Calhoun v. Calhoun

• Decision Date: 06 March 2000
• Docket Number: No. 25079.,25079.
• Citation: 339 S.C. 96,529 S.E.2d 14
• Court: South Carolina Supreme Court
• Parties: Orville G. CALHOUN, Respondent, v. Sally G. CALHOUN, Petitioner.

339 S.C. 96

529 S.E.2d 14

Orville G. CALHOUN, Respondent, v. Sally G. CALHOUN, Petitioner.

No. 25079.

Supreme Court of South Carolina.

Heard February 2, 2000.

Decided March 6, 2000.

Sally G. Calhoun, of Beaufort, pro se.

Stuart G. Anderson, Jr., of Anderson, Fayssoux and Chasteen, of Greenville, for respondent.

TOAL, Acting Chief Justice:

This Court granted certiorari to review the Court of Appeals' opinion in Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct.App.1998). We affirm in part and reverse in part.

FACTS

In this domestic action, the family court (1) granted respondent a divorce on the ground of one year's continuous separation; (2) denied petitioner's plea for alimony; (3) divided the parties' personal property by ordering respondent to pay petitioner $11,586, in addition to an in-kind distribution of the property; (4) awarded each party 60% of the marital portion of their own retirement plan and 40% of the other's retirement plan resulting in an order that respondent roll over $28,152.20 to petitioner's retirement account; and (5) awarded petitioner $10,000 in attorney fees for retained counsel, but denied her request for attorney fees for the time she represented herself. Both parties appealed.

The Court of Appeals affirmed, as modified, finding: (1) respondent was entitled to a credit of $4,976.80 on the amount owed petitioner for personal property; (2) the appreciated value of the marital home was $46,687 more than stated in the family court order and petitioner was entitled to a 50% special equity in that amount; (3) petitioner was entitled to 50% of the $6,416 appreciation on the vacation home resulting from the reduction in the mortgage on the home; and (4) petitioner was entitled to recover expert fees and costs in the amount of $5,763. The Court of Appeals affirmed the remaining provisions of the family court order pertaining to the equitable distribution award and, pursuant to Rule 220(b)(2), SCACR, found the remaining issues argued by the parties to be without merit. Id.

Petitioner sought a writ of certiorari following the denial of her petition for rehearing. We granted certiorari to review the following issues: (1) whether petitioner, an attorney, is entitled to attorney fees for the time she represented herself; (2) whether she is entitled to post-judgment interest on the equitable distribution award; and (3) whether the Court of Appeals erred in refusing to consider her transmutation argument with regard to respondent's vacation home.

DISCUSSION

1.

South Carolina Code Ann. § 20-3-130(H) (Supp.1999) states that in divorce proceedings, the court, after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees incurred, including sums for services rendered and costs incurred before the commencement of the proceedings and after entry of judgment, pendente lite and permanently. At trial, petitioner, an attorney, sought attorney fees for the time she represented herself.¹ She submitted an affidavit which indicated she spent 120.4 hours defending this action. The family court denied petitioner's request for attorney fees without comment.

On appeal, the Court of Appeals acknowledged that whether a pro se litigant who is an attorney should be allowed to recover attorney fees is a novel issue in this state and that there is a split of authority on the issue in jurisdictions where it has been addressed. A majority of those states have allowed pro se attorney litigants to recover attorney fees,² while the minority rule denies such relief.³ The Court of Appeals aligned itself with those states which deny attorney fees to pro se attorney litigants. In doing so, the Court of Appeals held that the cardinal criterion for an award of attorney fees under § 20-3-130(H) is that the party claiming a right to a fee has paid or owes another person money for legal services rendered and that an attorney who appears on his or her behalf does not incur such an obligation. Petitioner maintains this holding is erroneous.

We agree with the Court of Appeals' adoption of the minority rule. The term "incur" is commonly defined as "to become liable or subject to." THE AMERICAN HERITAGE DICTIONARY 653 (2d Ed.1982); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1146 (1976). A pro se litigant, whether an attorney or layperson, does not become liable for or subject to fees charged by an attorney. Accordingly, we hold that pro se litigants are not entitled to attorney fees under § 20-3-130(H).

2.

The family court's September 21, 1995, order of divorce gave respondent ninety days to pay petitioner $19,744 for her interest in the marital home and to roll over $13,505.20 from his retirement account into petitioner's retirement fund. Both parties filed motions for reconsideration pursuant to Rule 59(e), SCRCP.

