Burdeshaw v. Burdeshaw

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

Galen E. Burdeshaw, Appellant,

v.

Jennifer Marie Burdeshaw, Respondent.

Appellate Case No. 2017-001337

Appeal From Greenville County
Rochelle Y. Conits, Family Court Judge,
Harry LaDon Phillips, Jr., Family Court Judge, and
Katherine H. Tiffany, Family Court Judge

Unpublished Opinion No. 2020-UP-105
Heard October 9, 2019 – Filed April 8, 2020

AFFIRMED IN PART AND REVERSED IN PART

Melissa D. Spivey, of The Spivey Law Group, LLC, of
Mauldin, for Appellant.

Gwendolynn Wamble Barrett, of Barrett Mackenzie,
LLC, of Greenville, for Respondent.

Robert A. Clark, of Greenville, for the Guardian ad
Litem.
PER CURIAM: In this appeal from orders of the family court, Galen Burdeshaw
(Husband) argues the family court erred in (1) issuing a decree of divorce and final
order (the Final Order) before hearing his contempt action against Jennifer
Burdeshaw (Wife) and denying his motion for a new trial; (2) declining to hear his
amended contempt complaint against Wife; (3) considering Wife's memorandum
of law in making its determination on Husband's contempt action; (4) granting
Wife's motion to reconsider the Final Order and awarding her the dependent tax
exemption; (5) awarding Wife primary custody of the parties' child (Daughter); (6)
failing to find Wife in contempt; (7) apportioning the marital estate; and (8)
awarding Wife attorney's fees. We affirm in part and reverse in part.1

1. We find Husband waived any challenge to the family court's issuance of the
Final Order prior to hearing his contempt action against Wife. At the close of trial,
the family court stated its intention on the record to take the divorce action under
advisement and begin preparing the Final Order. Husband neither objected to this
statement nor made a request that the court hear the contempt action before issuing
the Final Order. Although Husband alleged the family court erred by issuing the
Final Order before hearing the contempt action in his motion to reconsider the
Final Order, we find Husband failed to timely raise this issue to the family court
when the issue first presented itself. See Susan R. v. Donald R., 389 S.C. 107, 118,
697 S.E.2d 634, 640 (Ct. App. 2010) (providing that a party cannot use a Rule
59(e), SCRCP, motion to present to the family court an issue the party could have
raised prior to judgment but failed to do so); Hickman v. Hickman, 301 S.C. 455,
456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party cannot use Rule 59(e) to
present to the court an issue the party could have raised prior to judgment but did
not.").

We further find the family court did not err in denying Husband's motion for a new
trial. Husband contends the family court erred in denying his motion for a new
trial because his contempt action was not heard until three years after it was filed
and his motion to reconsider the Final Order was not heard until two years after it
was filed. Husband therefore contends the record was stale. We disagree.
Although we acknowledge the span of time between the filing of Husband's
motions and their ultimate resolution, we find the family court did not err in
denying Husband's motion for a new trial. First, regarding Husband's contempt
action, we find the passage of time is irrelevant as Husband was bound by the

1
"Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings." Stone v. Thompson, 428 S.C. 79, 91, 833
S.E.2d 266, 272 (2019).
violations alleged in his complaint and the subsequently issued rule to show cause.
Similarly, as to Husband's motion to reconsider, we find the passage of time had no
impact on the outcome as all of the evidence had already been presented to the
family court, and Husband was bound by this evidence. We note the proper
avenue for Husband to present new evidence regarding custody would have been
through a motion seeking a custody modification. See Latimer v. Farmer, 360 S.C.
375, 381, 602 S.E.2d 32, 35 (2004) ("In order for a court to grant a change in
custody, there must be a showing of changed circumstances occurring subsequent
to the entry of the divorce decree." (emphasis added)); Cook v. Cobb, 271 S.C.
136, 143, 245 S.E.2d 612, 616 (1978) ("Generally, the change of conditions which
justifies a change of custody must occur after the date of a decree establishing
custody, and before the action seeking to upset custody is filed."). Further, we note
Husband's numerous requests for a continuance of the contempt hearing
consequently delayed the resolution of his motion to reconsider as the family court
held the remaining issues of the motion to reconsider in abeyance until the hearing
of the contempt action.

