Calvert v. Calvert
Decision Date | 23 October 1985 |
Docket Number | No. 0578,0578 |
Citation | 336 S.E.2d 884,287 S.C. 130 |
Court | South Carolina Court of Appeals |
Parties | Guy A. CALVERT, Jr., Respondent, v. Patricia B. CALVERT, Appellant, and Patricia B. CALVERT, Appellant, v. PATHOLOGY ASSOCIATES OF LEXINGTON, P.A., Respondent. . Heard |
Jan L. Warner, Sumter, and C. Dixon Lee, III, Columbia, for appellant.
Edmund H. Monteith of Monteith & Monteith, Columbia, for respondents.
In this domestic case, we are asked to determine whether res judicata principles barred the respondent Guy A. Calvert, Jr., M.D., from questioning the validity of using the cost of living index for determining periodic automatic increases or decreases in the amounts of alimony and child support due the appellant Patricia B. Calvert. We are also asked to determine whether a change in circumstances occurred since the entry of the divorce decree that warranted the family court reducing the amounts of alimony and child support Dr. Calvert is to pay Mrs. Calvert. We reverse.
The Calverts were divorced on December 28, 1976, after a twenty-five year marriage. Mrs. Calvert received custody of the parties' two minor children. The divorce decree incorporated and "made a part [thereof] ... as if it were set forth [therein] verbatim" a settlement agreement executed by Dr. and Mrs. Calvert twenty days earlier and found by the family court to be "fair under the circumstances."
The settlement agreement expressly recited that both parties had been represented by "independent attorneys" in the negotiations leading up to the settlement agreement, that the settlement agreement had been fully explained to them, and that they both were fully aware of the settlement agreement's contents and "of its legal effect."
One paragraph of the settlement agreement reads in part:
It is agreed that the alimony and support payments called for hereby will be increased or decreased if the ... cost of living index ... shows an increase or decrease from the level of such index as of October 1, 1976. For the purpose of increasing or decreasing the alimony and child support provided hereby, this instrument shall be reviewed as of October 1 of each even numbered year and the payments to the wife, alimony and child support, shall be increased or decreased for the next two years by the same proportion as the said index shall have increased or decreased from its October 1, 1976, level ....
The settlement agreement required Dr. Calvert initially to pay $1,000 a month in alimony and $500 a month for each child in child support until the child became emancipated. Upon the emancipation of a child, the settlement agreement obligated Dr. Calvert to pay Mrs. Calvert an additional $250 each month in alimony.
Neither party appealed the family court's divorce decree incorporating the settlement agreement.
Five years after the divorce decree was entered, Dr. Calvert brought the instant action. In one cause of action, he sought to delete from the settlement agreement the provision requiring the use every two years of the cost of living index for determining the amounts of automatic increases or decreases in his alimony and child support payments. His petition alleges the "cost of living index is not a valid basis for normal cost of living increases and should be stricken from the Agreement." In other causes of action, Dr. Calvert sought to terminate or, in the alternative, to reduce the amount he was required to pay each month in alimony and sought to reduce the amount he was required to pay each month in child support.
Mrs. Calvert answered Dr. Calvert's petition alleging that res judicata principles precluded Dr. Calvert from litigating the question regarding the validity of using the cost of living index to determine the amounts of periodic automatic increases or decreases in Dr. Calvert's alimony and child support obligations. She also denied Dr. Calvert was entitled to reductions in the amounts the settlement agreement required him to pay in alimony and child support each month.
Between the entry of the divorce decree in 1976 and the date of the hearing on Dr. Calvert's petition in 1983, one child became emancipated and the cost of living, according to the index, rose 69.93 per cent. As a consequence, Dr. Calvert at the time of the hearing was paying Mrs. Calvert monthly sums of $1,961.82 in alimony and $849.65 in child support.
In its order, the family court ignored Mrs. Calvert's res judicata defense and determined the cost of living index to be an unreasonable basis on which to base either increases or decreases in alimony and child support. It therefore deleted the cost of living index provision from the settlement agreement.
