Davis v. Davis, 4188.

CourtCourt of Appeals of South Carolina
Citation641 S.E.2d 446
Decision Date21 December 2006
Docket NumberNo. 4188.,4188.
PartiesDeborah S. DAVIS, Respondent, v. James Kelly DAVIS, Appellant.
641 S.E.2d 446
Deborah S. DAVIS, Respondent,
James Kelly DAVIS, Appellant.
No. 4188.
Court of Appeals of South Carolina.
Heard December 5, 2006.
Decided December 21, 2006.
Rehearing Denied February 26, 2007.

[641 S.E.2d 450]

Michael David Wood, Patricia O'Neill DeTreville, and James Michael DeTreville, all of Charleston, for Appellant.

William J. Clifford, of North Charleston, for Respondent.


In this domestic action, James Kelly Davis (Husband) appeals the family court's (1) awarding Deborah Davis (Wife) alimony and attorney's fees; and (2) finding Husband in contempt for failure to comply with the family court's orders concerning the distribution of personal property, payment of Wife's equitable share of the marital home, harassment, and communication with Wife about the children's issues. We affirm.


Husband and Wife divorced on May 7, 2001 after almost twenty-one years of marriage. The couple has three sons.

Wife is a college graduate. At the time of the divorce she had worked in her father's insurance agency, primarily as the office manager, for approximately eleven years. Father retired in December, 2001 and Wife began working as a library media specialist at a middle school for a yearly salary of $31,000. She anticipated a $2000 yearly salary increase upon completion of her master's degree. In addition, Wife intends to become certified by a national board, for which she expects a $7500 yearly increase in salary. Her present income is supplemented with earnings from a part time job with Weight Watchers.

When Father retired, Wife's earnings from her work at Father's agency were near $85,000. Wife testified her income was inflated as a result of the father-daughter relationship. She enjoyed a flexible work schedule and the use of a company car. Father first mentioned his upcoming retirement in 1999, prior to Husband and Wife's divorce. Husband and Wife planned for Father's impending retirement by starting a gift basket business called Baskets of Fun. This venture was ultimately unsuccessful.

Wife explained that jobs available to her in the insurance industry would require extended periods of travel and would start at a salary of approximately $40,000 per year. She estimated her services while working in Father's business were worth $50,000 a year to a comparable insurance agency.

Husband formerly worked at Forsberg Engineering, where he earned an annual salary of $75,000, plus bonuses that brought his total yearly earnings to approximately $100,000. Prior to Father's retirement, Husband left Forsberg and began a land surveying business, Absolute Surveying, in which he currently holds a thirty-five percent interest. On his financial declaration he indicated an annual salary of $51,000. In addition to his salary, Absolute Surveying provided Husband with a car, car insurance and maintenance, gas, health insurance, health club, cable, and credit cards. The family court determined the value of those benefits amounted to $1100 monthly. Partnership distributions from Absolute averaged $1,333.33 per month. Husband had other real estate partnership interests which he failed to include on his financial declaration. Those interests yielded $35,000 from the sale of real property in 2002 and reflected an average of $10,000 equity in each of ten (10) condominiums.

The family court approved and adopted the parties' agreement on "all issues arising from the marriage, save and except the issue of divorce," in the March 12, 2001 divorce decree. Terms of the agreement relevant to Husband's appeal included a provision for joint legal custody of their three sons and the requirement that each party keep the other informed about matters concerning the children. The litigants were restrained from harming, harassing, bothering or otherwise disturbing each other, whether at their respective residences, employment, or the like. The marital home would be the sole property of Husband and, for the purpose of equitable distribution, valued at $325,000. The home was to be refinanced to provide funds for Wife's equitable share. Husband was permitted to subtract from the $325,000 valuation of the home the first mortgage payoff, reasonably necessary closing costs, and the

641 S.E.2d 451

balance of Wife's equity loan. In addition, Husband was directed to pay Wife fifty percent of settlement proceeds from Forsberg Engineering no later than the refinance closing date. Wife was entitled to obtain from Husband certain items of personal property, and the parties were instructed to cooperate in the expeditious transfer of those items. The parties agreed to reserve the issue of alimony for a five year period, during which either party could assert a claim for alimony against the other.

