Higgins v. Higgins

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

Paula E. Higgins, Respondent,

v.

Christopher M. Higgins, Appellant.

In Re: Steven C. Higgins

Appellate Case No. 2016-001265

Appeal From Cherokee County
Usha J. Bridges, Family Court Judge

Opinion No. 2019-UP-216
Submitted October 1, 2018 – Filed June 19, 2019

AFFIRMED

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., and
W. Barry Bland, both of Spartanburg, for Appellant.

Hattie Darlene Evans Boyce, of Spartanburg, for
Respondent.

SHORT, J.: Christopher M. Higgins (Husband) appeals the family court's
decision to (1) order an amended Qualified Domestic Relations Order (QDRO) that
would require him to pay an additional $61,196.16 to Paula E. Higgins (Wife) over
what he already paid pursuant to a prior QDRO that had been signed by the parties
and approved by the family court and (2) hold him responsible for any legal fees
incurred in the preparation of the amended QDRO. On appeal, Husband argues the
family court (1) should have continued the contempt proceeding that resulted in the
issuance of the appealed order because of the absence of a subpoenaed witness and
(2) erred in ruling on the matter without taking any testimony during the hearing.
We affirm.1

FACTS AND PROCEDURAL HISTORY

On August 8, 2014, the parties appeared before Family Court Judge Usha J.
Bridges for a final divorce hearing. On September 16, 2014, Judge Bridges issued
an order in which she granted Wife a divorce on the ground of a one-year
separation and approved an agreement between the parties regarding their minor
child and the division of the parties' marital debts and property.

Pursuant to the parties' agreement, Judge Bridges ordered the following regarding
equitable distribution of the marital property:

That [Wife] shall receive $182,500.00 from [Husband's]
retirement account, and said amount shall constitute her
entire equitable apportionment from his account.
[Husband] shall retain any and all balances in his
retirement/401k accounts over and above said
$182,500.00 allocated to [Wife]. The division shall be
done by way of a Qualified Domestic Relations Order
(QDRO), with the parties each being responsible for 50%
of the legal costs associated with the preparation of said
QDRO.

On July 1, 2015, the parties appeared again before Judge Bridges on a motion filed
by Wife for additional relief or a new trial. On July 24, 2015, the family court
filed an order in which Judge Bridges ruled (1) Husband would pay for the
preparation of two QDROs to be drafted by Attorney Richard H. Rhodes, (2) one
QDRO would grant Wife $182,500.00 from Husband's Timken Company Savings
and Investment Plan, and (3) another QDRO would be prepared granting Wife fifty

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
percent of the balance as of July 29, 2013, of Husband's Timken-Latrobe-MPB
Torrington Retirement Plan.

On December 1, 2015, Judge Bridges signed a QDRO prepared by Attorney
Richard H. Rhodes in conjunction with the matter, and the QDRO was filed the
following day. This QDRO applied to the Timken Company Savings and
Investment Plan. Paragraph 7 of the QDRO stated, "This Order assigns to [Wife]
an amount equal to One Hundred Eight[y] Two Thousand Five Hundred and
no/100 ($182,500.00) of [Husband's] Total Account Balance accumulated under
the Plan as of July 29, 2013 (or the closest valuation date thereto.").

On March 18, 2016, Wife filed a petition for contempt against Husband alleging
among other things that "[t]he manner in which the QDRO was prepared dropped
the amount [Wife] was to receive to $121,303.84." Based on this allegation, Wife
requested the family court to (1) find Husband in contempt; (2) require him to pay
her $61,196.16, the difference between $182,500.00, the amount Wife claimed she
should have received, and $121,303.84, the amount she actually received; and (3)
order Husband to pay attorney's fees and costs she incurred in bringing contempt
proceedings. The family court issued an order and rule to show cause directing
Husband to appear on April 20, 2016. On April 13, 2016, Husband filed a return
to the rule to show cause, in which he pointed out the QDRO specifically provided
that Wife was to receive $182,500.00 and was approved by Wife as well as the
family court.

Judge Bridges presided at the hearing on April 20, 2016, at which both parties
were represented by counsel. When the hearing commenced, counsel for Husband
informed Judge Bridges that he issued a subpoena for Rhodes to testify at the
hearing but Rhodes had not yet arrived. Judge Bridges responded she was familiar
with the case and stated she recalled Wife was supposed to have received
$182,500.00 as a fixed amount. Counsel for Husband moved to continue the case,
but Judge Bridges decided to wait for Rhodes to appear and suggested counsel
make inquiries by phone as to Rhodes's whereabouts. Husband's counsel argued
that requiring Husband to pay Wife more than what he had already paid was
tantamount to an improper modification of the divorce decree, but provided no
statements under oath as to why Rhodes's testimony was necessary.

While waiting for Rhodes's arrival, Judge Bridges asked to see documentation that
supported Husband's assertion that Wife received $182,500.00, and counsel for
Husband directed her to look at documents in a package that had apparently been
submitted just before the hearing. The family court then showed counsel
documentation submitted by counsel for Wife that showed Wife received only
$121,303.84.

