McKinnon v. Bray

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

Lynda Marie McKinnon, Respondent,

v.

Chris Charles Bray, Appellant.

Appellate Case No. 2016-001493

Appeal From Pickens County
Alvin D. Johnson, Family Court Judge

Unpublished Opinion No. 2019-UP-271
Heard November 6, 2018 – Filed July 24, 2019

AFFIRMED

Jeffrey A. Merriam and Travis Verne Olmert, both of
Carter Smith Merriam Rogers & Traxler, PA, of
Greenville, for Appellant.

Margaret A. Chamberlain, of Chamberlain Law Firm,
LLC, and Jessica Ann Salvini, of Salvini & Bennett,
LLC, both of Greenville, for Respondent.

PER CURIAM: Chris Bray (Husband) appeals the family court's order granting
Lynda McKinnon's (Wife's) motion to reconsider and terminating Wife's alimony
obligation pursuant to Rule 60(b), SCRCP. On appeal, Husband argues the family
court erred by granting Wife's motion to reconsider and terminating Wife's
alimony obligation because (1) Wife's motion to reconsider was time barred, (2)
Wife did not give Husband notice she sought relief under Rule 60(b), (3) the
family court improperly considered parol evidence, (4) Wife's alimony obligation
was the law of the case, (5) any mistake in the 2012 divorce decree was Wife's
fault, (6) Wife did not prove by a preponderance of the evidence that the alimony
order did not reflect the agreement between Husband and Wife, and (7) the 2012
divorce decree contained no clerical error. We affirm.

FACTS

Husband and Wife divorced in 2012 after almost twenty years of marriage. Prior
to the final hearing, Husband and Wife participated in settlement negotiations from
January 9, 2012, to January 27, 2012. Wife submitted a draft of the agreed upon
terms to the family court. The alimony provision read:

Wife shall pay alimony directly to Husband in the
amount of $1,500.00 per month commencing February 5,
2012. Payments shall be due on the fifth of each month
thereafter. Should Wife ever fall ten (10) days or more
behind in making any payment, Husband may, by
affidavit, notify this court of Wife's late payments, and
[Wife] thereafter will have to make all alimony payments
directly through the Clerk's office of this [c]ourt with 5%
collection costs added thereto. The first eleven months
of alimony are not tax deductible by Wife. Alimony
shall be terminable only by death of either party, the
remarriage of Husband, or Husband's cohabitation . . . .

At the divorce hearing, Wife's counsel indicated the agreement was the result of
"extensive negotiations" and "[b]oth [Wife] and opposing counsel . . . had a chance
to review" it. The family court asked Husband and Wife if they read the agreement
and if it was correct, and they both answered affirmatively. Both parties indicated
they understood the agreement would be final if the family court approved it. They
stated their attorneys met with them and reviewed the agreement. The family court
granted the divorce and incorporated the above alimony provision into the final
divorce decree.

Wife paid Husband $1,500 in alimony from the date of the order until January
2016. When Wife stopped making payments, Husband filed a motion requesting
the family court to order Wife to pay alimony through the court pursuant to the
divorce decree. The family court granted Husband's request. Wife filed a motion
to reconsider pursuant to Rule 59, SCRCP. In her motion, Wife argued the final
divorce decree contained a clerical error because the parties agreed that alimony
would terminate after four years. Wife attached an affidavit from her attorney
stating she submitted the wrong proposed order to the family court.

At the hearing on Wife's motion, she submitted the emails and letters outlining the
settlement negotiations, and Husband objected. The emails and letters show Wife
and Husband negotiated the amount of alimony Wife would pay to Husband and
how long she would have to pay it. Three days before the hearing, Wife sent
Husband a proposed final order of divorce which included a provision requiring
Wife to pay Husband $1,500 per month in alimony for four years. Husband
responded by including a provision stating the alimony would be tax free for
eleven months. Wife included Husband's change and sent the new proposed order
of divorce. Husband made handwritten changes but none to the alimony provision.
Wife accepted Husband's changes and sent a new proposed order reflecting Wife
would pay Husband $1,500 per month in alimony for four years which would be
tax free for eleven months. The family court issued an order granting Wife's
motion and terminating her alimony obligation. The court noted that, although
Wife filed her motion pursuant to Rule 59, she "sought relief" from the divorce
decree pursuant to Rule 60(b) at the hearing. The family court found that the
agreement was not published to the court at the original divorce hearing, and
therefore the parties did not know the document contained an error. The family
court relied on Rule 60(b)(5) and held "it would not be equitable for Wife to be
required to pay Husband permanent, periodic alimony." The court found Wife
filed the motion as soon as she was aware of the mistake and the documents
submitted at the hearing clearly showed the parties' agreement was for alimony to
terminate after four years. Husband filed a motion to reconsider, and the family
court denied it.

