Hentges v. Hentges

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

Narda Ray
Hentges, Respondent/Appellant,

v.

Thomas J.
Hentges, Appellant/Respondent.

Appeal From Charleston County

Jack Alan Landis, Family Court Judge

Judy L. McMahon, Family Court Judge

Unpublished Opinion No.   2011-UP-513

Heard September 15, 2011 – Filed November
28, 2011

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Jack D. Cordray, of Charleston, for
Appellant/Respondent.

Margaret D. Fabri, of Charleston, for
Respondent/Appellant.

PER CURIAM:  This cross-appeal arises from two orders
of the family court, both of which interpret and enforce a court-approved
marital separation agreement (the Agreement) between Thomas Hentges (Husband)
and Narda Hentges (Wife).  We affirm in part, reverse in part, and remand.

1.  As to whether
Husband violated the Agreement by failing to give Wife a raise in salary in
proportion to the 17.3% increase to Husband's salary, we find the Agreement
ambiguous.  See Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 242,
672 S.E.2d 799, 803 (Ct. App. 2009) (providing an agreement is ambiguous when
the terms of the agreement are reasonably susceptible to more than one
interpretation).  The salary provision in the Agreement can reasonably be
interpreted as providing the parties' intent for Wife to receive a raise in
salary proportional to any increases to Husband's income occurring either after
January 1, 2003, the date commencing the five-year period Wife was to remain on
the payroll of Animal Medical West, or after February 19, 2003, the date the
parties executed the Agreement.  In light of this ambiguity, the family court
erred by finding Husband in willful contempt.  See Smith v. Smith,
359 S.C. 393, 397, 597 S.E.2d 188, 189 (Ct. App. 2004) (finding husband not in
willful contempt when court order was ambiguous); see also Deel v.
Deel, 909 N.E.2d 1028, 1032 (Ind. App. 2009) ("A party may not be held
in contempt for failing to comply with an ambiguous or indefinite order.  Otherwise,
a party could be held in contempt for obeying an ambiguous order in good faith."
(internal quotation marks omitted)); Evans v. Evans, 2011 WL 1566017, at
*2 (Miss. App. 2011) (holding a defendant can rebut a prima facie case of
contempt by showing an inability to pay, that the default was not willful, that
the provision violated was ambiguous, or that performance was impossible).  Therefore,
we reverse the family court's finding Husband in willful contempt and remand
for further proceedings for the family court to make specific findings
regarding the controlling date of the salary provision and to allow the family
court to enforce the Agreement if it finds the parties intended January 1,
2003, to be the controlling date.

2.  As to whether
the family court erred by finding Husband was not entitled to receive a setoff
for the reduced equity in the marital home due to Wife's refinancing of the home,
we find Husband's arguments abandoned on appeal.  See Fields v.
Melrose Ltd. P'ship, 312 S.C. 102, 106 n.3, 439 S.E.2d 283, 285 n.3 (Ct.
App. 1993) ("[A]n issue is deemed abandoned on appeal and, therefore, not
presented for review, if it is argued in a short, conclusory statement without
supporting authority." (citation omitted)).

3.  As to whether
the family court erred by awarding Wife $12,957.00 in attorney's fees on Wife's
rule to show cause, we remand the award for reconsideration after making the
findings herein regarding the salary provision.  See Reiss v. Reiss,
392 S.C. 198, 210, 708 S.E.2d 799, 805 (Ct. App. 2011) ("In deciding
whether to award attorney's fees and costs, the family court should consider '(1)
the party's ability to pay his/her own attorney's fee; (2) beneficial results
obtained by the attorney; (3) the parties' respective financial conditions;
[and] (4) effect of the attorney's fee on each party's standard of
living.'" (quoting E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415
S.E.2d 812, 816 (1992))); id. ("In determining a reasonable
attorney's fee the family court should consider '(1) the nature, extent, and
difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5)
beneficial results obtained; [and] (6) customary legal fees for similar
services.'" (quoting Glasscock v. Glasscock, 304 S.C. 158, 161, 403
S.E.2d 313, 315 (1991))).

4.  As to whether
the family court erred by granting Wife's motion to compel enforcement of the
money judgment for underpaid wages, we find the family court correctly found
the monies awarded and due to Wife by court order on the rule to show cause
were in the nature of back support and, therefore, not automatically stayed
upon appeal.  See  Rule 241(a), SCACR ("As a general rule, the
service of a notice of appeal in a civil matter acts to automatically stay
matters decided in the order, judgment, decree or decision on appeal, and to
automatically stay the relief ordered in the appealed order, judgment, or
decree or decision."); Rule 241(b)(6), SCACR (providing an exception to
the general rule for family court orders regarding a child or requiring payment
of support for a spouse or child as provided in section 63-3-630 of the South
Carolina Code).

