Smith v. Smith

Citation359 S.C. 393,597 S.E.2d 188
Decision Date24 May 2004
Docket NumberNo. 3801.,3801.
CourtCourt of Appeals of South Carolina
PartiesHugh McIntyre SMITH, Respondent, v. Mary Elizabeth Dixon SMITH, Appellant.

Carolyn R. Hills, of Myrtle Beach, for Appellant.

James B. Richardson, Jr., of Columbia and James R. Honeycutt, of Fort Mill, for Respondent.

HEARN, C.J.:

Mary Elizabeth Dixon Smith ("Wife") filed an order and rule to show cause seeking to hold Hugh McIntyre Smith ("Husband") in contempt for failing to pay alimony. The trial judge declined to hold Husband in contempt, finding Husband did not willfully disobey the court order. We affirm.

FACTS

Husband and Wife divorced on January 19, 1998. Their settlement agreement provided that Wife would receive $3,000 per month in alimony. However, the agreement acknowledged that Husband was nearing retirement and that his retirement would constitute a change in circumstances for the purpose of computing alimony. Specifically, the order stated: "In the event the Husband so retires, the parties acknowledge that this shall constitute a change in circumstances and the Court shall review the financial condition of the parties to determine what, if any, sum of alimony will be appropriate thereafter." The agreement also provided that Husband would pay, after his retirement, a portion of his Social Security benefit each month to Wife.

Upon his retirement in August 1999, Husband stopped paying the $3,000 per month in alimony and has not paid any further alimony, except for a portion of what he receives in Social Security benefits pursuant to the settlement agreement. In addition, while the order acknowledged Husband's retirement would be a sufficient change of circumstances to warrant review of his alimony obligation, no review had occurred, nor had Husband filed an action for review by any court concerning the amount of alimony he should be paying. On November 20, 2001, Wife filed an order and rule to show cause seeking to hold Husband in contempt for failing to pay alimony since August 1999. The trial judge found that because the language in the order requires the court's review of the financial condition of the parties upon Husband's retirement and does not specify which party should seek review, Husband was not in contempt. At the hearing, the judge stated:

I find that because the language within the Order is mandatory, that there is sufficient information or sufficient doubt as to whether or not there was responsibility on either party, other than what they both acknowledge was, in fact, the change of circumstances as anticipated in the Order.
The Order says the Court "shall" review the financial condition of the parties. What we have is a delay in that review, obviously, but the language is mandatory that the review should take place upon the retirement from his then place of employment that was anticipatory.

Based on his findings, the judge declined to hold Husband in contempt and gave him ten days in which to file an appropriate motion to seek modification of the alimony award. The trial judge declined to award attorney's fees, but ruled the issue could be raised at the merits hearing. Wife appeals.

STANDARD OF REVIEW

A determination of contempt lies within the sound discretion of the trial judge. Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 607, 567 S.E.2d 514, 519 (Ct.App.2002). "A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support." Haselwood v. Sullivan, 283 S.C. 29, 32-33, 320 S.E.2d 499, 501 (Ct.App.1984) (citation omitted).

LAW/ANALYSIS
I. Contempt

Wife argues the trial court erred in failing to find Husband in contempt of the order requiring him to pay $3,000 per month in alimony. We disagree.

"It is well settled that contempt results from willful disobedience of a court order; and before a person may be held in contempt, the record must be clear and specific as to acts or conduct upon which the contempt is based." Cheap-O's Truck Stop, Inc.,350 S.C. at 612,567 S.E.2d at 522 (quoting State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct.App. 1994)). A willful act is "one done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say with bad purpose either to disobey or disregard the law." Id. (citations omitted).

Therefore, our focus is on whether the trial judge abused his discretion in finding that Husband did not willfully disobey the order requiring him to pay alimony. We agree with the trial judge that the mandatory language in the order stating, "In the event the Husband so retires, the parties acknowledge that this shall constitute a change in circumstances and the Court shall review the financial condition of the parties ..." was ambiguous as to who was to initiate review of the financial...

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28 cases
  • Davis v. Davis
    • United States
    • South Carolina Court of Appeals
    • December 21, 2006
    ...disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful violation of a lawf......
  • Miller v. Miller
    • United States
    • South Carolina Court of Appeals
    • October 5, 2007
    ...disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful violation of a lawf......
  • State v. Isaac
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    • South Carolina Supreme Court
    • August 21, 2013
    ...cases, to equity matters arising from the family courts. E.g. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012); Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004). It is the legislature's prerogative to dictate appealability, and the intent that a person within the Act's terms be......
  • Stoney v. Stoney, Appellate Case No. 2011-203410
    • United States
    • South Carolina Court of Appeals
    • August 29, 2018
    ...disobedience of an order of the court." Bigham v. Bigham , 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975) ; Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct. App. 2004) ; S.C. Code Ann. § 63-3-620 (Supp. 2015) ("An adult who wilfully violates, neglects, or refuses to obey or perfor......
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