Eventually, counsel for Husband informed Judge Bridges that Rhodes was calling
her office. After a brief recess, Judge Bridges advised the parties on the record that
she spoke with Rhodes by phone. 2 According to statements Judge Bridges made
on the record, Rhodes advised her that some companies handle their QDROs by
allocating a proportional share of the entire account to the alternate payee and
revalue the share at the time of the distribution according to current market
conditions. Judge Bridges also informed the parties Rhodes agreed to draft an
amended QDRO that provided Wife's award was a sum certain that would not
fluctuate over time. Judge Bridges then ruled the matter had concluded and she
would not allow either party to put anything else on the record. Counsel for
Husband objected to Judge Bridges's decision to rule on the matter without taking
any testimony, but Judge Bridges overruled the objection and refused to change her
ruling.

Judge Bridges signed the appealed order on May 3, 2016, and the family court
filed the order on May 11, 2016. In the order, Judge Bridges ruled Rhodes would
prepare an amended QDRO granting Wife $182,500.00, the amount granted to
Wife in the original divorce decree, from Husband's Timken Company Savings and
Investment Pension Plan. Judge Bridges further acknowledged she was ordering
the amended QDRO over Husband's objection and ruled Husband would "continue
to be responsible for any fees to Attorney Rhodes[,] whom he chose to do the
QDRO." Judge Bridges, however, also expressly stated she did not find Husband
in contempt, and the appealed order did not grant Wife any attorney's fees or costs
incurred in conjunction with the contempt proceedings. This appeal followed.

ISSUES
I. Did the family court err in denying Husband's request to continue the matter
because of the absence of a subpoenaed witness?

II. Did the family court abuse its discretion in ruling on the matter without
taking any testimony?

2
Rhodes confirmed he received the subpoena but expressed concerns about
attending the hearing because he represented both parties when he prepared the
QDRO.
LAW/ANALYSIS
I. Denial of Husband's Request for a Continuance

Husband argues Judge Bridges abused her discretion in denying his request for a
continuance based Rhodes's absence from the hearing. We disagree.

Husband argues he subpoenaed Rhodes, the attorney who prepared the QDRO, to
testify at the hearing that Wife did in fact receive the amount to which she was
entitled under the divorce decree. Husband contends the absence of a subpoenaed
witness was good cause for a continuance because Rhodes's testimony could have
resolved the dispute as whether Husband complied with the obligation at issue.
We hold these circumstances do not warrant either a finding that Judge Bridges
abused her discretion in denying Husband's request for a continuance or a reversal
of that ruling.

"The grant or denial of a continuance is within the sound discretion of the trial
judge and is reviewable on appeal only when an abuse of discretion appears from
the record." Plyer v. Burns, 373 S.C. 637, 650, 647 S.E.2d 188, 195 (2007) (citing
Bridwell v. Bridwell, 279 S.C. 111, 112, 302 S.E.2d 856, 858 (1983)). "For
appellate purposes, an abuse of discretion occurs where the ruling is based on an
error of law or, where the ruling is grounded upon factual findings, is without
evidentiary support." Trotter v. Trane Coil Facility, 393 S.C. 637, 645, 714 S.E.2d
289, 293 (2011).

Under Rule 40(i)(1), SCRCP, "[i]f good and sufficient cause for continuance is
shown, the continuance may be granted by the court." (emphasis added). The use
of the term "may" indicates Rule 40(i)(1) only allows a court to exercise discretion
in deciding whether to grant or deny a request for a continuance once that party
seeking postponement has made the required showing. Demonstration of good and
sufficient cause, without more, does not entitle a party to a continuance as a matter
of right under Rule 40(i)(1).

We hold Judge Bridges acted within her discretion in denying Husband's motion to
continue the matter. First, we note Husband did not provide any statement under
oath regarding Rhodes's anticipated testimony or produce the subpoena and proof
of service. Therefore, pursuant to Rule 40(i)(2), SCRCP, Judge Bridges could not
have granted his motion for a continuance.3

3
Rule 40(i)(2), SCRCP, reads in pertinent part as follows:
Second, as Wife argues in her brief, Judge Bridges, having presided at the divorce
hearing and signed the divorce decree as well as a post-trial order, had firsthand
knowledge regarding the amount that Wife was to receive from Husband's
retirement account. During the proceeding, Judge Bridges showed counsel for
Husband a document Wife submitted indicating the amount she received from
Husband's retirement account was far less than the $182,500.00 awarded to her in
the divorce decree. Husband has not challenged either the authenticity of the
document or the accuracy of its information. Although Husband attempted at one
point to argue the discrepancy between what Wife was awarded and what she
received resulted from market fluctuations, the divorce decree clearly provided that
Wife would receive $182,500.00 from Husband's retirement account and that
amount would "constitute her entire equitable apportionment from his account."
Under these circumstances, we hold Judge Bridges acted within her discretion in
denying Husband's motion to continue the proceedings. See M&M Grp., Inc. v.
Holmes, 379 S.C. 468, 474-75, 666 S.E.2d 262, 265 (Ct. App. 2008) ("The grant or
denial of a continuance lies with the sound discretion of the trial court and such
ruling will not be reversed absent a clear showing of abuse of discretion.").