STANDARD OF REVIEW

Generally, "[i]n appeals from the family court, the appellate court has the authority
to find the facts in accordance with its own view of the preponderance of the
evidence." Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006).
However, in Stoney v. Stoney, our supreme court clarified that "the standard for
reviewing a family court's evidentiary or procedural rulings [is] an abuse of
discretion standard." 422 S.C. 593, 594–95 n.2, 813 S.E.2d 486, 487 n.2 (2018).
The abuse of discretion standard applies to motions under Rule 60(b), SCRCP. See
Ex Parte Carter, 422 S.C. 623, 631, 813 S.E.2d 686, 690 (2018). "An abuse of
discretion occurs when the judge issuing the order was controlled by an error of
law or the order is based on factual conclusions that are without evidentiary
support." Gainey v. Gainey, 382 S.C. 414, 423, 675 S.E.2d 792, 797 (Ct. App.
2009).

RULE 60

Husband argues the family court erred in granting Wife's motion pursuant to Rule
60(b) because Wife's filed motion indicated she sought relief under Rule 59;
therefore, Husband asserts he did not have notice that Wife was relying on Rule
60(b). We disagree.

"A motion to alter or amend the judgment shall be served not later than [ten] days
after receipt of written notice of the entry of the order." Rule 59(e), SCRCP.

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 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.

Rule 60(b)(5). "The motion shall be made within a reasonable time . . . ." Rule
60(b).

Although Wife moved pursuant to Rule 59(e) to reconsider the order to pay
through the court, Wife relied on Rule 60 reasoning at the hearing. At the hearing,
Wife argued Rule 60(b) gave the family court two methods to grant Wife relief: the
judgment was no longer equitable under Rule 60(b)(5) and Husband was
committing a fraud upon the court under Rule 60(b)(3). The family court's order
relied on Rule 60(b)(5) to grant Wife's motion and the only requirement for
motions pursuant to that subsection is that they must be filed within a reasonable
time. The family court found Wife's motion was within a reasonable time because
she filed it as soon as she realized the divorce decree did not contain the four-year
limitation. We find Husband had adequate notice that Wife relied on Rule 60(b)
for her motion, and the family court did not abuse its discretion in finding Wife's
Rule 60(b) motion was filed within a reasonable time. See Rule 7(b), SCRCP
(indicating a motion can be made during a hearing).
PAROL EVIDENCE

Husband argues the family court erred in considering his settlement negotiations
with Wife because the agreement was unambiguous. He asserts the separation
agreement is a contract, and the parol evidence rule prohibited the family court
from considering the outside communications and intent of the parties. Husband
also argues the family court erred in granting Wife's Rule 60(b) motion because the
inaccuracy of the order was the fault of Wife and her counsel. Husband asserts the
documents do not prove their agreement included a four-year-term of alimony. We
disagree.

