Howell v. Howell

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

Mary L. Howell, Respondent,

v.

Mark E. Howell, Appellant.

Appellate Case No. 2013-002545

Appeal From Berkeley County
Judy L. McMahon, Family Court Judge

Unpublished Opinion No. 2015-UP-263
Heard April 21, 2015 – Filed May 20, 2015

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Joseph P. Cerato, of Charleston, for Appellant.

Michael Ashley Whitsitt, of The Whitsitt Law Firm, of
Mount Pleasant, for Respondent.

PER CURIAM: Mark E. Howell (Husband) appeals the family court's order
holding him in contempt. He argues the family court erred in (1) issuing a rule to
show cause despite his prior compliance with the court order, (2) modifying a final
equitable distribution order, (3) exceeding its authority to enforce the final
equitable distribution order by adding terms to the order, (4) granting relief not
requested by Mary L. Howell (Wife) and of which Husband had no notice, and (5)
prematurely modifying the equitable distribution order before considering evidence
to determine if the parties could comply with the terms of the modification. We
affirm in part, reverse in part, and remand.

1. We find the family court did not err in issuing a rule to show cause. During the
hearing on the parties' motions to reconsider, Husband stated he was not asking the
family court to reconsider its finding of contempt. He further stated, "I'm not
arguing that you shouldn't hold him in contempt. I'm not. I'm not arguing any part
of the order other than the part that changes the equitable division." Although, on
appeal, Husband challenged the contempt finding in his brief, he again stated
during oral argument that he was not challenging the family court's finding of
contempt but was instead focusing on the issue of the modification of the equitable
distribution order.

"An issue conceded in a lower court may not be argued on appeal." TNS Mills,
Inc. v. S.C. Dep't of Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998); see
also State v. Bryant, 372 S.C. 305, 315-16, 642 S.E.2d 582, 588 (2007) (finding
because the appellant conceded the trial court's ruling was not prejudicial, he could
not later assert on appeal that the ruling denied him a fair trial); Ex parte
McMillan, 319 S.C. 331, 335, 461 S.E.2d 43, 45 (1995) (finding an issue
procedurally barred when the appellants expressly conceded the issue at trial).
Because Husband conceded the contempt issue during a hearing before the family
court and again on appeal, we find the issue of contempt waived. Thus, we affirm
the family court's decision to hold Husband in contempt.

2. We find the family court erred in crafting a civil contempt sanction that
modified the parties' equitable distribution order. Generally, the family court has
the authority to modify any order issued by the court. S.C. Code Ann. § 63-3-
530(A)(25) (2010). However, "the law in South Carolina is exceedingly clear that
the family court does not have the authority to modify court ordered property
divisions." Green v. Green, 327 S.C. 577, 581, 491 S.E.2d 260, 262 (Ct. App.
1997) (emphasis added). Rather, "[t]he [family] court's order as it affects
distribution of marital property shall be a final order not subject to modification
except by appeal or remand following proper appeal." S.C. Code Ann. § 20-3-
620(C) (2014). Additionally, "[t]his [s]tate has a long-standing rule that one judge
of the same court cannot overrule another." Shirley's Iron Works, Inc. v. City of
Union, 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013)
In Brown v. Brown, this court addressed whether the family court's modification of
the property distribution provision of a divorce decree was permissible as a
correction of a clerical mistake under Rule 60(a), SCRCP, or whether it altered the
substance of the equitable distribution order. 392 S.C. 615, 621-23, 709 S.E.2d
679, 683-84 (Ct. App. 2011). Under the divorce decree, the wife had the option of
purchasing the husband's equity in the marital home for $60,191.02. Id. at 619,
623, 709 S.E.2d at 681, 683. If she declined to exercise the option, "both the date
[the h]usband's equitable share was due and the amount he would receive, up to
$60,191.02, remained undetermined and contingent upon the sale of the home." Id.
at 623, 709 S.E.2d at 683. However, the family court's subsequent order
established that the husband was to receive a sum certain of $60,191.02, rather
than 32.14% of the net proceeds not to exceed $60,191.02 as required in the
divorce decree. Id. at 619, 623, 709 S.E.2d at 681, 683. The subsequent order also
stated the husband was to receive the payment as of a specified date, rather than
receiving his payment when the marital home sold as required in the divorce
decree. Id. at 619, 623, 709 S.E.2d at 681, 683-84. In reversing the family court's
subsequent order, this court found the family court's determination "recharacterized
a portion of [the h]usband's award and imposed additional terms upon the parties
that did not exist at the time the divorce decree was entered." Id. at 622-23, 709
S.E.2d at 683. Additionally, this court held the family court's subsequent order
"significantly changed [the] terms, thereby altering the substance and scope of the
[divorce decree]." Id. at 623, 709 S.E.2d at 683.

