Bowman v. Bowman, No. 3726.

CourtCourt of Appeals of South Carolina
Writing for the CourtKITTREDGE, J.
Citation357 S.C. 146,591 S.E.2d 654
PartiesCarl W. BOWMAN, Appellant, v. Norma M. BOWMAN, Respondent.
Decision Date20 January 2004
Docket NumberNo. 3726.

357 S.C. 146
591 S.E.2d 654

Carl W. BOWMAN, Appellant,
v.
Norma M. BOWMAN, Respondent

No. 3726.

Court of Appeals of South Carolina.

Heard November 4, 2003.

Decided January 20, 2004.


357 S.C. 150
Cynthia Barrier Castengera, of Newland, North Carolina; J. Mark Taylor and C. Vance Stricklin, both of West Columbia, for appellant

F. Glenn Smith, of Columbia, for respondent.

KITTREDGE, J.:

The family court granted Carl W. Bowman (Husband) a divorce from Norma M. Bowman (Wife), equitably divided the marital estate, and awarded Husband attorney fees and suit monies. Following the denial of the parties' Rule 59(e), SCRCP, motions, Husband filed a Rule 60(b)(2) and (3) motion to set aside the judgment. The family court denied the motion. On appeal Husband challenges the adequacy of the attorney fee and suit money award and the denial of his Rule 60(b)(2) and (3) motion. We affirm.

FACTS

In July 1997, after thirty-five years of marriage, Husband filed an action for divorce seeking equitable division of the marital estate, attorney fees, and suit monies. Wife admitted to adultery in her pleadings, and the paramount issue remaining was the equitable division of the marital estate. Each party challenged the inclusion in the marital estate of his and her respective retirement plans,1 and Wife contested Husband's claim for attorney fees and suit monies.

The family court issued an order granting Husband a divorce, excluding Wife's defined benefit plan from the marital estate, including Husband's retirement plan in the marital estate, and awarding Husband $7,048 in attorney fees and suit monies. The court further requested that the parties attempt to reach an agreement concerning the division of marital property to accomplish the equitable division of 60% to Husband and 40% to Wife. The parties were unable to resolve all

357 S.C. 151
issues, necessitating the family court's involvement in concluding the matter

Both parties filed Rule 59(e) motions, which were denied. Thereafter, upon receipt of information through post-judgment discovery concerning the funding source of Wife's defined benefit plan, Husband sought relief from the judgment pursuant to Rule 60(b)(2) and (3). The family court denied the motion, primarily finding Husband could have discovered the information prior to trial.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). This broad scope of review does not, however, require this court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). The decision to grant or deny a motion under Rule 60(b) is within the sound discretion of the trial court. Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992). On review, we are limited to determining whether the trial court abused its discretion in granting or denying such a motion. Saro Invs. v. Ocean Holiday P'ship, 314 S.C. 116, 124, 441 S.E.2d 835, 840 (Ct.App.1994).

LAW/ANALYSIS

I. Exclusion of Wife's Defined Benefit Plan from the Marital Estate and the Denial of Husband's Rule 60(b)(2) and (3) Motion

Husband argues the family court erred in not granting a new trial as he sought a second opportunity to persuade the court to include Wife's defined benefit plan in the marital estate. Specifically, Husband asserts the family court erred in denying his Rule 60(b)(2) and (3) motion after Husband provided evidence that Wife's defined benefit plan was funded, at least in part, from life insurance policies purchased by Wife's employer during the marriage. As noted, marital litigation commenced in July 1997. Wife's defined benefit plan was created on July 1, 1998 and was funded in June 1999. It is

357 S.C. 152
stipulated that Wife's defined plan "was substantially funded at its inception." The family court reasoned that since Wife did not own the defined benefit plan until after marital litigation was filed, the retirement plan should be excluded from the marital estate. Husband appeals from the denial of his Rule 60(b)(2) and (3) motion.2

The new evidence submitted post-judgment in support of Husband's Rule 60(b)(2) and (3) motion consists of a statement from Wife's employer, the South Carolina Student Loan Corporation, showing that the assets of the defined benefit plan include the cash surrender values of eight life insurance policies with New York Life Insurance Company. Additional evidence reveals that one of the policies was purchased in 1988, and Wife was listed as the named insured. While we agree with Husband that this information establishes a nexus between Wife's defined benefit plan and the cash surrender values of the life insurance policies as a funding source for the plan,3 we find Husband's Rule 60(b)(2) and (3) motion was nevertheless properly denied. We consider it unnecessary to explore the differing standards between Rule 60(b)(2) and (3) as advanced by Husband, for we conclude that South Carolina's strong policy towards finality of judgments trumps a party's ability to set aside a judgment where, as here, the party could have discovered the evidence prior to trial. See Bryan v. Bryan, 220 S.C. 164, 168, 66 S.E.2d 609, 610 (1951) (finding that equitable relief from a judgment is not available for intrinsic fraud "on the theory that an issue which has been tried and passed upon in the original action should not be retried in an action of equitable relief, and that otherwise litigation would be interminable"); Chewning v. Ford Motor Co., 354 S.C. 72, 86, 579 S.E.2d 605, 613 (2003) (finding that while post-judgment relief was granted as a result of "unique

357 S.C. 153
facts," the court reaffirmed South Carolina's "longstanding policy towards final judgments")

Husband invites this court to apply the "misconduct" standard in Rule 60(b)(3). Were we to do so, we would still be constrained to affirm the family court. The cases cited by Husband permit Rule 60(b)(3) relief only where "the misconduct prevented the moving party from fully presenting its case." Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir.1994) citing Square Constr. Co. v. Washington Metro. Area Transit Auth., 657 Fed.2d 68, 71 (4th Cir.1981); Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1st Cir.1988) (stating "the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial") (emphasis in original); see also Rycroft v. Tanguay, 279 S.C. 76, 79, 302 S.E.2d 327, 329 (1983) (stating "equity will not grant relief to one against whom an unfavorable judgment has been rendered, even in consequence of fraud, where the aggrieved party has not acted with diligence"); Dunn v. Consolidated Rail Corp., 890 F.Supp. 1262, 1269 (M.D.La.1995) (stating "[a] Rule 60(b)(3) assertion ... must be such as to prevent the losing party from fully and fairly presenting its case or defense").