II. Husband's Right to a Testimonial and Evidentiary Hearing

Husband argues Judge Bridges abused her discretion by denying him a testimonial
and evidentiary hearing. In support of this argument, Husband points out the

No motion for continuance of trial shall be granted on account
of the absence of a witness without the oath of the party, his
counsel or agent, to the following effect, to wit: That the
testimony of the witness is material to the support of the action
or defense of the party moving; that the motion is not intended
for delay; but is made solely because the party cannot go safely
to trial without such testimony; that there has been due
diligence to procure the testimony of the witness or of such
other circumstances as will satisfy the court that the motion is
not intended for delay. In all such cases where a subpoena has
been issued, the original shall be produced, with proof of
service . . . . A party applying for such postponement on
account of the absence of a witness shall set forth under oath in
addition to the foregoing matters what fact or facts he believes
the witness if present would testify to, and the grounds for such
belief.
hearing was scheduled pursuant to Wife's petition to have him found in contempt
of court and he was therefore entitled under Rule 14(g), SCRFC, to "an evidentiary
hearing with testimony pursuant to the Rules of Evidence." Husband further
complains that the full conversation between Rhodes and Judge Bridges was not on
the record and asserts the parties disagreed about the amount of money Wife
actually received. We hold these arguments are unavailing.

"Conduct of trial, including the admission and rejection of testimony, is largely
within the trial judge's sound discretion, the exercise of which will not be disturbed
on appeal absent an abuse of that discretion or the commission of a legal error that
results in prejudice for appellant." Baber v. Greenville Cty., 327 S.C. 31, 41, 488
S.E.2d 314, 319 (1997).

The dissent argues Husband was prejudiced by the family court's amendment of
the QDRO without an evidentiary hearing with testimony. Rule 14(g), SCRFC,
states a contempt hearing in the family court "shall be an evidentiary hearing with
testimony pursuant to the Rules of Evidence, except as modified by the Family
Court Rules." However, even if Husband did not receive an evidentiary hearing
with testimony, Husband was not prejudiced by the abuse of discretion or legal
error. This hearing was not a retrial of the divorce action. The question before the
court was whether or not Husband was in contempt of the original QDRO.
Because Husband was ultimately not found in contempt, he cannot claim prejudice
from a violation of Rule 14(g). See Visual Graphics Leasing Corp. v. Lucia, 311
S.C. 484, 489, 429 S.E.2d 839, 841 (Ct. App. 1993) ("An error is not reversible
unless it is material and prejudicial to the substantial rights of the appellant."). The
amount Husband owed under the order was not changed by the clarification in the
wording. The family court also excused Husband's past failure to pay the full
amount. Even though Husband wished to use the contempt hearing as a way to re-
litigate his case and avoid paying the full amount, Husband was not prejudiced by
the family court's refusal to use the contempt hearing in this manner. Absent
prejudice to appellant, this court cannot reverse the lower court for failing to
conduct an evidentiary hearing with testimony.

CONCLUSION

Based on the foregoing, we affirm the appealed order.

AFFIRMED.

HUFF, J., concurs.

WILLIAMS, J., dissenting.
WILLIAMS, J.: I respectfully dissent and I would reverse the family court's
decision to rule on Wife's contempt petition without holding an evidentiary hearing
with testimony pursuant to the Rules of Evidence.

The family court scheduled a contempt hearing as a result of Wife's contempt
petition filed March 18, 2016. At the hearing on April 20, 2016, the family court
heard arguments from each party before taking a short recess. During the recess,
the family court had a phone conversation with Rhodes––who was not present for
the hearing despite being under subpoena to testify. As the majority explained, the
family court came back on the record from this recess, informed the parties that
Rhodes would draft an amended QDRO, ruled the matter had concluded, and
would not allow either party to place anything else on the record.

Rule 14(g), SCRFC states a "contempt hearing shall be an evidentiary hearing with
testimony pursuant to the Rules of Evidence . . . ." "A [family] court's
determination regarding contempt is subject to reversal whe[n] it is based on
findings that are without evidentiary support or whe[n] there has been an abuse of
discretion." Henderson v. Puckett, 316 S.C. 171, 173, 447 S.E.2d 871, 872 (Ct.
App. 1994); see also Means v. Means, 277 S.C. 428, 431, 288 S.E.2d 811, 812–13
(1982); Bearden v. Bearden, 272 S.C. 378, 381–82, 252 S.E.2d 128, 130 (1979). I
would reverse the family court's decision to rule on Wife's petition without
allowing the parties to present any testimony or other evidence during the
contempt proceeding.

The majority asserts that because Husband was not found in contempt, he suffered
no prejudice from the family court's decision; therefore, it finds any error by the
family court in this ruling is not reversible. The prejudice results from the family
court's decision to order Rhodes to draft an amended QDRO for the parties based
on an off-the-record phone conversation the family court had with Rhodes during a
recess outside the parties' presence. The family court's written order provides no
guidance as to the basis on which it decided to order an amended QDRO.

For the foregoing reasons, I respectfully dissent and I would reverse and remand
this case to the family court.