Frank Rish, Sr. v. Kathy Rish

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Frank James Rish, Sr., Respondent,

v.

Kathy Cotney Rish, Appellant.

Appellate Case No. 2019-000504

Appeal From Newberry County
Joseph C. Smithdeal, Family Court Judge

Opinion No. 5884
Submitted December 1, 2021 – Filed December 22, 2021

VACATED IN PART, AFFIRMED IN PART

Leslie Ragsdale Fisk, of Spartanburg, and J. Edwin
McDonnell, of Campobello, both for Appellant.

Christopher Paul Thompson, of Mayo, and Kenneth
Philip Shabel, of Kennedy & Brannon, P.A., of
Spartanburg, both for Respondent.

THOMAS, J: Frank James Rish, Sr. (Husband) filed this action in family court
against Kathy Cotney Rish (Wife) seeking to terminate or modify alimony. Wife
appeals the family court's order terminating alimony, arguing the court erred in
finding (1) the parties' 2003 divorce decree did not divest the court of the power to
modify alimony, (2) Wife waived the court's lack of jurisdiction by failing to
appeal a 2011 modification of alimony order, and (3) the court erred in denying her
motion to reconsider pursuant to Rule 59(e), SCRCP, or set aside as void pursuant
to Rule 60(b)(4), SCRCP. We vacate in part and affirm in part.

FACTS

The parties were married in 1972 and had two emancipated children at the time of
their divorce. The divorce decree, dated March 28, 2003, incorporated the parties'
agreement and required Husband to pay alimony of $650 per month "as periodic
alimony which is non-modifiable and will cease only at the death of [Wife] or
[Husband] or the remarriage of [Wife]."

By order dated June 7, 2011, the court reduced Husband's alimony obligation to
$550 per month. Wife did not appeal the 2011 order. In 2016, Husband filed this
action to modify and/or terminate alimony. At a hearing held April 16, 2018, Wife
argued the divorce decree made alimony non-modifiable. The court found the
2011 order modifying alimony was "law of the case" on the issue of modification
due to Wife's failure to appeal the order. By order filed May 4, 2018, the court
found Husband declared monthly income of $1,483 and Wife declared monthly
income of $1,709. The court also found both parties' declarations were lacking in
various areas, and both parties' testified their health had declined, and they had
received inheritances since the previous order. The court concluded Husband's
financial situation had substantially declined; thus, it terminated alimony.

Wife moved for reconsideration under Rule 59(e), SCRCP, and to void the order
under Rule 60(b)(4), SCRCP, arguing the 2011 modification order was void
because the divorce decree mandated alimony was non-modifiable except upon
either party's death or Wife's remarriage. Wife argued the order on appeal was
likewise void for lack of subject matter jurisdiction. Husband filed a return,
arguing that because Wife failed to appeal or file a motion to reconsider the 2011
order, Wife was barred from raising the court's subject matter jurisdiction by
"laches, estoppel, [and] undue prejudice." Husband also argued the court had
jurisdiction to modify alimony.

After a hearing, the court denied Wife's motion by order dated August 14, 2019.
The court found it had continuing jurisdiction to modify the divorce decree
because the decree did not "unambiguously deny the family court jurisdiction to
modify or terminate the alimony obligation." The court further found "[t]he
motion for reconsideration [as to Rule 60(b)(4), SCRCP,] was not filed within a
reasonable time and is therefore subject to the equitable doctrines of estoppel and
laches." Thus, the court denied the motion. This appeal followed.
STANDARD OF REVIEW

"The question of subject matter jurisdiction is a question of law for the court."
Hammer v. Hammer, 399 S.C. 100, 104–05, 730 S.E.2d 874, 876 (Ct. App. 2012)
(quoting Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524,
528 (Ct. App. 2009)). "In appeals from the family court, [the appellate court]
reviews factual and legal issues de novo." Simmons v. Simmons, 392 S.C. 412,
414, 709 S.E.2d 666, 667 (2011); see Singh v. Singh, 434 S.C. 223, 228, 863
S.E.2d 330, 332–33 (2021) (applying a de novo standard of review to the denial of
Rule 60(b), SCRCP, motions raising the legal question of the family court's
authority to delegate its jurisdiction to an arbitrator). "[A] reviewing court is
free to decide questions of law with no particular deference to the trial court."
Proctor v. Steedley, 398 S.C. 561, 573, 730 S.E.2d 357, 363 (Ct. App. 2012)
(footnote omitted).

LAW/ANALYSIS

Termination of Alimony

Wife maintains the family court erred in terminating alimony because it lacked
subject matter jurisdiction to modify or terminate alimony under the 2003 divorce
decree. We agree.

