Manigault v. Manigault

THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Janice
Manigault, Appellant,

v.

Charles Howard
Manigault, Respondent.

Appeal from Charleston County

Jocelyn B. Cate, Family Court Judge

Unpublished Opinion No. 2008-UP-221

Submitted April 1, 2008 – Filed April 11, 2008

AFFIRMED

Veronica G. Small, of North Charleston, for Appellant.

Gregory Forman, of Charleston, for Respondent.

PER
CURIAM:  Janice Manigault (Wife)
appeals the family court’s denial of her motion to reconsider reopening her
divorce action against Charles Howard Manigault (Husband). We affirm.[1]

FACTS

On August 27, 2002,
Wife brought an action for divorce and equitable distribution from Husband on
the basis of adultery, after twenty-seven years of marriage.  Husband retained
counsel, and on November 15, 2002, filed an answer and counter-claim,
requesting an equitable distribution of the marital assets.

At a pretrial
hearing held August 30, 2005, the parties were instructed to enter into
mediation prior to trial and trial date was set for January 5, 2006.  While
Husband’s counsel attended the pretrial hearing, Husband was not present.  On
December 12, 2005, Husband’s counsel filed an ex-parte motion and order to be
relieved as Husband’s counsel.  Mediation took place December 29, 2005, seventeen
days after Husband’s counsel’s motion to be relieved as counsel was granted.  Nevertheless,
the parties reached an agreement during mediation.  This agreement was reduced
to writing by the mediator in a letter, but not signed by either party. 
Husband and Wife anticipated this letter would be published and approved by the
family court at the final hearing.

Husband failed to
appear at the final hearing, and did not request a continuance.  Wife informed
the family court an agreement was reached at mediation, but did not inform the
court the agreement was memorialized in a letter by the mediator.  Instead, the
Wife went forward with the trial in Husband’s absence.

Husband was served
by mail the final order and decree of divorce, and subsequently filed a notice
of motion and motion pursuant to Rule 59, SCRCP, to vacate the final order and
decree.  A hearing on Husband’s motion was held June 12, 2006, and the record
was left open to receive an affidavit from Husband’s original counsel.  On July
28, 2006, the family court granted Husband’s motion to vacate and reopen the
case, stating:

After
reviewing the file, the affidavits submitted and hearing argument of counsel,
this court issues the following order:

1.
This court grants [Husband’s] motion to vacate the
final order and reopen the case.  The court does this because
although the court was informed at the January 5, 2006 [sic] final
hearing that the parties may have reached a mediated agreement, it
was not revealed that there was a December 29, 2005 [sic] letter
from the mediator, Kathleen Moraska Ferri memorializing the terms of the Agreement.  Had the court
been informed of this, it would have briefly stayed the proceedings in an
attempt to locate [Husband] and determine if the mediated agreement was in fact
the parties’ agreement.  It was further represented to the Court by [Wife’s]
counsel that she in fact hoped that the mediated agreement would be placed on
the record that day.

 

2.
If the parties are willing to have the mediated
agreement become the final order of the court, they may set a
hearing to have that agreement approved.

 

3.
If either party is unwilling to have the mediated
agreement become the final order of the court, this matter shall be
set for an expedited pre-trial to set this matter for trial.

Wife
filed a motion to reconsider the order to reopen and to allow the final order
and decree of divorce to remain in full force and effect, alleging there was no
legal basis for granting a new trial.  The family court denied Wife’s motion to
reconsider.

DISCUSSION

Wife
contends the family court erred by denying her motion to reconsider its grant
of Husband’s motion to vacate the final order and reopen the case.  We
disagree.

“We
will reverse the family court’s granting of a new trial only where the grant
constituted an abuse of discretion amounting to an error of law.”  Blejski
v. Blejski, 325 S.C. 491, 497, 480 S.E.2d 462, 466 (Ct. App. 1997); Howard
v. Roberson, ___ S.C. ___, 654 S.E.2d 877, 880 (Ct. App. 2007) (“‘The grant
or denial of new trial motions rests within the discretion of the trial judge
and his discretion will not be disturbed on appeal unless his findings are
wholly unsupported by the evidence or the conclusions reached are controlled by
error of law.’”) (quoting Chapman v. Upstate RV & Marine, 364 S.C.
82, 88-89, 610 S.E.2d 852, 856 (Ct. App. 2005) (citing Vinson v. Harley,
324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct. App. 1996))); Trivelas v. S.C.
Dep’t of Transp., 357 S.C. 545, 553, 593 S.E.2d 504, 508 (Ct. App. 2004); Henson
v. Int’l Paper Co., 358 S.C. 133, 146, 594 S.E.2d 499, 506 (Ct. App. 2004)
(Anderson, J., concurring in part and dissenting in part) (quoting Stevens
v. Allen, 336 S.C. 439, 446, 520 S.E.2d 625, 628-629 (Ct. App. 1999)
(citing Vinson v. Hartley, 324 S.C. 389, 404, 477 S.E.2d 715, 722 (Ct.
App. 1996))); State v. Taylor, 348 S.C. 152, 159, 558 S.E.2d 917, 920
(Ct. App. 2001) (“It is well settled that the grant or refusal of a new trial
is within the sound discretion of the trial judge.”) (citing State v.
Simmons, 279 S.C. 165, 166, 303 S.E.2d 857, 858 (1983)).  See Kennedy
v. Griffin, 358 S.C. 122, 127, 595 S.E.2d 248, 250 (Ct. App. 2004) (“The
denial of a motion for a new trial is within the trial judge’s discretion and
will not be reversed on appeal absent an abuse of discretion.”); Waring v.
Johnson, 341 S.C. 248, 256, 533 S.E.2d 906, 910 (Ct. App. 2000).

“[T]he
exercise of that discretion must be in accord with sound legal principles and
practice. . . . [V]erdicts found after regular and legal trial in a competent
court ought not lightly be disturbed.”  Harrington v. Nicholson, 182
S.C. 38, 41, 188 S.E. 372, 373 (1936).  “An abuse of discretion arises when the
trial court was controlled by an error of law or when the order is without
evidentiary support.”  Hillman v. Pinion, 347 S.C. 253, 255, 554 S.E.2d
427, 429 (Ct. App. 2001); Miller v. Miller, 375 S.C. 443, 452, 652
S.E.2d 754, 759 (Ct. App. 2007) (quoting Townsend v. Townsend, 356 S.C.
70, 73, 587 S.E.2d 118, 119 (Ct. App. 2003)).

In
the instant case, the judge granted a new trial when she learned the parties’
mediated agreement was reduced to writing by the mediator but not presented to
the court at trial by Wife’s counsel in Husband’s absence.  The judge reasoned
she would have briefly stayed the proceedings to contact Husband to gain his
consent.  Given the judge’s delayed knowledge of the written mediation
agreement, it was within the court’s discretion to grant a new trial.  We find
no abuse of discretion in this situation.  Because the court did not abuse its
discretion in granting a new trial, we elect not to address Husband’s arguments
to ignore Wife’s July 28, 2006, and October 13, 2006, affidavits and his
alleged lack of notice.

Accordingly,
we

AFFIRM.

ANDERSON, SHORT
and THOMAS, JJ., concur.

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