Buist v. Buist
| Decision Date | 03 December 2014 |
| Docket Number | No. 27468.,27468. |
| Court | South Carolina Supreme Court |
| Parties | Katie Green BUIST, Respondent, v. Michael Scott BUIST, Petitioner. Appellate Case No. 2012–213002. |
Scarlet Bell Moore, of Greenville, for Petitioner.
C. Rauch Wise, of Greenwood, for Respondent.
We granted Scott Buist's (Husband) petition to review the court of appeals' decision affirming the family court's award of $8,000 in attorneys' fees to Katie Buist (Wife). See Buist v. Buist, 399 S.C. 110, 124–25, 730 S.E.2d 879, 886 (Ct.App.2012). While we agree with the court of appeals that Husband failed to preserve his specific objection to the award of attorneys' fees, the court of appeals erred in declaring a bright-line rule that an objection to an award of attorneys' fees is always untimely when made as part of a motion pursuant to Rule 59(e), SCRCP. Accordingly, we affirm as modified.
Husband and Wife married in 1999 and had one child. In 2007, Wife filed for divorce, seeking, inter alia, attorneys' fees and costs. In 2009, the family court granted the couple a divorce on the grounds that they had lived separate and apart for one year.
On November 5, 2009, the family court conducted a final hearing, receiving testimony from Husband, Wife, their witnesses, and a guardian ad litem (GAL) regarding contested issues of division of marital assets, child custody and visitation, and child support.1 At the hearing, Wife's attorney submitted a fee affidavit requesting approximately $15,000 in attorneys' fees. Husband's attorney did not object to the affidavit, but submitted his own fee affidavit regarding his earlier motion for a rule to show cause.
In the final divorce decree, dated December 16, 2009, the family court ordered Husband to pay $8,000 towards Wife's attorneys' fees and costs within 180 days. The court also ordered Husband and Wife to each pay half of the $2,768.90 owed to the GAL within 180 days. Finally, the family court ordered Wife to pay Husband's attorney $3,050 in regards to Husband's motion for a rule to show cause.
Husband filed a timely motion to reconsider pursuant to Rule 59(e), SCRCP, arguing, inter alia:
The [c]ourt required [Husband] to pay large sums of money to [Wife], her attorney, and the [GAL] within 180 days when the record clearly establishes ... that [Husband] does not have the ability to borrow any money or to pay those sums within that time frame.
The family court denied Husband's motion.
Husband appealed, arguing, inter alia, that the family court erred in failing to apply the factors set forth in Glasscock v. Glasscock2 or E.D.M. v. T.A.M.3 prior to awarding attorneys' fees to Wife. However, the court of appeals found Husband's argument unpreserved. Buist, 399 S.C. at 124, 730 S.E.2d at 886. The court of appeals explained that “Husband did not challenge Wife's fee affidavit at the hearing and, therefore, failed to procure a ruling from the family court on this issue.” Id. As such, the court of appeals viewed the award of attorneys' fees as an unappealed ruling and, thus, the law of the case. Id. The court of appeals also found that Husband's motion to reconsider did not aid him in preserving the attorneys' fees issue for review, stating that “any request at the 59(e) stage of the proceedings was untimely because Husband could have raised this issue at trial.” Id. at 125, 730 S.E.2d at 886.
We granted Husband's petition for a writ of certiorari to review the decision of the court of appeals.
Whether the court of appeals erred in determining that the attorneys' fees issue was not preserved for appellate review?
Appellate courts review appeals from the family court de novo. Simmons v. Simmons, 392 S.C. 412, 414–15, 709 S.E.2d 666, 667 (2011). Thus, an appellate court may find facts in accordance with its own view of the preponderance of the evidence. Dickert v. Dickert, 387 S.C. 1, 5–6, 691 S.E.2d 448, 450 (2010). The appellant retains the burden to demonstrate the error in the family court's findings of fact. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 652 (2011).
“It is well settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved.” Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006). While “a party is not required to use the exact name of a legal doctrine in order to preserve the issue,” Herron v. Century BMW, 395 S.C. 461, 466, 719 S.E.2d 640, 642 (2011), the party nonetheless must be sufficiently clear in framing his objection so as to draw the court's attention to the precise nature of the alleged error, Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). If the party is not reasonably clear in his objection to the perceived error, he waives his right to challenge the erroneous ruling on appeal. S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007).
While Husband did not object to Wife's fee affidavit during the final hearing, his failure to object during the hearing was not fatal to his efforts to preserve the attorneys' fees issue for appeal. For the benefit of the Bench and the Bar, we briefly address the appropriate procedure to object to an award of attorneys' fees in family court:
Therefore, we find that Husband's motion to reconsider constituted a timely challenge to the family court's award of attorneys' fees. The court of appeals' conclusion that “any request [to reconsider an award of attorneys' fees] at the 59(e) stage of the proceedings was untimely because Husband could have raised this issue at trial” is clearly erroneous. See Buist, 399 S.C. at 125, 730 S.E.2d at 886 (emphasis added). This statement wrongly conflates the timing of Husband's objection with his failure to object with specificity, prior to his appeal to the court of appeals, to the propriety of awarding attorneys' fees.
We likewise reject the court of appeals' finding that the parties must contemporaneously object to fee affidavits to preserve objections to an award of attorneys' fees for appellate review. A failure to object to the affidavit only indicates the party's acceptance of the affidavit as a reasonable representation of the amount of fees the opposing party owes his or her attorney, thus obviating any need for the opposing party to produce additional evidence or testimony on the matter. The family court must still apply the Glasscock or E.D.M. factors to determine whether to award a fee, as well as the amount of the fee to award. Cf. Glasscock, 304 S.C. at 161 & n. 1, 403 S.E.2d at 315 & n. 1 ().
However, despite the timeliness of Husband's objection to the family court's award of attorneys' fees to Wife, Husband's sole assignment of error in his motion to reconsider was that the family court “required [Husband] to pay large sums of money to [Wife], her attorney, and the [GAL] within 180 days when ... [Husband] does not have the ability to borrow any money or to pay those sums within that time frame. ” (Emphasis added). Thus, Husband objected only to the amount of time that the family court gave him to pay both the attorneys' fees and his portion of the GAL fees, not to the imposition of the fees themselves. The family court surely needed to “grope in the dark” to ascertain that Husband took issue with the court's alleged misapplication of the Glasscock and E.D.M. factors. See Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010).
Accordingly, as Husband was not sufficiently specific in his objection to the family court's final divorce decree, Husband waived any objection that the family court did not adequately apply the Glasscock or E.D.M. factors. We therefore affirm the court of appeals' decision to the extent it affirmed the family court's award of attorneys' fees to Wife on issue preservation grounds.
For the foregoing reasons, we affirm the judgment of the court of appeals as modified. As set forth in the family court's final...
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