In the instant case, Husband and Wife agreed that "[a]t such time as the property
may be sold," they would "equally divide the net proceeds derived from any sale."
However, the family court later imposed a civil contempt sanction in which
Husband was required to pay Wife one-half of the rent collected each month from
the apartment complex (Property) as an "advance on her rights of equitable
distribution." As in Brown, this order materially altered the parties' agreement
regarding the equitable division of the Property. Instead of Wife receiving
whatever equity remains in the Property upon its sale, as required in the agreement,
the contempt order required Husband to pay Wife one-half of the rent collected
each month after Husband's payment of the mortgage, taxes, and insurance as an
"advance on her rights of equitable distribution." Accordingly, we find the family
court improperly modified the equitable distribution order when it imposed the
above sanction. See S.C. Code Ann. § 20-3-620(C) ("The [family] court's order as
it affects distribution of marital property shall be a final order not subject to
modification except by appeal or remand following proper appeal.").
Furthermore, we disagree with Wife's contention that the family court's order
requiring Husband to pay Wife half of the rents could be construed as a remedial
award of compensatory damages crafted to purge Husband of his civil contempt
for violating Wife's rights. "Courts, by exercising their contempt power, can award
attorney's fees under a compensatory contempt theory." Harris-Jenkins v. Nissan
Car Mart, Inc., 348 S.C. 171, 178, 557 S.E.2d 708, 711 (Ct. App. 2001).
"Compensatory contempt is a money award for the plaintiff when the defendant
has injured the plaintiff by violating a previous court order." Curlee v. Howle, 277
S.C. 377, 386, 287 S.E.2d 915, 919 (1982). "Compensatory contempt seeks to
reimburse the party for the costs it incurs in forcing the non-complying party to
obey the court's orders." Miller v. Miller, 375 S.C. 443, 463, 652 S.E.2d 754, 764
(Ct. App. 2007). "[T]he compensatory award should be limited to the
complainant's actual loss." Curlee, 277 S.C. at 387, 287 S.E.2d at 920. "Included
in the actual loss are the costs in defending and enforcing the court's order,
including litigation costs and attorney's fees." Id. The complainant bears the
burden of demonstrating what amount, if anything, she "is entitled to recover by
way of compensation." Id.

We find the provision requiring Husband to pay Wife half of the rents cannot be
construed as compensatory contempt. An award of compensatory contempt should
be used to reimburse Wife for the costs she incurred to force Husband to comply
with the court's order and should be the equivalent of Wife's actual damages. See
id. ("[T]he compensatory award should be limited to the complainant's actual
loss."); Miller, 375 S.C. at 463, 652 S.E.2d at 764 ("Compensatory contempt seeks
to reimburse the party for the costs it incurs in forcing the non-complying party to
obey the court's orders."). The family court never referred to the division of rent
proceeds as compensatory contempt in its order. Instead, it explicitly stated Wife
would be receiving these proceeds as an "advance on her rights of equitable
distribution" because Wife "has a 50% interest" in the Property and business. We
fail to see how giving Wife her portion of the equity in the Property now, rather
than when the Property sells as required by the parties' agreement, can be
construed as reimbursing Wife for the costs she incurred in bringing the contempt
action. Thus, we reverse this portion of the family court's contempt order. While
the family court may impose a fine, a public works sentence, or a term of
imprisonment on Husband as a contempt sanction, S.C. Code Ann. § 63-3-620
(Supp. 2014), its sanction may not modify the parties' equitable distribution order.
Therefore, we remand for the family court to issue an order setting forth a
contempt sanction that complies with this opinion.
3. In light of our reversal of the family court's improper modification of the
equitable distribution order, our opinion need not address the merits of the other
issues raised on appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding appellate courts need not
address remaining issues when the resolution of a prior issue is dispositive).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.