5.  As to whether
the family court erred by not allowing Husband to post monies with the court to
secure payment of the judgment, we find no error because there was not a question
of entitlement to the funds at the time Wife moved to compel payment.  See Rule 67, SCRCP (allowing a judgment debtor to avoid further accrual of post
judgment interest pending the resolution of an appeal from the judgment by
depositing the judgment with the court); S.C. Dep't of Transp. v. First
Carolina Corp. of S.C., 369 S.C. 150, 153, 631 S.E.2d 533, 535 (2006)
("The granting of leave to deposit money with the court pursuant to Rule
67, SCRCP is a matter within the discretion of the trial court and will not be
overturned absent an abuse of that discretion." (citation omitted)).

6.  As to whether
the family court erred by awarding Wife prejudgment interest on the money
judgment for underpayment of wages, we find Wife did not waive her right to
seek prejudgment interest.  See Osterneck v. Ernst & Whinney,
489 U.S. 169, 175 (1989) (holding a motion for prejudgment interest filed after
the entry of judgment constitutes a Rule 59(e), SCRCP, motion to alter or amend
the judgment).  However, we remand the award for reconsideration after making
the findings herein regarding the salary provision.  See Babb v.
Rothrock, 310 S.C. 350, 353, 426 S.E.2d 789, 791 (1993) ("The law
allows prejudgment interest on obligations to pay money from the time when,
either by agreement of the parties or operation of law, the payment is
demandable, if the sum is certain or capable of being reduced to
certainty." (citation omitted)).

7.  As to whether
the family court erred by awarding Wife $4,504.62 in attorney's fees in connection
to Wife's motion to compel, we find no error.[1]  See High v. High, 389 S.C. 226, 249, 697 S.E.2d 690, 702 (Ct.
App. 2010) (providing the award of attorney's fees in a domestic action rests
within the sound discretion of the family court and will not be reversed absent
an abuse of discretion); Dickert v. Dickert, 387 S.C. 1, 10–11, 691 S.E.2d
448, 453 (2010) (holding the family court did not abuse its discretion in
awarding attorney's fees when it properly considered the E.D.M. and Glasscock factors).

8.  As to whether
the family court erred by finding Husband was not required to reimburse Wife
for underpaying the mortgage on the marital home, we find the family court
correctly determined Husband was not responsible under the Agreement for paying
the increase in mortgage payments that occurred from Wife's refinancing of the
marital home.  See Miles v. Miles, 393 S.C. 111, 117, 711 S.E.2d
880, 883 (2011) (holding the interpretation of marital agreements is a matter
of contract law); Nicholson v. Nicholson, 378 S.C. 523, 532, 663 S.E.2d
74, 79 (Ct. App. 2008) ("The court's only function with an agreement that
is clear and capable of legal construction is to interpret its lawful meaning
and the intention of the parties as found within the agreement and to give them
effect." (citation omitted)).

9.  As to whether the family court erred by granting Husband a setoff
in the amount of $23,875.00 for money Husband paid to repair Wife's non-marital
home, and a setoff in the amount of $2,800.00 for money that Husband paid for
therapy expenses, we find no error.  See Smith v. Smith, 386 S.C.
251, 261, 687 S.E.2d 720, 726 (Ct. App. 2009) ("[N]o family court rule
governs the construction of pleadings."); Rule 2(a), SCRFC (providing the
rules of civil procedure apply in domestic relations actions with limited
exceptions); Rule 8(c), SCRCP (requiring a party to set forth any affirmative
defenses in the pleadings); Broome v. Watts, 319 S.C 337, 342, 461
S.E.2d 46, 49 (1995) ("Rule 8(c) does not list setoff as an affirmative
defense which must be pled in order to be pursued at trial."); Rule 8(f),
SCRCP (providing all pleadings must be construed to provide substantial justice
to all parties); Smalls v. S.C. Dep't of Educ., 339 S.C. 208, 219, 528
S.E.2d 682, 688 (Ct. App. 2000) ("The trial court's jurisdiction to set
off one judgment against another is equitable in nature and should be exercised
when necessary to provide justice between the parties." (citation omitted)).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.

[1] This award of attorney's fees is completely separate
from the award of attorney's fees in connection with Wife's rule to show cause.