, LLC, of
Lexington, for Appellant.

Max Nathan Pickelsimer, of Rock Hill, for Respondent.

PER CURIAM: In this appeal from a declaratory judgment action, Beth
Gillmann (Wife) appeals the family court's order granting Robert Gillmann's
(Husband's) motions to dismiss her first and second counterclaims and awarding
Husband $9,271.69 after equitably offsetting the amount Husband owed her for
attorney's fees and property division with the amount she owed Husband for his
excess alimony payments. Wife argues the family court erred in dismissing her
first counterclaim because this court did not have subject matter jurisdiction to
modify the original permanent periodic alimony award to a fixed term alimony
award in Gillmann v. Gillmann.1 She also argues the family court erred in
dismissing her second counterclaim in which she contended the Gillmann I
alimony judgment was void ab initio because this court rendered it without federal
or state constitutional due process. She further argues that even if the Gillmann I
alimony judgment was valid, the family court exceeded its mandate by awarding
Husband judgment interest and equitable setoff in the declaratory judgment action,
did not correctly apply the law in awarding judgment interest to Husband, and did
not correctly apply the law in allowing Husband's excess alimony payments to
offset the attorney's fees and property division award he owed her since 2015. We
affirm the family court's order as to the grant of Husband's motions to dismiss
Wife's first and second counterclaims and reverse and remand the award of
$9,271.69 to Husband for recalculation of the post-judgment interest owed by each
party.

1. We hold the family court did not err by dismissing Wife's first counterclaim.
See Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) ("[T]he
proper standard of review in family court matters is de novo . . . ."). In her first
counterclaim, Wife alleged this court erred in modifying her permanent periodic
alimony to fixed term alimony in Gillmann I because the family court had
exclusive jurisdiction over the modification of orders of spousal support. We hold
this court had subject matter jurisdiction to modify the alimony awarded Wife from
permanent periodic alimony to fixed term alimony and to apply the modification
retroactively. See S.C. Code Ann. § 14-8-200(a) (2017) ("Except as limited by
subsection (b) and Section 14-8-260 [of the South Carolina Code (2017)], the court
[of appeals] has jurisdiction over any case in which an appeal is taken from an
order, judgment, or decree of the . . . family court . . . ."); S.C. Code Ann.
§ 63-3-630(A) (2010) ("Any appeal from an order, judgment, or decree of the
family court shall be taken in the manner provided by the South Carolina Appellate
Court Rules. The right to appeal must be governed by the same rules, practices,

1
(Gillmann I) 2019-UP-172 (S.C. Ct. App. filed May 15, 2019) (finding the family
court erred in awarding Wife permanent periodic alimony, awarding Wife fixed
term alimony of $2,000 per month for eighteen months from the date of divorce,
holding Husband's alimony obligation retroactively terminated on February 9,
2018, and finding that Husband was entitled to full reimbursement for alimony
payments paid past that date).
and procedures that govern appeals from the circuit court."); see also Johnson v.
S.C. Dep't of Prob., Parole, & Pardon Servs., 372 S.C. 279, 284, 641 S.E.2d 895,
897 (2007) ("[S]ubject matter jurisdiction refers to a court's constitutional or
statutory power to adjudicate a case."); id. ("[S]ubject matter jurisdiction is the
power of a court to hear and determine cases of the general class to which the
proceedings in question belong." (quoting State v. Gentry, 363 S.C. 93, 100, 610
S.E.2d 494, 498 (2005))); Rule 220(a), SCACR ("The [appellate] court may affirm,
reverse, or modify the decision below or remand all or any issues for further
proceedings."). We reject Wife's argument that sections 63-3-530 2 and
20-3-170(A)3 divest this court of subject matter jurisdiction to modify an award of
alimony in family court cases appealed to this court. Our appellate courts have
modified alimony without remanding the case to the family court. See Major v.
Major, 277 S.C. 318, 320-21, 286 S.E.2d 666, 668 (1982) (reversing the family
court's denial of alimony and directing the husband to pay the wife $150 per month
in alimony); Holmes v. Holmes, 399 S.C. 499, 506-07, 732 S.E.2d 213, 217 (Ct.
App. 2012) (affirming the family court's order requiring Husband to pay Wife
alimony but reducing Husband's monthly alimony payments upon finding Husband
demonstrated an unanticipated, substantial change in circumstances); Christy v.
Christy, 317 S.C. 145, 148, 452 S.E.2d 1, 2-3 (Ct. App. 1994) (noting the wife's
award of $2,500 per month in permanent periodic alimony was modified to $1,750
per month in a previous opinion). In Christy, this court also stated the termination
of an alimony payment can apply retroactively when the appellate court so directs.
See id. at 152, 452 S.E.2d at 4-5. Accordingly, we hold this court had subject
matter jurisdiction in Gillmann I to modify the alimony awarded to Wife and to
terminate alimony as of February 9, 2018.

