Jasper Fickling v. Debbie Fickling

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

Jasper Fickling, Appellant,

v.

Debbie Fickling, Respondent.

Appellate Case No. 2019-001039

Appeal From Dorchester County
William J. Wylie, Jr., Family Court Judge

Unpublished Opinion No. 2022-UP-414
Submitted April 1, 2022 – Filed November 23, 2022

AFFIRMED

Julio A. Rossington, of Rossington Law Offices, LLC, of
Summerville, and Brett Lamb Stevens, of Stevens Law,
LLC, of Columbia, both for Appellant.

William J. Clifford, of William J. Clifford, LLC, of
North Charleston, for Respondent.

PER CURIAM: Jasper Fickling (Father) appeals the family court's order
requiring him to pay $13,800 in alimony arrearages to Debbie Fickling (Mother).
We affirm.
FACTS/PROCEDURAL HISTORY

The parties were married in 1983, and divorced on February 19, 2009. They have
two children, a son who was emancipated at the time of the divorce and a daughter
(Daughter) who was unemancipated at the time of the divorce. The divorce decree
granted primary custody of Daughter to Father and ordered Mother to pay $200
monthly child support. The divorce decree ordered Father to pay $1,000 monthly
alimony, and the family court offset the payments as follows:
That [Father] shall pay directly to [Mother] one thousand
dollars per month in permanent periodic alimony . . . .
However, based upon [Father's] greater earning
capacity . . . the court concludes that a downward
deviation from the Child Support Guidelines is
warranted, and [Mother] shall be required to pay two
hundred dollars in child support. Child support shall be
paid by [Father] deducting this amount from his monthly
alimony payment to [Mother]. If [Father] is ever more
than five days late with any payment [Mother] may file
an Ex Parte Affidavit with the court and all future
alimony payments shall then be made payable through
the court together with the five percent administrative
fee.
On September 4, 2009, the family court ordered Father to make alimony payments
through the Dorchester County family court. In June 2012, Daughter graduated
from high school, thereby becoming emancipated; this date is not in dispute. Upon
Daughter's emancipation, Father continued to pay $800 in alimony rather than the
$1,000 ordered in the divorce decree.
On July 12, 2018, Father filed a complaint (Case. No. 2018-DR-18-955) to
retroactively terminate alimony based on his belief that Mother had been living
with her romantic partner for several years. Before Mother filed her answer and
counterclaim, the clerk of court issued a rule to show cause against Father on July
17, 2018 (the July Rule), alleging Father owed an alimony arrearage. The July
Rule asserted Father owed an amount calculated by the clerk of court on the basis
of the $800 monthly amount Father had been paying.

On August 14, 2018, Mother denied Father's allegation and counterclaimed,
asserting the divorce decree required Father to pay $1,000 per month in alimony,
and after Daughter's emancipation he only paid $800 per month. She also asked
the court to issue a rule to show cause and hold Father in willful contempt for his
failure to comply with the alimony provision set forth in the divorce decree.

On October 16, 2018, the family court issued an order (the Consent Order) that
dismissed Case No. 2018-DR-18-955 and stated in pertinent part:

The parties have reached a final agreement regarding
Civil Action 18-DR-18-955. Counsel for the parties
advised the Court that the parties had reached a final
agreement regarding this action and desired to have the
agreement approved by the Court. The agreement is as
follows:

a. That [Mother] consents to the termination of
ongoing permanent periodic alimony effective July 1,
2018;
b. That effective July 1, 2018 [Father's] alimony
obligation [to Mother] shall terminate; and
c. That this action will be dismissed.

On October 31, 2018, the family court issued a civil contempt order (the Contempt
Dismissal Order) dismissing the July Rule that stated "[r]ule to show cause is
dismissed. Case is closed by Consent Order in case number 18-DR-18-955."

On September 14, 2018, the family court issued an order and rule to show cause
under Case No. 06-DR-18-0376 ordering Father to appear in court on October 15,
2018 (the September Rule). The September Rule alleged Father owed an amount
that incorporated the full $1,000 a month in alimony owed by Father.

On April 17, 2019, the family court held a hearing "pursuant to a Rule to Show
Cause issued on behalf of [Mother]." Father moved to dismiss the action, arguing
that Mother was attempting to relitigate a matter upon which the parties had
previously agreed. Mother argued the rule to show cause was a separate
enforcement action that stood alone from the Consent Order.

The family court issued an order (the 2019 Order) finding Father was not in willful
violation of the divorce decree. The family court explained that although the "clear
implication" of the decree was that Father would owe the full $1,000 alimony
following Daughter's emancipation, the order did not "contain a clear and specific
provision ending that deduction upon [Daughter's] emancipation." The family
court found that Father's failure to make the full $1,000 payment of alimony
"without demand by Mother" did not rise to the level of contempt and determined
that Father owed $13,800 in alimony arrearages. This appeal followed.
ISSUES ON APPEAL

I. Did Mother have an affirmative duty to petition the family court to end her child
support obligation following Daughter's emancipation?