Wife filed a complaint on December 10, 2001, and an amended complaint on February 19, 2002, seeking $1000 per month alimony. During the pendency of this litigation Wife initiated a number of enforcement actions based on Husband's non-compliance with the divorce decree. In its final ruling the family court awarded Wife $635 per month in alimony, adjusted to be retroactive from the date of the temporary hearing. In addition to noting its concern over the absence of Husband's forthrightness regarding his income, the family court found Husband in contempt for failure to: (1) provide Wife with copies of family photographs, (2) pay Wife her equitable share of the marital home, (3) refrain from harassing Wife, and (4) communicate with Wife regarding issues with their children. Wife was awarded attorney's fees as well.


In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct.App.2005) (citing Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct.App. 2004)). However, this broad scope of review does not require this court to disregard the family court's findings. Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149 (Ct.App. 2005) (citing Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002)); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999). Nor must we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003) (citing Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996)). However, our broad scope of review does not relieve appellant of the burden of convincing this court the family court committed error. Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E.2d at 711 (citing Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979)).

I. Agreement

Husband argues the family court failed to effectuate the parties' intention as found within the agreement with regard to the reservation of alimony. We disagree.

In South Carolina, the construction of a separation agreement is a matter of contract law. Estate of Revis by Revis v. Revis, 326 S.C. 470, 477, 484 S.E.2d 112, 116 (Ct.App.1997). "Where an agreement is clear and capable of legal construction the court's only function is to interpret its lawful meaning and the intention of the parties as found within the agreement and give effect to them." Bogan v. Bogan, 298 S.C. 139, 142, 378 S.E.2d 606, 608 (Ct.App.1989). "In the enforcement of an agreement, the court does not have the authority to modify terms that are clear and unambiguous on their face." Messer v. Messer, 359 S.C. 614, 621, 598 S.E.2d 310, 314 (Ct.App.2004). "Where an agreement has been merged into a court's decree, the decree, to the extent possible, should be construed to effect the intent of both the judge and the parties." Id. at 628, 598 S.E.2d at 318 (citing McDuffie v. McDuffie, 308 S.C. 401, 409, 418 S.E.2d 331, 336 (Ct.App.1992)). "A court approved divorce settlement must be viewed in accordance with principles of equity and there is implied in every such agreement a requirement of reasonableness." Ebert v. Ebert, 320 S.C. 331, 340, 465 S.E.2d 121, 126 (Ct.App.1995) (quoting 17A Am Jur.2d Contracts 479 (1991)).

Unambiguous marital agreements will be enforced according to their terms. . . . The court must enforce an unambiguous contract according to its terms, regardless

641 S.E.2d 452

of the contract's wisdom or folly, or the parties' failure to guard their rights carefully. To discover the intention of a contract, the court must first look to its language—if the language is perfectly plain and capable of legal construction, it alone determines the document's force and effect.

Heins v. Heins, 344 S.C. 146, 158, 543 S.E.2d 224, 230 (Ct.App.2001) (citing Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct. App.1997)); Ebert v. Ebert, 320 S.C. 331, 465 S.E.2d 121 (Ct.App.1995); Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994); Superior Auto. Ins. Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973).

On the other hand, when an agreement is susceptible of more than one interpretation, it is ambiguous and the court should seek to determine the intent of the parties. Estate of Revis, 326 S.C. at 477, 484 S.E.2d at 116. Whether or not an ambiguity exists in an agreement must be determined from the language of the instrument. Steffenson v. Olsen, 360 S.C. 318, 322, 600 S.E.2d 129, 131 (Ct.App.2004); Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct.App.1997). "An ambiguous contract is one capable of being understood in more ways than one, an agreement obscure in meaning through indefiniteness of expression, or having a double meaning." Estate of Revis, 326 S.C. at 477, 484 S.E.2d at 116 (quoting Ebert, 320 S.C. at 338, 465 S.E.2d at 125).

The exact language of the agreement adopted in the divorce decree reads, in pertinent part:

The parties agree to reserve the issue of...

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