Dulaney v. Dulaney

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

Melissa
Dulaney, Respondent,

v.

Charles M. Dulaney, Appellant.

Appeal From Charleston County

 Frances  P. Segars-Andrews, Family Court
Judge

Unpublished Opinion No. 2011-UP-227

Heard April 7, 2011 – Filed May 18, 2011   

AFFIRMED

Gregory Samuel Forman, of Charleston, for
Appellant.

James B. Richardson, Jr., of Columbia, for
Respondent.

PER CURIAM:  Appellant,
Charles M. Dulaney (Father), appeals the decision of the family court ordering
Father to reimburse Melissa Dulaney (Mother) $27,720 for two years of tuition
at a private school incurred for their child's education.  Father asserts (1)
the family court erred in allowing Mother to orally amend her rule to show
cause to seek reimbursement of tuition for both the 2005-2006 and 2006-2007
school years; (2) the family court erred in finding Father owed Mother back
tuition, because Father provided substantial evidence the parties had reached an
agreement otherwise and Father presented substantial evidence the elements of
equitable estoppel applied; (3) the family court erred in finding the parties'
e-mails indicated an agreement Father would reimburse Mother for the contested
tuition payments at a later date because there was no language in the e-mails
to support such a finding; (4) the family court erred in refusing to reopen the
case to take further testimony on the issue of Mother's credibility where
Mother's credibility was critical to Father's arguments regarding his equitable
estoppel defense and her requested oral amendment, and the court limited Father's
cross examination of Mother and prohibited cross-examination of Mother's
counsel on the issue; and (5) he is entitled to an award of fees and costs if
this court reverses the family court's determination on tuition reimbursement. 
We affirm.

1.  We find no error in the family
court allowing Mother to orally amend her pleading.  It is well established
that a motion to amend is addressed to the sound discretion of the trial judge,
and that the party opposing the motion has the burden of establishing
prejudice.  Hardaway Concrete Co. v. Hall Contracting Corp., 374 S.C.
216, 227, 647 S.E.2d 488, 493-94 (Ct. App. 2007).  Courts have wide latitude in
allowing amendment of pleadings.  Berry v. McLeod, 328 S.C. 435, 450,
492 S.E.2d 794, 802 (Ct. App. 1997).  While this power should not be used
indiscriminately or to prejudice or surprise another party, the court's
decision to allow an amendment is within its sound discretion, and will rarely
be disturbed on appeal.  Id.  In considering potential prejudice to the
opposing party, the court should consider whether that party has had the opportunity
to prepare for the issue now being formally raised.  Armstrong v. Collins,
366 S.C. 204, 230, 621 S.E.2d 368, 381 (Ct. App. 2005).  Here, it is clear that
Father continued to present this equitable estoppel argument to the court in
regard to both years, and he presented the same evidence in support of this
argument on the 2005-2006 school year's tuition as he did on the 2006-2007
school year.  Further, Father does not suggest any additional evidence he could
have presented but was prevented from presenting by reason of the amendment at
trial.  Accordingly, we find Father failed to establish prejudice.

2.  We find no merit to Father's
assertion that the family court erred in determining he owed Mother back
tuition because he proved his equitable estoppel defense.  In appeals from the
family court, the appellate court has jurisdiction to find facts in accordance
with its own view of the preponderance of the evidence.  Dickert v. Dickert,
387 S.C. 1, 5-6, 691 S.E.2d 448, 450 (2010).  However, this broad scope of
review does not require the reviewing court to disregard the findings of the
family court, as appellate courts should be mindful that the family court, who
saw and heard the witnesses, sits in a better position to evaluate credibility
and assign comparative weight to the testimony.  Id. at 6, 691 S.E.2d at
450.  In Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007),
the court stated the following essential elements of equitable estoppel as
related to the party being estopped:  (1) conduct which amounts to a false
representation, or conduct which is calculated to convey the impression that
the facts are otherwise than, and inconsistent with, those which the party
subsequently attempts to assert; (2) the intention that such conduct shall be
acted upon by the other party; and (3) actual or constructive knowledge of the
real facts; and provided as to the party asserting estoppel it is necessary to
show:  (1) lack of knowledge, and the means of knowledge, of the truth as to
the facts in question; (2) reliance upon the conduct of the party estopped; and
(3) a prejudicial change of position in reliance on the conduct of the party
being estopped.  Id. at 84-85, 650 S.E.2d at 470.  The court further
noted equitable estoppel is based on affirmative conduct between the parties.  Id. at 85, 650 S.E.2d at 470.  In looking at the affirmative conduct between the
parties, the record shows that Mother specifically testified she and Father had
a financial arrangement for his payment of the tuition, and though they had
discussed that it would be difficult for him to make the payments when Father
started law school, that she had communicated with Father in an effort to have
him pay the tuition, and that Mother informed Father that she understood for
his first year in law school he "needed to get his feet on the ground,"
but she still expected him to catch up on the payments in the future.  We find
the issue of credibility was properly considered by the family court, and the
court's order implicitly reflects a determination Mother was credible on the
issue of the parties' agreement concerning the tuition.