The divorce decree stated the periodic alimony would be "non-modifiable and will
cease only at the death of [Wife] or [Husband] or the remarriage of [Wife]." As
noted by Wife, any action taken by the family court with regard to agreements over
which it lacks subject matter jurisdiction is void. See Gainey v. Gainey, 382 S.C.
414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009) ("A judgment of a court without
subject matter jurisdiction is void . . . .). "Subject matter jurisdiction is 'the power
to hear and determine cases of the general class to which the proceedings in
question belong.'" Dove v. Gold Kist, Inc., 314 S.C. 235, 237–38, 442 S.E.2d 598,
600 (1994) (quoting Bank of Babylon v. Quirk, 472 A.2d 21, 22 (Conn. 1984)).
The family court derives its subject matter jurisdiction over divorces, including
alimony, from our legislature. S.C. Code Ann. § 63-3-530(A)(2)&(14) (2010)
("The family court has exclusive jurisdiction . . . to hear and determine actions for
divorce . . . [and] to order support of a spouse . . . ."); S.C. Code Ann. § 20-3-130
(2014) (providing the family court with the authority to award alimony).
In Moseley v. Mosier, our supreme court explained the family court also had
jurisdiction over contractual agreements to separate or divorce by stating,
"[J]urisdiction for all domestic matters, whether by decree or by agreement, will
vest in the family court. In all decrees entered after this decision, the parties may
contract concerning their property settlement and alimony, but the submitted
agreement must be approved by the family court." 279 S.C. 348, 353, 306 S.E.2d
624, 627 (1983); see S.C. Code Ann. § 20-3-690 (2014) ("The family courts of this
State have subject matter jurisdiction over all contracts relating to property which
is involved in a proceeding under this article and over the construction and
enforcement of those contracts.").

However, our statutory scheme provides a method for parties to remove the issue
of future modification of alimony from the family court's jurisdiction. "The parties
may agree in writing if properly approved by the court to make the payment of
alimony . . . nonmodifiable and not subject to subsequent modification by the
court." S.C. Code Ann. § 20-3-130(G) (2014). "[O]nce a settlement agreement is
approved by the family court, it may be enforced by the court's contempt powers
unless the settlement agreement expressly denies the court continuing jurisdiction."
Hammer v. Hammer, 399 S.C. 100, 106, 730 S.E.2d 874, 877 (Ct. App. 2012)
(citing Moseley, 279 S.C. at 353, 306 S.E.2d at 627). In Croom v. Croom, 305 S.C.
158, 159−61, 406 S.E.2d 381, 382−83 (Ct. App. 1991), this court found the family
court could not modify an alimony obligation because the court-adopted alimony
agreement provided "the terms and conditions of the agreement and any court
order approving it 'shall not be modifiable by the parties or any court without
written consent of the Husband and Wife.'"

In this case, the 2003 divorce decree did not "expressly deny" the family court
continuing jurisdiction. Thus, we look to this court's discussion in Degenhart v.
Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct. App. 2004). In Degenhart, this court
reviewed the parties' agreement and final divorce order, which read as follows:

Husband agrees to pay Wife alimony in the amount of
$2,500.00 per month payable on the 1st day of each
month beginning with the month of September, 1999 for
a period of the earlier of seven years or upon the
remarriage of Wife.

360 S.C. at 499, 602 S.E.2d at 97. The agreement also provided:
The provisions of this AGREEMENT shall not be
modified or changed except by mutual consent and
agreement of the parties expressed in writing.

Id.

The husband in Degenhart argued Croom did not apply because his agreement
lacked language specifically stating that the family court could not modify the
agreement. Id. at 501, 602 S.E.2d at 98. The court rejected the husband's
argument, finding the following:

While this agreement does not expressly state that the
family court cannot modify the agreement, it is clear and
specific about how the agreement can be modified, that
being "by mutual consent and agreement of the parties
expressed in writing." Because the family court "must
enforce an unambiguous contract according to its terms
regardless of its wisdom or folly, apparent
unreasonableness, or the parties' failure to guard their
rights carefully," we see no reason to require "magic
words" for an unambiguous agreement to gain efficacy.
efficacy. Lindsay v. Lindsay, 328 S.C. 329, 340, 491
S.E.2d 583, 589 (Ct. App. 1997). The agreement here,
by stating that its terms "shall not be modified or changed
except by mutual consent," clearly denies the family
court the jurisdiction to modify the agreement by its own
authority or at the behest of only one of the parties.

Id.

We find it is likewise clear and specific in this case how alimony can be
modified⸺by the death of either party or by Wife's remarriage ⸺otherwise, it is
non-modifiable. As this court found in Degenhart, no magic language is required
as long as the agreement is clear and specific. Accordingly, we find the family
court lacked subject matter jurisdiction to terminate alimony in this case. Thus, we
vacate the order on appeal as void for lack of subject matter jurisdiction. See
Stoddard v. Riddle, 362 S.C. 266, 269–70, 607 S.E.2d 97, 99 (Ct. App. 2004)
(acknowledging the family court had no jurisdiction to modify a pre-Moseley
agreement, but also concluding the language stating alimony "shall not in any
manner be modified by the Court" would also have denied the family court
jurisdiction to modify alimony "even if the agreement was entered into following
the Moseley decision").