2. We find the family court did not err in declining to hear Husband's amended
contempt complaint. A motion to amend the pleadings is left to the sound
discretion of the family court. Griffith v. Griffith, 332 S.C. 630, 636, 506 S.E.2d
526, 529 (Ct. App. 1998); see also Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813
S.E.2d 486, 486 n.2 (2018) (per curiam) (providing that on appeal from the family
court, this court reviews evidentiary and procedural rulings for an abuse of
discretion). "The rule to show cause, and the supporting affidavit or verified
petition, shall be served, . . . , not later than ten days before the date specified for
the hearing, unless a different notice period is fixed by the issuing judge within the
rule to show cause." Rule 14(d), SCRFC (emphasis added). In the instant case,
Husband moved to amend the contempt complaint, and the family court issued an
amended rule to show cause less than ten days before the scheduled hearing.
However, the family court failed to specify a different notice period within the
amended rule to show cause. Accordingly, Wife did not receive proper notice of
Husband's additional allegations of contempt. Thus, we find the family court
properly denied Husband's motion to amend the contempt complaint. Further, we
agree with the family court that the proper avenue for Husband to pursue new
evidence of contempt is through a separate contempt action.

3. We find the family court did not err in considering Wife's supplemental
memorandum in making its determination on Husband's contempt action. During
the contempt hearing, the family court notified the parties of its intention to take
the matter under advisement to fully review all relevant portions of the record. The
court further requested the parties submit a memorandum noting the specific
exhibits and portions of the trial transcript that "tend to prove [their] position."
Neither party objected to this request. Following the hearing, Wife submitted a
memorandum complying with the court's request, which noted the relevant exhibits
and portions of the trial transcript tending to show her compliance with the
temporary orders. Husband also submitted a memorandum. We find Wife acted in
compliance with the family court's request, and therefore, the family court did not
err in considering her memorandum when making its determination. See also
Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2 (providing that on appeal from
the family court, this court reviews evidentiary and procedural rulings for an abuse
of discretion). Further, Wife's memorandum did not present any new evidence or
arguments but, rather, responded to the allegations set forth by Husband during the
hearing.

4. We find the family court erred in awarding Wife the dependent tax exemption.
Husband argues the family court erred in considering child support and the tax
exemption together and in finding Wife could benefit from claiming Daughter as a
dependent based on Wife's income. We agree. Subsection 20-3-130(F) of the
South Carolina Code (2014) provides, "The Family Court may allocate the right to
claim dependency exemptions pursuant to the Internal Revenue Code and under
corresponding state tax provisions . . . ." The South Carolina Child Support
Guidelines (the Guidelines) stipulate that they are based on the assumption that the
parent who is required to pay child support will only have one federal exemption
and higher taxes than the parent who is owed child support, but it notes that the
Schedule of Basic Child Support Obligations adjusts for that with lower child
support payments.2 Despite the assumption in the Guidelines, this court has held
the family court may allocate a dependent tax exemption to a noncustodial parent.
See Hudson v. Hudson, 340 S.C. 198, 204–05, 530 S.E.2d 400, 403–04 (Ct. App.
2000) (holding that the family court may allocate a dependent tax exemption to the
noncustodial parent); Engle v. Engle, 343 S.C. 444, 447, 454, 539 S.E.2d 712, 713,
717 (Ct. App. 2000) (affirming the family court's award of the dependent tax
exemption to the noncustodial father when the family court reasoned the father
earned the greater income and would benefit most from the exemption). At the
time of trial, Wife's gross monthly income was $644.33 per month, and Husband's
gross monthly income was $9,046. When asked if the dependent tax exemption