3.  In regard to Father's argument
concerning the family court's finding regarding the e-mails between the
parties, we first note, as to Father's assertion that the family court erred in
failing to correct any discrepancy between the court's instructions in its memo
and the final written order, Father failed to set forth this issue in his
Statement of the Issues on Appeal.  Because this
issue was not included in Father's Statement of the Issues on Appeal, we need
not address this argument on the merits. See Rule 208(b)(1)(B), SCACR ("Ordinarily,
no point will be considered which is not set forth in the statement of the issues on appeal.").  Moreover, this argument advanced in Father's brief
makes no reference to any supporting authority.  See Bryson v. Bryson,
378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be
considered on appeal if the argument is raised in a brief but not supported by
authority."); see also Glasscock, Inc. v.
U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App.
2001) ("[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.")  At any rate,
the family court declined to make this change as requested in Father's motion
to amend.  Thus, it is clear that the court found the final written order
properly set forth the court's finding in this regard.  See Doe v.
Doe, 324 S.C. 492, 501, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding judgments are not final until written and entered, and until
written and entered, the judge retains discretion to change his mind and amend
his ruling accordingly).  As to Father's argument that the family court
erred in finding the e-mails between the parties indicated an agreement that
Father would reimburse Mother the contested tuition payments at a later date,
we note a clear reading of the order shows the family
court found the e-mails between the parties indicate only there may have been an agreement that the parties intended the Father pay the tuition
later.  Further, the e-mails, together with Mother's testimony that she
informed Father she expected him to catch up with the tuition at some point in
time, support this conclusion.  Thus, considering the record as a whole, the
preponderance of evidence supports the family court's finding in this regard.

4. We find there was no abuse of
discretion in the family court's refusal to reopen the case to take additional
testimony.  "The decision whether to reopen a record for additional
evidence is within the trial court's sound discretion and will not be disturbed
on appeal absent an abuse of that discretion."  Brenco v. S.C. Dep't of
Transp., 377 S.C. 124, 127, 659 S.E.2d 167, 169 (2008).  It is well
established that a trial judge enjoys considerable latitude and discretion in
deciding whether to allow a party to reopen his case, and this decision will
not be disturbed on appeal unless the opposing party was prejudiced thereby.  Brown
v. La France Indus., 286 S.C. 319, 324-25, 333 S.E.2d 348, 351 (Ct. App.
1985).  A review of the record reveals Father's attorney questioned Mother
extensively regarding the change made from the amount sought in the initial
rule to show cause to the lower amount sought in the amended rule to show
cause.  Thus, Father's attorney was not limited from examining Mother on the
issue. At any rate, any additional testimony on the matter would have, at best,
been marginally relevant, and Father suffered no prejudice.  See  Fields
v. Reg'l.  Med. Ctr. Orangeburg, 363 S.C. 19, 25-26, 609 S.E.2d 506, 509
(2005) (holding the admission or exclusion of evidence in general is within the
sound discretion of the trial court, and reversal based on the admission or
exclusion of evidence is not warranted absent a showing of both error and
resulting prejudice).  See also State v. Johnson, 338 S.C.
114, 124-25, 525 S.E.2d 519, 524 (2000) (noting considerable latitude is
allowed in cross-examination to test a witness's credibility, but a trial court
may impose reasonable limits on cross-examination based upon concerns about,
among other things, harassment or interrogation that is repetitive or only
marginally relevant; an appellate court will not disturb a trial court's ruling
concerning the scope of cross-examination of a witness to test his or her
credibility absent a manifest abuse of discretion).

5.  Father contends, should this court
reverse the finding that he is required to reimburse Mother for the tuition or
that he is only responsible for the 2006-2007 tuition, the court should grant
Father all of his fees for defending the rule to show cause, or should remand
the matter back to the family court for an award of fees.  Thus, this issue is
contingent upon this court's reversal on the award of tuition reimbursement.  Because
we do not find the family court's decision on reimbursement of tuition should
be reversed, there is no basis to reverse or remand on the issue of attorney's
fees and costs.

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

AFFIRMED.

FEW, C.J., and HUFF and
PIEPER, JJ., concur.