Coon v. Coon

• Citation: 588 S.E.2d 624,356 S.C. 342
• Decision Date: 22 September 2003
• Docket Number: No. 3678.,3678.
• Parties: Gay Ellen COON, Appellant, v. James Moore COON, Respondent.
• Court: Court of Appeals of South Carolina

356 S.C. 342

588 S.E.2d 624

Gay Ellen COON, Appellant, v. James Moore COON, Respondent.

No. 3678.

Court of Appeals of South Carolina.

Heard April 9, 2003.

Decided September 22, 2003.

Rehearing Denied November 21, 2003.

Ronald L. Richter, Jr., of Charleston, for Appellant.

Alex B. Cash, of Charleston, for Respondent.

HOWARD, J.:

This is an action by Gay Ellen Coon ("Wife") to enforce the payment of retirement benefits previously ordered by the family court. James Moore Coon ("Husband") moved pursuant to Rule 60(b)(4), South Carolina Rules of Civil Procedure, to vacate the previously entered final order. Husband asserted the family court lacked subject matter jurisdiction to order payment of more than fifty percent of his disposable military retirement pay to his spouse because to do so violated the Uniformed Services Former Spouse's Protection Act ("USFPA"), 10 U.S.C.A. § 1408 (1998). The family court agreed and vacated the prior order. Wife appeals. We reverse and reinstate the family court's prior order.

FACTS/PROCEDURAL HISTORY

In July 1999, the family court approved a settlement agreement between Husband and Wife, acknowledging the Husband's military retirement account was a marital asset subject to division. In accordance with the agreement, the order provided that Wife was entitled to one-hundred percent of the proceeds of Husband's military retirement account for nine years, and following the nine-year period, "the plan administrator will be directed to divided the proceeds equally between the parties."

No Qualified Domestic Relations Order ("QDRO") was sent to or approved by the Secretary of Defense in accordance with the USFSPA. Instead, Husband deposited the full amount of his retirement pay into a jointly held bank account, and Wife used the funds.

As a result, Husband was deemed the recipient of the funds and was responsible for the taxes. He did not withhold the proper amount of taxes in 1999 and part of 2000, so he withheld additional taxes in 2000 to cover out-of-pocket expenses he had incurred the previous year.

Wife then filed this enforcement action, arguing Husband violated the final order of July 1999 by increasing the amount of withholding deducted from the retirement benefit. Husband responded by filing a motion to vacate the original order approving the agreement pursuant to Rule 60(b)(4), arguing the order Wife sought to enforce was void for lack of subject matter jurisdiction because it allocated more than fifty percent of his disposable military retirement pay in violation of the USFSPA. The family court heard Husband's Rule 60(b)(4) motion and held Wife's rule to show cause in abeyance. The family court concluded:

The provisions of the [USFSPA] limit[] this Court's jurisdiction as to military retirement pay to a total amount not to exceed fifty percent of the disposable retired pay. For this reason, any order of the Court which attempts to allocate any sum in excess of the said fifty percent is void for lack of this Court's jurisdiction.

(emphasis added).

On April 2, 2001, the family court sent its order to the clerk of court and to the parties' attorneys. Wife served her motion to reconsider on Husband on April 6, 2001, and on the clerk of court on April 9, 2001. However, she waited until she received a "clocked" copy of her motion from the clerk of court, in August 2001, before she served her motion on the presiding judge. On October 3, 2001, the family court issued an order reaffirming its ruling. In its order, the family court also indicated Wife's motion to reconsider was untimely because she did not provide the presiding judge with a copy of the motion within ten days of filing. Wife served and filed her notice of appeal to this Court on November 1, 2001. This appeal follows.

LAW/ANALYSIS

I. Timeliness of Appeal

Initially, Husband asserts Wife's appeal to this Court is untimely because she failed to comply with the requirements of Rule 59(g), South Carolina Rules of Civil Procedure. Husband contends because Wife failed to serve a copy of her motion to reconsider on the family court within ten days of filing it with the clerk of court, the time for her appeal to this Court has expired. We disagree with Husband's reading of Rule 59(g) and find Wife's appeal to be timely.

