Marshall v. Marshall

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

Joseph A.
Marshall, Appellant,

   v.

Carrie C.
Marshall, Respondent.

Appeal From Aiken County

Dale Moore Gable, Family Court Judge

Unpublished Opinion No. 2011-UP-181

Submitted February 1, 2011 – Filed April
19, 2011   

REVERSED AND REMANDED

Leon E. Green, of Aiken, for Appellant.

Gregory P. Harlow, of Aiken, for
Respondent.

PER CURIAM:  Joseph
A. Marshall (Husband) appeals the family court's denial of his Rule 60(b),
SCRCP, motion.  Husband argues the family court erred in (1) denying his motion
to set aside a qualified domestic relations order (QDRO) on the ground the
judgment was satisfied and (2) failing to address the merits of his motion
because the issue warranted equitable relief.  We reverse and remand.[1]

Rule 60(b)(5), SCRCP, states:

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. 

We hold the family court erred
in dismissing Husband's motion on the basis it was an improper procedural
vehicle to address Husband's concerns.  Rule 60(b)(5) expressly allows a party
to petition the court to set aside compliance with an order if a judgment has
been satisfied.  Here, Husband filed his Rule 60(b)(5) motion to seek relief
from enforcement of the QDRO because he alleged he previously complied with the
May 8, 2007 consent order by transferring $273,975 to Carrie C. Marshall
through an individual retirement account.  Therefore, an open legal question
exists as to whether Husband has fully satisfied the terms of the consent
order, an issue that is directly addressed by Rule 60(b)(5).  Accordingly, we
reverse the family court's ruling and remand the case to the family court for a
hearing on the merits of Husband's Rule 60(b)(5) motion.   

REVERSED AND REMANDED.

FEW, C.J., THOMAS and KONDUROS,
JJ., concur.

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