2
S.C. Code Ann. § 63-3-530 (A)(2) (2010 & Supp. 2024) ("The family court has
exclusive jurisdiction . . . to hear and determine actions for divorce a vinculo
matrimonii, separate support and maintenance, legal separation, and in other
marital litigation between the parties . . . .").
3
S.C. Code Ann. § 20-3-170(A) (2014) ("Whenever any husband or wife, pursuant
to a judgment of divorce from the bonds of matrimony, has been required to make
his or her spouse any periodic payments of alimony and the circumstances of the
parties or the financial ability of the spouse making the periodic payments shall
have changed since the rendition of such judgment, either party may apply to the
court which rendered the judgment for an order and judgment decreasing or
increasing the amount of such alimony payments or terminating such
payments . . . .")
2. We hold the family court did not err by dismissing Wife's second counterclaim.
See Stoney, 422 S.C. at 596, 813 S.E.2d at 487 ("[T]he proper standard of review in
family court matters is de novo . . . ."). In her second counterclaim, Wife alleged
this court deprived her of due process when it rendered the Gillmann I opinion.
We hold neither this court nor our supreme court violated Wife's right to due
process in Gillmann I. See Kurschner v. City of Camden Plan. Comm'n, 376 S.C.
165, 171, 656 S.E.2d 346, 350 (2008) ("Procedural due process imposes
constraints on governmental decisions which deprive individuals of liberty or
property interests within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment of the United States Constitution."); id. ("The fundamental
requirements of due process include notice, an opportunity to be heard in a
meaningful way, and judicial review."); S.C. Dep't of Soc. Servs. v. Wilson, 352
S.C. 445, 452, 574 S.E.2d 730, 733 (2002) ("[D]ue process is flexible and calls for
such procedural protections as the particular situation demands." (alteration in
original) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))). This court had
the appellate jurisdiction and authority to modify the permanent periodic alimony
the family court awarded Wife to fixed term alimony in Gillmann I. See Rule
220(a), SCACR ("The [appellate] court may affirm, reverse, or modify the decision
below or remand all or any issues for further proceedings."). After this court filed
its opinion in Gillmann I, Wife filed a petition for rehearing, which this court
denied. Wife then filed a petition for a writ of certiorari, which our supreme court
denied. Wife made arguments concerning fundamental fairness in her petition for
rehearing and her petition for a writ of certiorari. These arguments equate to the
due process arguments she raised to the family court and on appeal. See Hipp v.
S.C. Dep't of Motor Vehicles, 381 S.C. 323, 325, 673 S.E.2d 416, 417 (2009)
("Due process is violated when a party is denied fundamental fairness."). But Wife
was afforded the opportunity to be heard and proper judicial review of her petition
for rehearing and her petition for a writ of certiorari, which included her due
process argument. See Bundy v. Shirley, 412 S.C. 292, 302-03, 772 S.E.2d 163,
169 (2015) (finding no denial of the appellant's due process rights when the court
of appeals denied his petition for rehearing prior to reviewing his reply to the
