Bowman v. Bowman

• Decision Date: 20 January 2004
• Docket Number: No. 3726.,3726.
• Court: South Carolina Court of Appeals
• Parties: Carl W. BOWMAN, Appellant, v. Norma M. BOWMAN, Respondent.

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.

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 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 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 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.

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 therefore affirm the family court's denial of Husband's Rule 60(b)(2) and (3) motion.

We in no manner condone Wife's noncompliance with the rules regarding discovery supplementation, and we are not unsympathetic with litigants, like Husband, who encounter adversaries who display a deliberate indifference to the discovery rules.⁴ We further recognize the myriad difficulties and vagaries inherent in the family court arena for judges and practitioners alike.

In this case, Husband is ultimately not prejudiced by the denial of Rule 60(b) relief, for we are persuaded that the family court correctly excluded Wife's defined benefit plan from the marital estate. The post-judgment discovery does little to advance Husband's argument, as it simply bolsters the prior stipulation that the "plan was substantially funded at its inception." The life insurance policies at issue are best described as corporate assets, which Wife neither controlled nor had the right to control based on the record before us.

We believe it useful to the family court bench and bar to provide a general framework within which to address and properly classify employment related benefits, such as a retirement plan, purportedly created after the date of filing of marital litigation but prior to dissolution of the marriage. We do so in...