"In South Carolina, the construction of a separation agreement is a matter of
contract law." Nicholson v. Nicholson, 378 S.C. 523, 532, 663 S.E.2d 74, 79 (Ct.
App. 2008) (quoting Davis v. Davis, 372 S.C. 64, 75, 641 S.E.2d 446, 451 (Ct.
App. 2006)). "When an agreement is clear on its face and unambiguous, the
court's only function is to interpret its lawful meaning and the intent of the parties
as found within the agreement." Gaffney v. Gaffney, 401 S.C. 216, 221–22, 736
S.E.2d 683, 686 (Ct. App. 2012) (quoting State Mut. Ins. Co. v. Ard, 399 S.C. 232,
237, 730 S.E.2d 912, 914 (Ct. App. 2012)). "Where an agreement has been
merged into a court's decree, the decree, to the extent possible, should be construed
to effect the intent of both the judge and the parties." Nicholson, 378 S.C. at 532,
663 S.E.2d at 79 (quoting Messer v. Messer, 359 S.C. 614, 628, 598 S.E.2d 310,
318 (Ct. App. 2004)). "A court approved divorce settlement must be viewed in
accordance with principles of equity and there is implied in every such agreement a
requirement of reasonableness." Ebert v. Ebert, 320 S.C. 331, 340, 465 S.E.2d
121, 126 (Ct. App. 1995).

We agree with Husband that the alimony provision in the final divorce decree was
not ambiguous. It specifically outlined the amount of alimony Wife was required
to pay each month, under what circumstances the alimony would terminate, and
what would happen if Wife was late on any of the alimony payments. Changing
the divorce decree to terminate Wife's alimony after four years is a direct
contradiction of the terms of the agreement. However, we find the mutual mistake
exception to the parol evidence rule applied to allow the family court to consider
the settlement negotiations.

"A contract may be reformed on the ground of mistake when the mistake is mutual
and consists [of] the omission or insertion of some material element affecting the
subject matter or the terms and stipulations of the contract, inconsistent with those
of the parol agreement which necessarily preceded it." Progressive Max Ins. Co.
v. Floating Caps, Inc., 405 S.C. 35, 51, 747 S.E.2d 178, 186 (2013) (quoting
Crosby v. Protective Life Ins. Co., 293 S.C. 203, 206, 359 S.E.2d 298, 300 (Ct.
App. 1987)). "A mistake is mutual where both parties intended a certain thing and
by [a] mistake in the drafting did not obtain what was intended." Id. (emphasis
added) (quoting Crosby, 293 S.C. at 206, 359 S.E.2d at 300). We find Wife's
allegation of a mistake allowed the family court to consider the extrinsic evidence.
Wife argues that she and Husband agreed to limit her alimony obligation to four
years; however, due to a mistake, the final draft omitted the four-year limit. Wife
contends she and Husband were not aware of the mistake in the draft because the
family court did not read the order into the record at the hearing so they both
assumed the draft was correct. In the alternative, Wife argued Husband saw the
mistake and decided not to bring it to the court's attention because it benefited him
and, therefore, he was committing fraud upon the court.

We find the settlement negotiations clearly show Wife and Husband agreed to limit
alimony to four years and a mistake in drafting the agreement caused a
fundamental change in what the parties intended. See Hann v. Carolina Cas. Ins.
Co., 252 S.C. 518, 527–28, 167 S.E.2d 420, 424 (1969) (explaining a mutual
mistake means both parties intended one thing and did not get what they intended
due to a mistake in drafting). We disagree with Husband's argument that the
mistake was purely the fault of Wife and Wife's attorney. Even if Husband saw the
mistake and chose not to say anything, it would be inequitable to allow him to
benefit from the mistake and his silence. See Nicholson, 378 S.C. at 532, 663
S.E.2d at 79 ("A court approved divorce settlement must be viewed in accordance
with principles of equity and there is implied in every such agreement a
requirement of reasonableness." (quoting Ebert, 320 S.C. at 340, 465 S.E.2d at
126)); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011) ("The family
court is a court of equity."). Furthermore, we note Husband did not present any
evidence at the hearing to contradict Wife's evidence showing the divorce decree
did not represent the parties' agreement. Thus, we find the family court did not
abuse its discretion in relying on Rule 60(b)(5) to terminate Wife's alimony
obligation. See Ex Parte Carter, 422 S.C. at 631, 813 S.E.2d at 690 (explaining
the abuse of discretion standard applies in Rule 60(b) cases).1

1
Husband also argues the family court erred in finding there was a clerical error in
the divorce decree. Although the family court briefly cited the clerical error
provision from Rule 60 in its order, the family court did not rely on this provision
to grant Wife relief. Thus, we find this argument meritless.
Accordingly, the order of the family court is

AFFIRMED.

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.