Modification of Alimony in the 2011 Order

Wife argues the family court erred in denying her motion to void the 2011 order
under Rule 60(b)(4), SCRCP, by finding she either waived subject matter
jurisdiction by failing to appeal the 2011 order or she was barred by estoppel and
laches.1 We disagree.

Wife's motion for reconsideration under Rule 59(e), SCRCP, and for relief under
Rule 60(b)(4), SCRCP, sought to return the parties to the terms of the divorce
decree by voiding both the 2011 modification of alimony order and the 2018 order
on appeal terminating alimony. As to the termination of alimony in the 2018
order, we agree with Wife and, as previously discussed, we vacate the order
terminating alimony because the family court lacked subject matter jurisdiction.
However, we find no error in the family court's refusal to grant Wife's motion to
set aside the 2011 modification order as void under Rule 60(b)(4), SCRCP.

Subject matter jurisdiction may not be waived even with consent of the parties.
Hunter v. Boyd, 203 S.C. 518, 525, 28 S.E.2d 412, 416 (1943). "The issue of
subject matter jurisdiction may be raised at any time including when raised for the
first time on appeal . . . ." Tatnall v. Gardner, 350 S.C. 135, 137, 564 S.E.2d 377,
378 (Ct. App. 2002); see S.C. Dep't of Soc. Servs. v. Tran, 418 S.C. 308, 318–19,
792 S.E.2d 254, 259–60 (Ct. App. 2016) (vacating the family court's termination of
parental rights order and earlier removal order based on lack of subject matter
jurisdiction).

"On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding [if] . . . the
judgment is void[.]" Rule 60(b)(4), SCRCP. "A judgment of a court without
subject-matter jurisdiction is void." Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d
616, 617 (2005).

In Sijon v. Green, 289 S.C. 126, 128 n.2, 345 S.E.2d 246, 248 n.2 (1986), our
supreme court noted that Rule 60(b)(4) "requires that motions to set aside a
judgment on the ground it is void must be brought within a reasonable time."
Citing Sijon, this court also found "the reasonable time requirement applies to Rule

1
We combine Wife's second and third arguments.
60(b)(4)." McDaniel v. U.S. Fid. & Guar. Co., 324 S.C. 639, 643−44, 478 S.E.2d
868, 870−71 (Ct. App. 1996); see Rule 60(b), SCRCP ("The motion shall be made
within a reasonable time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order[,] or proceeding was entered or taken."). The court in
McDaniel recognized "[t]here is disagreement among the various federal and state
jurisdictions as to whether the reasonable time requirement should be imposed on
motions which attack a judgment as void." 324 S.C. at 643 n.1, 478 S.E.2d at 870
n.1. However, it also noted South Carolina follows the minority rule, applying a
reasonable time requirement to void judgments even though the minority rule is in
conflict with authority that holds "a void judgment cannot gain validity with the
movant's delay because it is a nullity from its inception." Id. But see Gatling v.
Beach Palace, Inc., 294 S.C. 464, 464, 365 S.E.2d 736, 737 (Ct. App. 1988) (per
curiam) (holding the reasonable time requirement does not apply to Rule 60(b)(4)
because a void judgment is a nullity and may be attacked at any time).

Following the rule cited in McDaniel, we agree with the family court that Wife's
acquiescence in the 2011 order for almost seven years was unreasonable under
Rule 60(b)(4)'s reasonable time requirement. See McDaniel, 324 S.C. at 644,
478 S.E.2d at 871 (finding the special referee's ruling that the appellants' Rule
60(b) motion was untimely after nearly four years was not an abuse of
discretion); Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 48, 590 S.E.2d 502,
505 (Ct. App. 2003) (finding a four-year delay was unreasonable although
"reluctant to proclaim that four years is a per se unreasonable period of time").
Accordingly, we affirm that portion of the family court's order that found Wife
could not get relief from the 2011 order under her Rule 60(b)(4) post-trial motion.
Because we affirm under Rule 60(b)(4), SCRCP, we need not reach Wife's
arguments as to estoppel and laches. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining an
appellate court need not address remaining issues when disposition of a
prior issue is dispositive).

CONCLUSION

Based on the foregoing, we vacate the family court's order to the extent it
terminated alimony. We affirm the family court's order to the extent it found
Wife's attempt to void the 2011 order reducing alimony was not timely filed under
Rule 60(b)(4), SCRCP.
VACATED IN PART, AFFIRMED IN PART. 2

HUFF and GEATHERS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.