Rule 59(g) requires "a party filing a written motion under this rule [to] provide a copy of the motion to the judge within ten (10) days after the filing of the motion." The notes to Rule 59 state the 1998 amendment adding subsection (g) was "intended to help insure that the judge is promptly notified that the motion has been filed." (emphasis added). As this Court discussed in Gallagher v. Evert, "[t]here is no indication that the failure to transmit a copy of the motion to the circuit court affects the tolling provision of Rule 203(b)(1), South Carolina Appellate Court Rules.¹ Therefore, the time for filing the notice of appeal did not begin to run until after the circuit court denied the motion." 353 S.C. 59, 63, 577 S.E.2d 217, 219 (Ct.App.2002). In accordance with Rule 59(g) and this Court's decision in Gallagher, we hold Wife was not required to file her notice of appeal until after the family court issued its order denying her motion to reconsider. Thus, her appeal to this Court is timely.

II. USFSPA & Jurisdiction

Wife contends the family court erred by vacating its prior order. Wife asserts the family court had subject matter jurisdiction because the retirement account is marital property. We agree and hold the limitation on the percentage of retirement benefits the family court is permitted to allocate speaks to the family court's authority and not its subject matter jurisdiction. Thus, we reinstate the family court's prior order.

A. Definition of Void

Initially, we note the posture of this case. Husband brought this motion pursuant to Rule 60(b)(4), South Carolina Rules of Civil Procedure, asserting the family court's prior final order approving the parties agreement was void for lack of subject matter jurisdiction. Thus, our inquiry is limited solely to determining the family court's subject matter jurisdiction in this matter.

"A void judgment is one that, from its inception, is a complete nullity and is without legal effect and must be distinguished from one which is merely `voidable.'" Thomas & Howard Co. v. T.W. Graham and Co., 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995) (quoting 46 Am.Jur.2d Judgments § 31 (1994)). "The definition of void under the rule ... encompasses... judgments from courts which lacked subject matter jurisdiction." McDaniel v. U.S. Fid. & Guar. Co., 324 S.C. 639, 644, 478 S.E.2d 868, 871 (Ct.App.1996) (internal quotations omitted); see also Ross v. Richland County, 270 S.C. 100, 103, 240 S.E.2d 649, 650 (1978)

(holding that if "`a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void'" (quoting Fox v. Board of Regents of Univ. of Mich., 375 Mich. 238, 134 N.W.2d 146, 148 (1965))).

However, irregularities which do not involve jurisdiction do not render a judgment void. Thomas & Howard Co., 318 S.C. at 291, 457 S.E.2d at 343.

[Furthermore,] [t]here is a wide difference between a want of jurisdiction in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction in which case the action of the trial court is not void although it may be subject to direct attack on appeal. A judgment will not be vacated for a mere irregularity which does not affect the justice of the case, and of which the party could have availed himself, but did not do so until judgment was rendered against him.

Id. (emphasis added) (internal citations omitted). Moreover, when a court acts with proper subject matter jurisdiction but takes some action outside of its authority, the party against whom the act is done must object and directly appeal. See Cosgrove v. Butler, 1 S.C. 241, 243 (1869) ("If such departures be not excepted to, the Court may consider objection to them as waived. And it may be asserted, as a general rule, that where there is no want of jurisdiction ..., [the Court's] judgment will be binding, even although affected by irregularity which would have defeated the proceeding if objection had been timely and properly made." (emphasis added)). Thus, if the family court had jurisdiction over the military retirement account, its original order is not void.

B. Jurisdiction v. Authority

"Subject matter jurisdiction refers to the court's `power to hear and determine cases of the general class to which the proceedings in question belong.'" Watson v. Watson, 319 S.C. 92, 93, 460 S.E.2d 394, 395 (1995) (quoting Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994)). South Carolina Code Annotated section 20-7-420(2) (Supp. 2003) grants the family court the exclusive jurisdiction "[t]o hear and determine actions: [f]or divorce a vinculo matrimonii... and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage." (emphasis added); cf. S.C.Code Ann. § 20-7-473 (Supp.2003) (stating the family court does not have jurisdiction to apportion nonmarital property).

In this case, the disputed property is a military retirement account, and we are required to examine the federal authority creating the property to determine its status. The USFSPA specifically permits state courts "[s]ubject to the limitations of this section, ... [to] treat disposable retired pay ... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1) (1998) (emphasis added). Clearly, Congress has chosen to permit the states to determine independently whether to treat military retirement benefits as marital property.

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