By order dated January 4, 1996, the family court reduced the amount it had ordered respondent to pay petitioner to $11,586, representing a miscalculation in the previous equitable distribution of marital property, and increased the amount respondent was to roll over into petitioner's retirement fund to $28,152.20. The family court granted respondent ninety days to pay petitioner. Both parties again filed Rule 59(e) motions. The motions were denied.

Petitioner did not seek post-judgment interest in her answer and counterclaim or in her first Rule 59(e) motion. Instead, the first time she requested post-judgment interest was in her second Rule 59(e) motion filed on January 31, 1996. Therein, petitioner requested post-judgment interest on "all money awards except [petitioner's] award of her share of [respondent's] 401-k...."⁴

On appeal, petitioner asked the Court of Appeals to award her post-judgment interest. The Court of Appeals found that petitioner's January 31, 1996, motion for reconsideration was untimely because it was not served within ten days of either the September 21, 1995, order or the January 4, 1996, order; therefore, she could not complain about the failure of the family court to award post-judgment interest.

Petitioner maintains she is automatically entitled to interest on the money judgment without regard to whether the Rule 59(e) motion in which she first requested post-judgment interest was timely. We agree.

South Carolina Code Ann. § 34-31-20(B) (1987) states that money decrees and judgments of courts enrolled or entered shall draw interest at a rate of 14% per annum. This Court has held that an equitable distribution award is a money decree or judgment, pursuant to § 34-31-20, so that it accrues interest at the statutorily prescribed interest rate from the date of the judgment. Casey v. Casey, 311 S.C. 243, 428 S.E.2d 714 (1993).

Where the law allows interest as a matter of course, it is unnecessary to make demand for it in the pleadings. Anderson v. Citizens Bank, 294 S.C. 387, 365 S.E.2d 26 (Ct.App.1987); see also 47 C.J.S. Interest & Usury § 81 (1982) ("[W]here interest is payable by virtue of statute or rule of court and not by virtue of contract, it is not necessary to make a specific claim for interest in the declaration or complaint."). While pre-judgment interest must be pled in order to be recovered, except in cases involving an agreement to pay a sum certain, this Court has recognized that a claimant is entitled to interest from the date of the rendition of the verdict, or post-judgment interest, as a matter of course. See Van Dolson v. Earles, 234 S.C. 593, 109 S.E.2d 456 (1959)

; see also Town of Bennettsville v. Bledsoe, 226 S.C. 214, 84 S.E.2d 554 (1954); Rawls v. American Central Ins. Co., 97 S.C. 189, 81 S.E. 505 (1914); Sims v. Goudelock, 41 S.C.L. (7 Rich. 23) 9 (1853); Anderson v. Citizens Bank, supra.

Indeed, § 34-31-20(B) states that money decrees and judgments of courts enrolled or entered shall draw interest at a rate of 14% per annum. Use of the word "shall" in a statutory provision indicates the provision is mandatory. Seckinger v. The Vessel Excalibur, 326 S.C. 382, 483 S.E.2d 775 (Ct.App.1997) (certiorari denied April 24, 1998). As petitioner was entitled to post-judgment interest as a matter of law, the fact that her motion for reconsideration seeking such interest was untimely or that she failed to seek it in her previous pleadings is irrelevant.

A question then arises as to when the interest began to accrue and if it has continued to accrue during the pendency of the appeals. Fixed awards of money for equitable distribution shall accrue interest at the post-judgment rate from the date of the judgment. Casey v. Casey, supra.

Rule 58(a), SCRCP, states that upon a decision by the lower court, the clerk shall prepare, sign, and enter the judgment without awaiting any direction by the court. It states further that a judgment is effective only when so set forth and entered in the record. Rule 59(e), SCRCP, states that a motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the judgment. Accordingly, the date of judgment is not effected by the filing of a Rule 59(e) motion.

The problem in the case at hand, however, is that there were two judgments. The first judgment was rendered on September 21, 1995, and the second on January 4, 1996. We must determine from which judgment the interest runs and whether it has continued to run during the pendency of the appeals.

This Court has held that interest does not accrue during the pendency of an appeal when the appeal is made by the judgment creditor on the basis of a claim of inadequacy and the appeal is unsuccessful. Barth v. Barth, 293 S.C. 305, 360 S.E.2d 309 (1987)

; Sears v. Fowler, 293 S.C. 43, 358 S.E.2d 574 (1987). The Court has never ruled on whether interest accrues during the pendency of an appeal when the appeal is made by the judgment creditor on the basis of a claim of inadequacy and the appeal is successful.

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