II. Did res judicata bar Mother's claim for alimony arrearages?

III. Did the family court err in requiring Father to pay alimony arrearages after
finding Father was not in willful contempt?

STANDARD OF REVIEW

"The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381, 386, 709
S.E.2d 650, 652 (2011). "Appellate courts review family court matters de novo,
with the exceptions of evidentiary and procedural rulings." Stone v. Thompson,
428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019). "[W]hile this court has the authority
to find facts in accordance with its own view of the preponderance of the evidence,
'we recognize the superior position of the family court . . . in making credibility
determinations.'" Lewis v. Lewis, 400 S.C. 354, 361, 734 S.E.2d 322, 325 (Ct.
App. 2012) (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at 655). "Further, de novo
review does not relieve an appellant of his burden to 'demonstrate error in the
family court's findings of fact.'" Id. (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at
655).

LAW/ANALYSIS

I. Emancipation

Father argues the family court erred in requiring him to pay alimony arrearages
because Mother did not petition the family court to formally end her child support
obligation. Father asserts the family court had no basis to determine it was
reasonable to conclude Daughter's emancipation terminated Mother's child support
obligation. We disagree and find Father's argument is without merit.

"Generally under South Carolina law, a parent's obligation to pay child support
extends only until the child reaches majority, then ends by operation of law."
Thornton v. Thornton, 328 S.C. 96, 109, 492 S.E.2d 86, 93 (1997). In domestic
matters, the family court has exclusive jurisdiction:

To make all orders for support run until further order of
the court, except that orders for child support run until
the child turns eighteen years of age . . . or past the age of
eighteen years if the child is enrolled and still attending
high school, not to exceed high school graduation . . . .

S.C. Code Ann. § 63-3-530(A)(17) (Supp. 2022).

Under the express terms of the statute, a parent's obligation to pay child support
does not require further court order to terminate and ends by operation of law when
a child turns eighteen or graduates from high school. Because Mother's child
support obligation terminated by operation of law when Daughter graduated from
high school in 2012, Father's alimony payment amount increased to the full $1,000
at that time. Therefore, we affirm on this issue.

II. Res Judicata

Father contends Mother's claim for the arrearage is barred by res judicata because
she agreed to dismiss her claim in the Consent Order. Mother argues the
September Rule was not dismissed by the Consent Order but stood alone as Case
No. 06-DR-18-0376. We find res judicata does not bar Mother's claim and it was
not dismissed by the Consent Order.

"Res judicata bars subsequent actions by the same parties when the claims arise out
of the same transaction or occurrence that was the subject of a prior action between
these parties." Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512
S.E.2d 106, 109 (1999); Rogers v. Kunja Knitting Mills, U.S.A., 336 S.C. 533,537,
520 S.E.2d 815, 817 (Ct. App. 1999). "In order to establish a plea of res judicata,
three elements must be established: (1) identity of parties; (2) identity of subject
matter; and (3) adjudication of the issue in the former suit." Sealy v. Dodge, 289
S.C. 543, 545, 347 S.E.2d 504, 505 (1986).

"In South Carolina jurisprudence, settlement agreements are viewed as contracts."
Abel v. S.C. Dep't of Health & Env't Control, 419 S.C. 434, 438, 798 S.E.2d 445,
447 (Ct. App. 2017) (quoting Nichols Holding, LLC v. Divine Cap. Grp., 416 S.C.
327, 335, 785 S.E.2d 613, 615 (Ct. App. 2016)). "To discover the intention of a
contract, the court must first look to its language—if the language is perfectly plain
and capable of legal construction, it alone determines the document's force and
effect." Id. at 441, 798 S.E.2d at 448 (quoting Ecclesiastes Prod. Ministries v.
Outparcel Assocs., LLC, 374 S.C. 483, 498, 649 S.E.2d 494, 501 (Ct. App. 2007)).

Here, we find res judicata does not bar the current action because the Consent
Order did not adjudicate the issue of Father's alimony arrearage. The Consent
Order clearly sets forth the parties' intent to establish the end date for Father's
alimony obligation, but it is silent as to Father's alimony arrearage. It does not
contain language addressing the arrearage nor does it contain language indicating
that the parties agreed to forgive it. Further, the Consent Order does not address
the pending September Rule. Therefore, we find the family court did not err in
ordering Father to pay the alimony arrearage.

III. Contempt

Although the family court found Father did not willfully fail to comply with the
divorce decree, it still found Father was in arrears on his alimony payments to
Mother. Father contends the family court erred in awarding Mother an alimony
arrearage without a finding of willful contempt. We disagree as our jurisprudence
makes no such requirement. Thus, we find the family court did not err.

CONCLUSION

Accordingly, the order of the family court is

AFFIRMED. 1

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.

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