Christy v. Christy
| Decision Date | 11 April 1995 |
| Docket Number | No. 2207,2207 |
| Citation | 452 S.E.2d 1,317 S.C. 145 |
| Court | South Carolina Court of Appeals |
| Parties | Vida L. CHRISTY, Respondent, v. James C. CHRISTY, Appellant. James C. CHRISTY, Respondent, v. Vida L. CHRISTY, Appellant. |
Thomas R. Goldstein, of Belk, Cobb, Chandler & Goldstein, Charleston, for appellant-respondent.
Robert N. Rosen and Donald B. Clark, both of Rosen, Rosen & Hagood, Charleston, for respondent-appellant.
Opinion No. 2207, filed July 25, 1994, in the above appeal is hereby withdrawn and the following opinion is substituted therefor.
After a careful consideration of the Petition for Rehearing, the Court is unable to discover that any material fact or principle of law has been either overlooked or disregarded and, hence, there is no basis for granting a rehearing. It is, therefore, ordered that the Petition for Rehearing be denied.
AND IT IS SO ORDERED.
In this domestic matter, we consolidate two related appeals. 1 The facts appear as follows.
The parties were divorced by a family court order dated August 2, 1989. The husband appealed and this court affirmed in part and modified the monthly alimony award. Several issues subsequently arose in the family court including the husband's reduction of the monthly alimony payments before the remittitur was filed from the appellate court, payment of attorney fees to the wife for a rule to show cause, both parties' requests for assessment of interest, and reimbursement or offset for over payment of alimony following modification. There was also the issue of the recusal of one family court judge from a hearing on a contempt proceeding. The husband has appealed from several family court orders relating to these matters. The wife appeals from an order offsetting future alimony payments for overpayment of alimony. We affirm in part and reverse in part.
We address the issues under the categories of (1) reduction of alimony payments and (2) award of interest.
Reduction of alimony payments
The family court awarded the wife $2,500 per month in permanent, periodic alimony. On appeal, this court modified the award to $1,750 per month by a decision dated September 24, 1991. The remittitur was sent down from this court on January 10, 1992, after petitions for rehearing and certiorari were denied.
The wife filed a complaint for contempt dated November 21, 1991, in which she alleged the husband had violated the family court order because he paid $1,750 in alimony for November rather than $2,500. A rule to show cause was issued in December 1991. In addition to an answer and counterclaim, the husband filed a motion to change venue, a motion for continuance, and a motion for leave to take depositions.
On December 16, 1991, the parties and counsel appeared before the Hon. Robert R. Mallard on the rule to show cause. At that time, counsel for the wife asked Judge Mallard to recuse himself based upon concern about his impartiality. Judge Mallard granted the motion for recusal.
The parties and counsel then appeared before the Hon. L. Mendel Rivers. By an order dated December 16, 1991, Judge Rivers denied the motion for a continuance. On January 6, 1992, he also denied the motion to change venue and motion for discovery. On the merits, Judge Rivers found the husband was not in contempt of court because he was acting on the advice of counsel. However, he held there was no final disposition of the appeal until the remittitur was filed. Therefore, the husband was ordered to pay the monthly alimony pursuant to the family court order until the remittitur was filed. The court awarded $850 in attorney fees to the wife. It is from these orders of Judge Mallard and Judge Rivers that the husband appeals.
In February 1992, the husband brought an action seeking reimbursement for an alleged overpayment of $22,500 in alimony based upon the payment of $750 per month in excess of the modified amount for a 30 month period. He asserted he was entitled to this amount from August 1989, the date of the original family court award, to January 1992, the date the remittitur was sent down from the Court of Appeals decision reducing the amount of the Wife's alimony award. The matter was heard before the Honorable James A. Spruill, III on November 30, 1992. On December 29, 1992, Judge Spruill issued his order finding the husband was entitled to deduct $500 monthly from his alimony payment to offset his overpayment of $22,500. It is from this order of Judge Spruill that the wife appeals.
The husband first contends Judge Mallard erred in recusing himself from the contempt proceeding at the request of the wife's counsel. We disagree.
Canon 3(C)(1) of the Code of Judicial Conduct, Rule 501, SCACR provides that a "judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." Thus, a judge must exercise sound judicial discretion in determining whether his impartiality might reasonably be questioned. Judge Mallard concluded it would be in the best interest of all parties that he recuse himself. We will not second guess his determination, for whether or not he was able to exercise impartiality, he judiciously chose to avoid the appearance of impropriety. Further, there is no indication the decision prejudiced the husband. Presumably, Judge Rivers applied the same principles of law Judge Mallard would have applied.
The husband next asserts Judge Rivers erred in refusing to change venue of the case from Charleston to Berkeley County. We disagree. The husband resided in Charleston County at the commencement of the divorce action, but moved to Berkeley County. The contempt proceeding before Judge Rivers was a direct outgrowth of the divorce action which was brought in Charleston County. We find no prejudice to the husband.
The husband further asserts error in Judge Rivers's decision to deny a continuance for purposes of discovery depositions. The matter before the court was a rule to show cause in a contempt proceeding for failure of the husband to pay court ordered alimony. The husband wanted to take the deposition of the wife to demonstrate she could pay attorney's fees. He also wanted to take the deposition of her alleged live-in paramour asserting any common law marital relationship would bar the wife from receiving alimony. We agree with Judge Rivers there was no necessity for the depositions. Whether the wife had such a relationship was irrelevant to this proceeding. The husband could bring a later action to modify alimony if he believed there had been a change of circumstances due to the alleged paramour. Further, the wife stipulated she could pay attorney's fees, but should not have to in order to enforce her rights. Therefore, there was no issue of her ability to pay.
The husband also contends Judge Rivers erred in ordering him to pay $850 in attorney's fees on the rule to show cause. Counsel for the wife submitted an affidavit regarding attorney's fees to the court seeking $1,180. Counsel for the husband indicated a desire to cross examine opposing counsel, but the court refused the request. We find no error. It is axiomatic that an award of attorney fees by the trial judge in a domestic action will not be disturbed on appeal absent an abuse of discretion. Our review of the record reveals no abuse of discretion. The amount awarded was less than the amount sought. We further note these attorney's fees were incurred as the result of a contempt proceeding. Although the court did not find the husband technically in contempt as he failed to make full payments on the advice of counsel, the matter was brought by the wife to enforce compliance with the court's order. Accordingly, we find no error.
The husband further alleges error in Judge Rivers' determination that the husband was required to continue to pay the original alimony award of $2,500 a month since the remittitur had not been returned by the appellate court. He asserts this court's opinion modifying the alimony award was effective as of September 24, 1991, the date of issue. We disagree.
The final disposition of a case occurs when the remittitur is returned by the clerk of the appellate court and filed in the lower court. McDowell v. South Carolina Department of Social...
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