Buist v. Buist, 27468.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtChief Justice TOAL.
Citation766 S.E.2d 381,410 S.C. 569
PartiesKatie Green BUIST, Respondent, v. Michael Scott BUIST, Petitioner. Appellate Case No. 2012–213002.
Docket NumberNo. 27468.,27468.
Decision Date03 December 2014

410 S.C. 569
766 S.E.2d 381

Katie Green BUIST, Respondent
Michael Scott BUIST, Petitioner.

Appellate Case No. 2012–213002.

No. 27468.

Supreme Court of South Carolina.

Heard June 12, 2014.
Decided Dec. 3, 2014.

766 S.E.2d 382

Scarlet Bell Moore, of Greenville, for Petitioner.

C. Rauch Wise, of Greenwood, for Respondent.


Chief Justice TOAL.

410 S.C. 572

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.

Facts/Procedural Background

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,

410 S.C. 573

and child support.1 At the hearing, Wife's attorney submitted

766 S.E.2d 383

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'

410 S.C. 574

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?

Standard of 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,”

410 S.C. 575

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

766 S.E.2d 384

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:

(1) During the trial, a party may introduce an attorneys' fee affidavit in support of the party's request for an award of attorneys' fees. To object to the propriety of a fee award, the opposing party may either contemporaneously object to the affidavit or, at some point prior to the close of the final hearing, request a hearing—then or later—on the sole issue of attorneys' fees.4
(2) If the opposing party either objects or is granted a later hearing, the family court may receive additional testimony and evidence or evaluate the record as it then exists, applying the Glasscock or E.D.M. factors, to decide the propriety of awarding attorneys' fees.

(3) If the opposing party fails to object or request a later hearing, the family court may exercise its discretion to determine whether the amount of the award stated in the fee affidavit (i.e., the hourly rate and number of hours billed) is reasonable absent additional testimony. However, even if the family court finds the affidavit reasonable, it must

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