Knight v. Knight

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

Debra M. Knight,       
Respondent,

v.

Jack Knight, Jr.,       
Appellant.

Appeal From Spartanburg County

Aphrodite K. Konduros, Family Court
Judge

Unpublished Opinion No. 2005-UP-082

Submitted February 1, 2005 – Filed February
4, 2005

AFFIRMED

Richard H. Rhodes, of Spartanburg, for Appellant.

Brendan M. Delaney, of Spartanburg, for Respondent.

PER CURIAM:  Debra M. Knight (Wife) initiated
this domestic relations action against Jack Knight, Jr. (Husband).  The family
court awarded Wife a divorce on the ground of adultery, ordered Husband to pay
alimony, and made an equitable distribution of the parties’ assets.  Husband
made a Rule 60(b) motion which was denied.  He appeals the denial of this motion. 
We affirm. [1]  

FACTS

On October 21, 2002, the family court
granted Wife a divorce on the ground of Husband’s adultery.  The court’s order
awarded Wife the marital home and a machine shop located adjacent to the home. 
Additionally, Wife was given responsibility for both mortgages on the residence
as well as a $20,000 loan obtained to purchase machinery.  The parties agreed
the value of the home was $68,000.  Husband was ordered to pay $650 per month
in permanent, periodic alimony, and Wife was awarded attorney’s fees.  

Husband did not appeal.  However, on December 20,
2002, Husband filed a motion pursuant to Rule 60(b), SCRCP.  Therein, Husband
asserted the following: (1) the valuation of the marital home was erroneous;
(2) the valuation of the mortgages on the home was erroneous; (3) the treatment
of the loan for business equipment as marital debt was erroneous; (4) the valuation
of Husband’s pension plans was erroneous; (5) the valuation and distribution
of the parties’ personal property was erroneous; (6) Husband should have been
given credit for certain payments towards marital debt; (7) the valuation of
the machine shop equipment was erroneous; (8) due to Husband’s psychological
condition at the time of the hearing, he was unable “to completely comprehend
the proceedings and to assist in the presentation of the case as he should have
been”; (9) Wife had not yet paid sums she agreed to pay for the appraisals of
the home and machine shop equipment; and (10) the division of marital assets
was erroneous.

The family court denied Husband’s Rule 60(b) motion,
with the sole exception that Wife was ordered to pay Husband the $100 she owed
him for the appraisals of the marital home and the machine shop equipment. 
Husband appeals this order, contending the court should have granted his motion
under Rule 60(b).  We affirm. 

LAW/ANALYSIS

Rule 60(b), SCRCP, provides, in pertinent
part:

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 for the following reasons:

(1)     mistake, inadvertence, surprise, or excusable neglect;

(2)     newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under Rule 59(b);

(3)     fraud, misrepresentation, or other misconduct of
an adverse party;

(4)     the judgment is void;

(5)     the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective application.

“[M]otions for relief under Rule 60(b)
are addressed to the discretion of the court and appellate review is limited
to determining whether the trial court abused its discretion.”  Saro v. Ocean
Holiday P’ship, 314 S.C. 116, 124, 441 S.E.2d 835, 840 (Ct. App. 1994) (citations
omitted).  “A party seeking to set aside a judgment pursuant to Rule 60(b) has
the burden of presenting evidence entitling him to the requested relief.”  Perry
v. Heirs at Law of Gadsden, 357 S.C. 42, 46-47, 590 S.E.2d 502, 504 (Ct.
App. 2003) (citing Bowers v. Bowers, 304 S.C. 65, 403 S.E.2d 127 (1991)). 
An abuse of discretion arises where the trial judge was controlled by an error
of law, or where her order is based on factual conclusions that are without
evidentiary support.  Tri-County Ice & Fuel Co. v. Palmetto Ice Co.,
303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990).

Husband’s Rule 60(b) motion does not specify
upon which of the five enumerated grounds for relief his motion is based.  Husband
fails to demonstrate any error of law or unsupported conclusion in the court’s
final decree.  Thus, he has not met his burden.  Further, his assertions of
error do not come within the ambit of any of the Rule 60(b)’s five reasons for
granting relief.  Accordingly, we hold the family court judge was within her
discretion in denying the Rule 60(b) motion. 

In his brief, Husband states that “[a]
substantial portion of the Appellant’s argument is based on the neglect of his
attorney.”  He specifically contends: “Appellant’s trial counsel did not present
a completed financial declaration on behalf of Appellant.  In addition, counsel
did not present basic information such as an inventory of the property.  Also,
Appellant’s counsel stipulated to documents which were not accurate.  Finally,
counsel failed to present pertinent information relating to equitable apportionment.” 

Initially, we note that Husband’s Rule
60(b) motion did not raise the issue of his trial counsel’s performance.  Issues
not raised and ruled upon in the trial court will not be considered on appeal. 
Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 598 S.E.2d 712 (2004);
I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). 
Nevertheless, we find this contention meritless.  In Greenville Income Partners
v. Holman, 308 S.C. 105, 417 S.E.2d 107 (1992), we held the failure of an
attorney to interpose available defenses did not amount to the kind of mistake,
surprise, inadvertence, and excusable neglect contemplated by Rule 60(b).  Id.
at 107, 417 S.E.2d at 108.  “The acts of an attorney are directly attributable
to and binding on his client.”  Id. (citations omitted).  Consequently,
we disagree with Husband that his trial counsel’s performance justifies reversal
on the Rule 60(b) issue. 

CONCLUSION

For the foregoing reasons, the decision of the family court is 

AFFIRMED.

ANDERSON, BEATTY, and SHORT, JJ., concur.

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