respondent's return because the court issued an order stating it declined to alter its
decision after reviewing the reply, and therefore appellant "was afforded an
opportunity to be heard and received judicial review of his reply"). Thus, we hold
our appellate courts did not deprive Wife of the right to due process in Gillmann I.
Accordingly, we hold the family court did not err in granting Husband's motion to
dismiss Wife's second counterclaim.
3. We hold the family court did not err in awarding Husband post-judgment
interest on his excess alimony payments; however, we hold the family court erred
in determining the accrual date of the interest. Initially, we hold the family court
could not award Husband pre-judgment interest on his excess alimony payments
because he failed to ask for such relief in his pleadings. See S.C. Code Ann.
§ 34-31-20 (B) (2020) ("A money decree or judgment of a court enrolled or
entered must draw interest according to law. The legal rate of interest is equal to
the prime rate as listed in the first edition of the Wall Street Journal published for
each calendar year for which the damages are awarded, plus four percentage
points, compounded annually."); Dixie Bell, Inc. v. Redd, 376 S.C. 361, 368, 656
S.E.2d 765, 768-69 (Ct. App. 2007) ("This [c]ourt requires parties to plead for
pre-judgment interest in order for it to be recovered. If no request for
pre-judgment interest is made in the pleadings, it cannot be recovered on appeal."
(citations omitted) (quoting Tilley v. Pacesetter Corp., 355 S.C. 361, 375-76, 585
S.E.2d 292, 299 (2003))). We hold the family court could award Husband
post-judgment interest on his excess alimony payments because the amount owed
was a fixed award as of the filing of this court's opinion in Gillmann I on May 15,
2019. See Calhoun v. Calhoun, 339 S.C. 96, 102, 529 S.E.2d 14, 17 (2000)
("Where the law allows interest as a matter of course, it is unnecessary to make
demand for it in the pleadings"); Casey v. Casey, 311 S.C. 243, 245-46, 428 S.E.2d
714, 716 (1993) ("[F]ixed awards of money for equitable distribution shall accrue
interest at the post-judgment rate from the date of the judgment . . . ."). We hold
the family court could award post-judgment interest even though this court did not
include such an award in its Gillmann I opinion because post-judgment interest is
awarded as a matter of course. See Calhoun, 339 S.C. at 102, 529 S.E.2d at 18
("While pre-judgment interest must be pled in order to be recovered, . . . this Court
has recognized that a claimant is entitled to interest from the date of the rendition
of the verdict, or post-judgment interest, as a matter of course."). This court's
opinion in Gillmann I modified Husband's alimony from permanent periodic to
fixed term and indicated his alimony payments terminated retroactively as of
February 9, 2018. Although this court did not state the exact amount of excess
alimony paid by Husband in Gillmann I, the amount of excess alimony was a sum
certain at the time this court filed its opinion in Gillmann I because the parties
knew the amount of alimony that Husband paid each month since February 8,
2018. Accordingly, we hold the family court did not err in awarding Husband
post-judgment interest on the $31,000 in excess alimony.

