Burdeshaw v. Burdeshaw, 2020-UP-105

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Decision Date08 April 2020
PartiesGalen E. Burdeshaw, Appellant, v. Jennifer Marie Burdeshaw, Respondent. Appellate Case No. 2017-001337
Docket Number2020-UP-105

Galen E. Burdeshaw, Appellant,
v.

Jennifer Marie Burdeshaw, Respondent.

Appellate Case No. 2017-001337

No. 2020-UP-105

Court of Appeals of South Carolina

April 8, 2020


THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard October 9, 2019

Appeal From Greenville County Rochelle Y. Conits, Family Court Judge, Harry LaDon Phillips, Jr., Family Court Judge, and Katherine H. Tiffany, Family Court Judge

Melissa D. Spivey, of The Spivey Law Group, LLC, of Mauldin, for Appellant.

Gwendolynn Wamble Barrett, of Barrett Mackenzie, LLC, of Greenville, for Respondent.

Robert A. Clark, of Greenville, for the Guardian ad Litem.

PER CURIAM

In this appeal from orders of the family court, Galen Burdeshaw (Husband) argues the family court erred in (1) issuing a decree of divorce and final order (the Final Order) before hearing his contempt action against Jennifer Burdeshaw (Wife) and denying his motion for a new trial; (2) declining to hear his amended contempt complaint against Wife; (3) considering Wife's memorandum of law in making its determination on Husband's contempt action; (4) granting Wife's motion to reconsider the Final Order and awarding her the dependent tax exemption; (5) awarding Wife primary custody of the parties' child (Daughter); (6) failing to find Wife in contempt; (7) apportioning the marital estate; and (8) awarding Wife attorney's fees. We affirm in part and reverse in part.[1]

1. We find Husband waived any challenge to the family court's issuance of the Final Order prior to hearing his contempt action against Wife. At the close of trial, the family court stated its intention on the record to take the divorce action under advisement and begin preparing the Final Order. Husband neither objected to this statement nor made a request that the court hear the contempt action before issuing the Final Order. Although Husband alleged the family court erred by issuing the Final Order before hearing the contempt action in his motion to reconsider the Final Order, we find Husband failed to timely raise this issue to the family court when the issue first presented itself. See Susan R. v. Donald R., 389 S.C. 107, 118, 697 S.E.2d 634, 640 (Ct. App. 2010) (providing that a party cannot use a Rule 59(e), SCRCP, motion to present to the family court an issue the party could have raised prior to judgment but failed to do so); Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.").

We further find the family court did not err in denying Husband's motion for a new trial. Husband contends the family court erred in denying his motion for a new trial because his contempt action was not heard until three years after it was filed and his motion to reconsider the Final Order was not heard until two years after it was filed. Husband therefore contends the record was stale. We disagree. Although we acknowledge the span of time between the filing of Husband's motions and their ultimate resolution, we find the family court did not err in denying Husband's motion for a new trial. First, regarding Husband's contempt action, we find the passage of time is irrelevant as Husband was bound by the violations alleged in his complaint and the subsequently issued rule to show cause. Similarly, as to Husband's motion to reconsider, we find the passage of time had no impact on the outcome as all of the evidence had already been presented to the family court, and Husband was bound by this evidence. We note the proper avenue for Husband to present new evidence regarding custody would have been through a motion seeking a custody modification. See Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004) ("In order for a court to grant a change in custody, there must be a showing of changed circumstances occurring subsequent to the entry of the divorce decree." (emphasis added)); Cook v. Cobb, 271 S.C. 136, 143, 245 S.E.2d 612, 616 (1978) ("Generally, the change of conditions which justifies a change of custody must occur after the date of a decree establishing custody, and before the action seeking to upset custody is filed."). Further, we note Husband's numerous requests for a continuance of the contempt hearing consequently delayed the resolution of his motion to reconsider as the family court held the remaining issues of the motion to reconsider in abeyance until the hearing of the contempt action.

2.We find the family court did not err in declining to hear Husband's amended contempt complaint. A motion to amend the pleadings is left to the sound discretion of the family court. Griffith v. Griffith, 332 S.C. 630, 636, 506 S.E.2d 526, 529 (Ct. App. 1998); see also Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (per curiam) (providing that on appeal from the family court, this court reviews evidentiary and procedural rulings for an abuse of discretion). "The rule to show cause, and the supporting affidavit or verified petition, shall be served, . . ., not later than ten days before the date specified for the hearing, unless a different notice period is fixed by the issuing judge within the rule to show cause." Rule 14(d), SCRFC (emphasis added). In the instant case, Husband moved to amend the contempt complaint, and the family court issued an amended rule to show cause less than ten days before the scheduled hearing. However, the family court failed to specify a different notice period within the amended rule to show cause. Accordingly, Wife did not receive proper notice of Husband's additional allegations of contempt. Thus, we find the family court properly denied Husband's motion to amend the contempt complaint. Further, we agree with the family court that the proper avenue for Husband to pursue new evidence of contempt is through a separate contempt action.

3.We find the family court did not err in considering Wife's supplemental memorandum in making its determination on Husband's contempt action. During the contempt hearing, the family court notified the parties of its intention to take the matter under advisement to fully review all relevant portions of the record. The court further requested the parties submit a memorandum noting the specific exhibits and portions of the trial transcript that "tend to prove [their] position." Neither party objected to this request. Following the hearing, Wife submitted a memorandum complying with the court's request, which noted the relevant exhibits and portions of the trial transcript tending to show her compliance with the temporary orders. Husband also submitted a memorandum. We find Wife acted in compliance with the family court's request, and therefore, the family court did not err in considering her memorandum when making its determination. See also Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2 (providing that on appeal from the family court, this court reviews evidentiary and procedural rulings for an abuse of discretion). Further, Wife's memorandum did not present any new evidence or arguments but, rather, responded to the allegations set forth by Husband during the hearing.

4. We find the family court erred in awarding Wife the dependent tax exemption. Husband argues the family court erred in considering child support and the tax exemption together and in finding Wife could benefit from claiming Daughter as a dependent based on Wife's income. We agree. Subsection 20-3-130(F) of the South Carolina Code (2014) provides, "The Family Court may allocate the right to claim dependency exemptions pursuant to the Internal Revenue Code and under corresponding state tax provisions . . . ." The South Carolina Child Support Guidelines (the Guidelines) stipulate that they are based on the assumption that the parent who is required to pay child support will only have one federal exemption and higher taxes than the parent who is owed child support, but it notes that the Schedule of Basic Child Support Obligations adjusts for that with lower child support payments.[2] Despite the assumption in the Guidelines, this court has held the family court may allocate a dependent tax exemption to a noncustodial parent. See Hudson v. Hudson, 340 S.C. 198,...

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