Here, Husband was aware of Wife's defined benefit plan, as well as her management position with the South Carolina Student Loan Corporation. Wife acknowledged this post-filing retirement account at her May 11, 2000 deposition, approximately seven months prior to trial. Also prior to trial, Husband noticed the deposition of James Kenneth Player, the executive vice president of Wife's employer, for the purpose of gaining additional evidence and information concerning the defined benefit plan. However, Husband elected not to take Player's deposition, opting instead to enter into the following stipulation with Wife:

As to [Wife's] plan, we will stipulate that the defined benefits were not created until after the date of filing. The plan was funded by the South Carolina Student Loan Corporation. The plan was substantially funded at its inception. The plan utilized past "time of service" to calculate the initial contribution to the plan. We stipulate that this is what [Wife's employer] and/or [Wife] would otherwise testify to if called as a witness.

357 S.C. 154
Husband was thus aware prior to trial of this asset and Wife's reluctance to disclose it. Significantly, Husband faced no legal impediment prior to trial precluding his access to information concerning any aspect of Wife's defined benefit plan, including the plan's funding source. Against this procedural history, Husband elected not to pursue further discovery, and he entered into the above stipulation. Absent valid grounds for Rule 60(b) relief, an unfavorable ruling at trial does not provide an unsuccessful litigant another opportunity to litigate an issue. We find no abuse of discretion and...

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32 practice notes
  • Lanier v. Lanier, No. 3966.
    • United States
    • United States State Supreme Court of South Carolina
    • March 21, 2005
    ..."The decision to grant or deny a motion under Rule 60(b) is within the sound discretion of the trial court." Bowman v. Bowman, 357 S.C. 146, 151, 591 S.E.2d 654, 656 (Ct.App.2004) (citing Coleman v. Dunlap, 306 S.C. 491, 413 S.E.2d 15 (1992)); see also Saro Invs. v. Ocean Holiday Pship., 31......
  • Hunnicutt v. Hunnicutt, 2006-UP-024
    • United States
    • Court of Appeals of South Carolina
    • January 12, 2006
    ...of how legal title is held.” S.C. Code Ann. § 20-7-473 (Supp. 2004). This court recently addressed severance pay in Bowman v. Bowman, 357 S.C. 146, 158, 591 S.E.2d 654, 660 (Ct. App. 2004): [W]e adhere to South Carolina's sound and approach of scrutinizing the true nature and purpose of the......
  • Dickson v. Fletcher, No. 04-741.
    • United States
    • Supreme Court of Arkansas
    • March 31, 2005
    ...105 N.M. 571, 734 P.2d 811 (Ct.App. 1987); Pearn v. DaimlerChrysler Corp., 148 Ohio App.3d 228, 772 N.E.2d 712 (2002); Bowman v. Bowman, 357 S.C. 146, 591 S.E.2d 654 (Ct.App.2004); Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). Arkansas, of course, is no exception and is in complete agreeme......
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • September 19, 2018
    ...otherwise would "promote fraud, reward misconduct, and contravene legislative intent." Id. (quoting 819 S.E.2d 806 Bowman v. Bowman , 357 S.C. 146, 155, 591 S.E.2d 654, 659 (Ct. App. 2004) ). However, such property will be included in the marital estate only if the party seeking to classify......
  • Request a trial to view additional results
32 cases
  • Lanier v. Lanier, No. 3966.
    • United States
    • United States State Supreme Court of South Carolina
    • March 21, 2005
    ..."The decision to grant or deny a motion under Rule 60(b) is within the sound discretion of the trial court." Bowman v. Bowman, 357 S.C. 146, 151, 591 S.E.2d 654, 656 (Ct.App.2004) (citing Coleman v. Dunlap, 306 S.C. 491, 413 S.E.2d 15 (1992)); see also Saro Invs. v. Ocean Holiday Pship., 31......
  • Hunnicutt v. Hunnicutt, 2006-UP-024
    • United States
    • Court of Appeals of South Carolina
    • January 12, 2006
    ...of how legal title is held.” S.C. Code Ann. § 20-7-473 (Supp. 2004). This court recently addressed severance pay in Bowman v. Bowman, 357 S.C. 146, 158, 591 S.E.2d 654, 660 (Ct. App. 2004): [W]e adhere to South Carolina's sound and approach of scrutinizing the true nature and purpose of the......
  • Dickson v. Fletcher, No. 04-741.
    • United States
    • Supreme Court of Arkansas
    • March 31, 2005
    ...105 N.M. 571, 734 P.2d 811 (Ct.App. 1987); Pearn v. DaimlerChrysler Corp., 148 Ohio App.3d 228, 772 N.E.2d 712 (2002); Bowman v. Bowman, 357 S.C. 146, 591 S.E.2d 654 (Ct.App.2004); Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). Arkansas, of course, is no exception and is in complete agreeme......
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • September 19, 2018
    ...otherwise would "promote fraud, reward misconduct, and contravene legislative intent." Id. (quoting 819 S.E.2d 806 Bowman v. Bowman , 357 S.C. 146, 155, 591 S.E.2d 654, 659 (Ct. App. 2004) ). However, such property will be included in the marital estate only if the party seeking to classify......
  • Request a trial to view additional results

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