2
South Carolina Child Support Guidelines 3 (2014),
https://dss.sc.gov/media/1585/2014-child-support-guidelines-booklet.pdf; see
generally S.C. Code Ann. Regs. 114-4710 (Supp. 2019) ("The Child Support
Guidelines are available to be used for . . . divorce and child support awards.").
would be more beneficial to Husband, Wife's attorney stated "maybe for now, but
not necessarily forever." Although Wife argues she receives a benefit from
claiming Daughter as a dependent on her taxes because she receives an earned
income credit (EIC),3 the certified public accountant's (CPA) affidavit asserted
Wife would receive the EIC without claiming Daughter as a dependent, and we did
not find any contrary evidence in the record.4 Thus, we find the family court erred
in awarding Wife the dependent tax exemption. Accordingly, we reverse the
family court's order as to this issue.

5. We find the family court did not err in awarding Wife primary custody of
Daughter. See Divine v. Robbins, 385 S.C. 23, 32, 683 S.E.2d 286, 291 (Ct. App.
2009) (providing that the controlling considerations in all child custody
controversies are the child's welfare and best interest); S.C. Code Ann.
§ 63-15-230(A) (Supp. 2019) ("The court shall make the final custody
determination in the best interest of the child based upon the evidence presented.");
Bojilov v. Bojilov, 425 S.C. 161, 176, 819 S.E.2d 791, 800 (Ct. App. 2018)
(alterations in original) ("In making its custody determination, '[t]he family court
must consider the character, fitness, attitude, and inclinations on the part of each
parent as they impact the child,' and it should also consider 'the psychological,
physical, environmental, spiritual, educational, medical, family, emotional[,] and
recreational aspects of the child's life.'" (quoting Woodall v. Woodall, 322 S.C. 7,
11, 471 S.E.2d 154, 157 (1996))); Brown v. Brown, 412 S.C. 225, 239, 771 S.E.2d
649, 656 (Ct. App. 2015) (providing that it is also appropriate for the family court
to consider the opinions of third parties, including the GAL and expert witnesses);
Woodall, 322 S.C. at 11, 471 S.E.2d at 157 ("[A]ll the conflicting rules and
presumptions should be weighed together with all of the circumstances of the
particular case, and all relevant factors must be taken into consideration."); S.C.

3
In a hearing on Wife's motion to reconsider, Wife's attorney indicated Wife
would qualify for an EIC, but Wife would have to list a qualifying child to do so,
and therefore, Wife needed to be able to claim Daughter on her income taxes.
4
Wife also argues if she begins working more so that she makes her imputed
income, she would not be able to claim work-related daycare costs as a tax
exemption because she would not be able to claim Daughter as a dependent.
However, this argument is speculative, and Wife may petition the family court for
a reallocation of the dependent tax exemption based upon changed circumstances
should this occur. See Hudson, 340 S.C. at 207–08, 530 S.E.2d at 405 (finding the
family court may reallocate the dependent tax exemption upon a showing of actual
changed circumstances warranting the reallocation under the facts as they then
exist).
Code Ann. § 63-3-530(A)(42) (2010) (providing that the family court has
jurisdiction to order joint custody when it finds it is in the best interest of the
child); S.C. Code Ann. § 63-15-240(B) (Supp. 2019) (providing a nonexclusive list
of seventeen factors the family court may consider when determining the best
interest of the child); Lewis v. Lewis, 400 S.C. 354, 367, 734 S.E.2d 322, 328–29
(Ct. App. 2012) (providing that South Carolina courts are "particularly reluctant to
award joint custody between estranged and quarrelsome parents"). We find
Husband failed to show exceptional circumstances warranting an award of joint
custody, and our review of the record supports the conclusion that joint custody in
this case would not be in the best interest of Daughter given the acrimonious
relationship between Husband and Wife.