However, we hold the family court erred in determining the accrual date for
post-judgment on Husband's excessive alimony payments was February 8, 2018,
because no final judgment requiring Wife to reimburse Husband for excess
alimony payments was in place on that date. See Babb v. Rothrock, 310 S.C. 350,
354, 426 S.E.2d 789, 792 (1993) ("If, after appeal, a further determination by the
trial court is necessary in order to fix the amount of an award, the award will not
draw interest until the determination is made."). We hold the post-judgment
interest on Husband's excess alimony payments began accruing from May 15,
2019, the date this court filed its opinion in Gillmann I, and continued accruing to
the present. See Hopkins v. Hopkins, 343 S.C. 301, 307, 540 S.E.2d 454, 458
(2000) (reversing the family court's holding that the mother did not need to
reimburse the father for child support payments made after the children turned
eighteen but finding the father was not entitled to post-judgment interest because
he had received no money judgment prior to the court's opinion).

Additionally, we hold post-judgment interest on the attorney's fees and property
division award Husband owed Wife began accruing on November 24, 2015, when
the family court entered the final order in the parties' divorce action, and continued
accruing to the present. See Calhoun, 339 S.C. at 104, 529 S.E.2d at 19 ("[W]hen
a money judgment is finalized, whether in a lower court or in an appellate court,
the interest on that amount, whether it has been modified upward or downward or
remains the same, runs from the date of the original judgment."). It appears the
family court based its calculation of the post-judgment interest Husband owed
Wife on Husband's calculation of the equitable setoff. In Husband's calculation,
the $19,524.23 he owed Wife in attorney's fees and from the property division
award stopped accruing interest when this court retroactively terminated Husband's
alimony payments on February 8, 2018. We hold the $19,524.23 continued to
accrue interest to the present because the retroactive termination of Husband's
alimony had no effect on the accrual of interest on the attorney's fees and property
division award he owed Wife. Accordingly, we reverse the family court's award of
$9,271.69 to Husband and remand for a recalculation of the amounts of
post-judgment interest Husband owed Wife for the attorney's fees and property
distribution award accruing from November 24, 2015, to the present and that Wife
owed Husband for his excess alimony payments accruing from May 15, 2019, to
the present.

4. We hold the family court did not err in finding the amount Husband owed in
attorney's fees and for the property distribution award with interest was equitably
offset by the excess alimony payments, with interest, that Wife owed Husband.
See Stoney, 422 S.C. at 596, 813 S.E.2d at 487 ("[T]he proper standard of review in
family court matters is de novo . . . ."); Ex parte Dibble, 279 S.C. 592, 595, 310
S.E.2d 440, 442 (Ct. App. 1983) (stating that "[c]ourts have the inherent power to
do all things reasonably necessary to insure that just results are reached to the
fullest extent possible"). We hold the family court did not err in allowing equitable
setoff notwithstanding Wife's argument that it would prevent Husband from paying
her attorney's fee award directly to her attorney because attorney's fees are paid to
the litigant, not to the attorney. See S.C. Code Ann. § 20-3-120 (2014) ("In every
divorce action from the bonds of matrimony either party may in his or her
complaint or answer or by petition pray for the allowance to him or her of alimony
and suit money and for the allowance of such alimony and suit money pendente
lite. If such claim shall appear well-founded the court shall allow a reasonable sum
therefor."); Louthian & Merritt, P. A. v. Davis, 272 S.C. 330, 333, 251 S.E.2d 757,
758 (1979) ("[U]nder the plain terms of Section 20-3-120, if an award of attorneys'
fees is made in an action for divorce, the award must be made to the [receiving
party]. Section 20-3-120 does not authorize the lower court, in an action for
divorce, to make the allowance directly to the [receiving party's] attorney.");
Foreman v. Foreman, 280 S.C. 461, 466, 313 S.E.2d 312, 315 (Ct. App. 1984)
(remanding the award of attorney's fees directly to the wife's attorney to the trial
court to "consider whether there is reason to require payment of attorney fees to
[the wife's] attorney directly" and stating " if not, the award shall be made to [the
wife]"). Further, section 20-3-145 does not support the payment of attorney's fees
directly to the receiving party's attorney as Wife suggests. See S.C. Code Ann. §
20-3-145 (2014) ("In any divorce action any attorney fee awarded by the court
shall constitute a lien on any property owned by the person ordered to pay the
attorney fee and such attorney fee shall be paid to the estate of the person entitled
to receive it under the order if such person dies during the pendency of the divorce
action."). The statute states that the attorney's fees should be paid to the estate of
the person entitled to the fees if the person dies during the action's pendency, not to
the person's attorney. See id. Therefore, this statute does not support Wife's
argument that the attorney's fees cannot be part of the equitable setoff because
equitable setoff would prevent Husband from paying the attorney's fees directly to
Wife's attorney. Accordingly, we hold the fact that the $19,524.23 Husband owed
Wife included $10,000 of attorney's fees did not prevent the family court from
allowing equitable setoff.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS, MCDONALD, and VINSON, JJ., concur.