The family court also held the settlement agreement modifiable as to alimony and child support. It then found the existence of a change in circumstances and reduced the amounts of Dr. Calvert's monthly alimony and child support payments to $1,500 and $750, respectively.
The following provision, which forms a part of the paragraph quoted above, provides, as we read its order, the asserted basis for the family court's conclusion that the settlement agreement could be modified by eliminating therefrom the cost of living index provision:
[I]f the husband's income shall decrease materially through no fault of his own, including retirement, he shall have the right to apply to a Court of competent jurisdiction [for] such relief as may be justified including a reduction in alimony and/or child support.
The change in circumstances found by the court to have occurred since 1976 when the divorce decree was entered was the reduction in Dr. Calvert's income and the increases in his alimony and child support payments resulting from the operation of the cost of living index provision contained in the settlement agreement.
We address first the question of whether res judicata principles precluded Dr. Calvert from attacking the validity of using the cost of living index to determine periodic automatic increases or decreases in the alimony and child support due Mrs. Calvert.
Where the subject matter is the same, the judgment in former proceedings involving the same parties or their privies absolutely bars litigation in subsequent proceedings not only of the issues actually determined in the former proceedings but also of the issues that could properly have been raised and determined in the former proceedings. Taylor v. Taylor, 241 S.C. 462, 128 S.E.2d 910 (1962); Melton v. Melton, 229 S.C. 85, 91 S.E.2d 873 (1956).
Here, obviously, there is identity of parties in the two proceedings. There is also identity of the subject matter. Both proceedings concern Dr. Calvert's responsibility to pay alimony and child support. See McLeod v. Sandy Island Corp., 264 S.C. 463, 215 S.E.2d 903 (1975).
Although no question was raised in the former proceedings by either party regarding the validity of employing the cost of living index as the means of determining periodic automatic increases or decreases in the amounts of alimony and child support Dr. Calvert would be required to pay after entry of the divorce decree, clearly the question could have been presented by either party to the family court for decision. Dr. Calvert, therefore, was barred from litigating the issue of its validity.
We hold, then, that the family court erred in failing to apply Mrs. Calvert's defense of res judicata and in striking the cost of living index provision from the settlement agreement. It should not have considered the question of whether the use of the cost of living index in determining periodic automatic increases or decreases in Dr. Calvert's alimony and child support payments was valid.
In so holding, we note Dr. Calvert does not contend he was incompetent when he executed the settlement agreement. Cf. Anderson v. Anderson, 284 S.C. 487, 327 S.E.2d 355 (1985), appeal dismissed, 285 S.C. 275, 328 S.E.2d 481 (1985) ( ). He also does not contend the divorce decree was tainted by either fraud or collusion. Cf. Arnold v. Arnold, 285 S.C. 298, 328 S.E.2d 924 (1985) ( ); 46 Am.Jur.2d Judgments § 473 at 638 (1969) ( ).
Also, neither Condon v. Condon, 280 S.C. 357, 312 S.E.2d 588 (Ct.App.1984), as Dr. Calvert contends, nor Kane v. Kane, 280 S.C. 479, 313 S.E.2d 327 (Ct.App.1984) controls the conclusion we must reach in this instance. In those cases, the settlement agreements did not enjoy, as this one does, prior court approval.
Finally, we do not think the provision allowing the family court simply to reduce Dr. Calvert's alimony and child support payments where he suffered a material decrease in income "through no fault of his own" provides a basis on which the family court could strike the cost of living index provision from the settlement agreement.
It is unclear, however, whether the family court, in reducing Dr. Calvert's alimony and child support payments, relied upon the provision that specifically empowers the family court to reduce the amounts of his alimony and child support payments upon a showing by Dr. Calvert that his income, through no fault of his own, has materially decreased. Although the family court found as a fact that Dr. Calvert, since the entry of the divorce decree, suffered "a material decrease in [his] income, through no fault of his own," it also considered another circumstance. This circumstance is...
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