6. We find the family court did not err in failing to find Wife in contempt. See
Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 705 (Ct. App. 2001) ("The
power to punish for contempt is inherent in all courts and is essential to
preservation of order in judicial proceedings." (quoting In re Brown, 333 S.C. 414,
420, 511 S.E.2d 351, 355 (1998))); id. ("Contempt results from the willful
disobedience of a court order, and before a court may find a person in contempt,
the record must clearly and specifically reflect the contemptuous conduct."); S.C.
Dep't of Soc. Servs. v. Johnson, 386 S.C. 426, 435, 688 S.E.2d 588, 592 (Ct. App.
2009) ("Once a moving party makes out a prima facie case of contempt by
pleading the order and showing its noncompliance, the burden shifts to the
respondent to establish his defense and inability to comply."); Miller v. Miller, 375
S.C. 443, 454, 652 S.E.2d 754, 760 (Ct. App. 2007) (providing that the family
court has the discretion to punish by fine or imprisonment all contempt of authority
before the court); id. at 455, 652 S.E.2d at 760 ("In addition, courts have the
inherent power to punish for offenses that are calculated to obstruct, degrade, and
undermine the administration of justice." (quoting Brandt v. Gooding, 368 S.C.
618, 628, 630 S.E.2d 259, 264 (2006))); Poston v. Poston, 331 S.C. 106, 113, 502
S.E.2d 86, 89 (1998) ("Civil contempt must be proven by clear and convincing
evidence."). On appeal, Husband raises numerous allegations of Wife's
contemptuous conduct. We find Husband failed to meet his burden of proof as to
all alleged grounds. See Widman, 348 S.C. at 119, 557 S.E.2d at 705 ("Contempt
results from the willful disobedience of a court order, and before a court may find a
person in contempt, the record must clearly and specifically reflect the
contemptuous conduct."); Posner v. Posner, 383 S.C. 26, 31, 677 S.E.2d 616, 619
(Ct. App. 2009) (providing that under de novo review of family court matters, the
appellant maintains the burden of convincing the appellate court that the family
court's findings were made in error or were unsubstantiated by the evidence).
7. We find the family court did not err in apportioning the marital estate. See
Crossland v. Crossland, 408 S.C. 443, 456, 759 S.E.2d 419, 426 (2014)
("Equitable distribution of marital property 'is based on the recognition that
marriage is, among other things, an economic partnership.'" (quoting Morris v.
Morris, 335 S.C. 525, 531, 517 S.E.2d 720, 723 (Ct. App. 1999))); S.C. Code Ann.
§ 20-3-630(A) (2014) (providing that "marital property" means "all real and
personal property which has been acquired by the parties during the marriage and
which is owned as of the date of filing or commencement of marital litigation . . .
regardless of how legal title is held"); Pirri v. Pirri, 369 S.C. 258, 270, 631 S.E.2d
279, 285 (Ct. App. 2006) ("Property acquired prior to the marriage is generally
considered nonmarital."); § 20-3-630(A)(3) (providing that property acquired by a
party in exchange for property acquired before the marriage is also nonmarital);
Brown v. Odom, 425 S.C. 420, 431, 823 S.E.2d 183, 188 (Ct. App. 2019)
(providing that when a marriage is dissolved, the distribution of the marital estate
should be in a manner that "fairly reflects each spouses' contribution to its
acquisition, regardless of who holds legal title"); Wilburn v. Wilburn, 403 S.C. 372,
384, 743 S.E.2d 734, 740 (2013) ("Property that is nonmarital when acquired may
be transmuted into marital property if it becomes so commingled with marital
property that it is no longer traceable, is titled jointly, or is used by the parties in
support of the marriage or in some other way that establishes the parties' intent to
make it marital property."); Pirri, 369 S.C. at 270, 631 S.E.2d at 286
("Transmutation is a matter of intent to be gleaned from the facts of each case."
(quoting Jenkins v. Jenkins, 345 S.C. 88, 98, 545 S.E.2d 531, 537 (Ct. App.
2001))); id. (providing that the spouse claiming transmutation has the burden of
producing "objective evidence that the parties considered the property to be marital
during the marriage"); see also Dawkins v. Dawkins, 386 S.C. 169, 173–74, 687
S.E.2d 52, 54 (2010) (per curiam) (providing that an inheritor's right for special
consideration upon divorce is not extinguished by the transmutation of the
inherited nonmarital property into marital property), abrogated on other grounds
by Lewis v. Lewis, 392 S.C. 381, 384–86, 708 S.E.2d 650, 651–52 (2011); Toler v.
Toler, 292 S.C. 374, 380, 356 S.E.2d 429, 432 (Ct. App. 1987) (holding that the
proceeds from the sale of the husband's inherited property lost their nonmarital
character when the husband used the proceeds to purchase a farm, which was titled
in both parties' names and was used as the primary source of support for the
marriage); Fredrickson v. Schulze, 416 S.C. 141, 149–50, 785 S.E.2d 392, 397 (Ct.
App. 2016) (affirming the family court's consideration of the wife's substantial
contribution to the down payment of the family home using premarital funds when
determining the percentage of the marital estate that each party was entitled to
upon distribution). In the instant case, we find the family court properly treated
Husband's down payment in the same manner as the inheritances in Toler and
Dawkins and the down payment in Fredrickson—as a consideration when
determining the percentage of the marital estate Husband was equitably entitled to.
We find the family court properly declined to subtract Husband's down payment
from the marital estate. Our review of the record supports Wife's contention that
the down payment was transmuted into marital property because the home was
titled in both parties' names, the initial mortgage listed both parties, and Wife was
only removed from the mortgage because Husband was able to get a lower interest
rate when the parties' refinanced the home. Further, Husband agreed he had no
intention of getting divorced and he had an intent to make it joint marital property.
Accordingly, we find the family court did not err in declining to apportion
Husband a dollar-for-dollar credit for his down payment on the marital home.

8. As to attorney's fees, we find the family court did not err in its determination
that Wife should be awarded attorney's fees; however, we find the family court did
err in its calculation of those fees. See S.C. Code Ann. § 20-3-130(H) (2014)
(authorizing the family court to order payment of litigation expenses, such as
attorney's fees, to either party in family matters); E.D.M. v. T.A.M., 307 S.C. 471,
476–77, 415 S.E.2d 812, 816 (1992) (holding that when determining whether to
award attorney's fees, the family court should consider the following factors: "(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) [the] effect
of the attorney's fee on each party's standard of living"); Spreeuw v. Barker, 385
S.C. 45, 71, 682 S.E.2d 843, 856 (Ct. App. 2009) (providing that when deciding
the amount of attorney's fees to award, the family court should consider the "(1)
nature, extent, and difficulty of the case; (2) 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"
(citing Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991)));
Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010) ("This
court has previously held when parties fail to cooperate and their behavior
prolongs proceedings, this is a basis for holding them responsible for attorney's
fees."). The Final Order required Husband to pay $20,000 of Wife's attorney's
fees, and the March 20, 2017 order required Husband to pay $5,000 in attorney's
fees for the contempt action and $5,000 in attorney's fees for the motions to
reconsider. Although the March 20, 2017 order indicated Husband was not
successful in his motion to reconsider, we find Husband was successful in
obtaining the right of first refusal, in obtaining a reduction in monthly child
support payments, in having the payment of Wife's equitable division award
incorporated into a qualified domestic relations order, and in defending against
Wife's motion to alter the visitation schedule. Moreover, as discussed above, we
reverse the family court's award of the dependent tax exemption to Wife.
Accordingly, we decrease Wife's award of attorney's fees resulting from the
various motions to reconsider, as delineated in the March 20, 2017 order, to
$2,500. See Myers v. Myers, 391 S.C. 308, 322, 705 S.E.2d 86, 94 (Ct. App. 2011)
(finding that when an appellate court's decision diminishes a party's beneficial
results, the appellate court may adjust the entitlement to attorney's fees instead of
remanding the award of attorney's fees for reconsideration). We affirm Wife's
award of $20,000 in attorney's fees issued in the Final Order and the award of
$5,000 in attorney's fees issued in the March 20, 2017 order as to the contempt
action.

AFFIRMED IN PART AND REVERSED IN PART.

HUFF, WILLIAMS, and MCDONALD, JJ., concur.