Ebert v. Ebert

• Decision Date: 13 September 1995
• Docket Number: No. 2412,2412
• Citation: 465 S.E.2d 121,320 S.C. 331
• Court: South Carolina Court of Appeals
• Parties: Michael Preston EBERT, Appellant, v. Ann Hill EBERT (Now Anders), Respondent. . Heard

Page 121

465 S.E.2d 121

320 S.C. 331

Michael Preston EBERT, Appellant, v. Ann Hill EBERT (Now Anders), Respondent.

No. 2412.

Court of Appeals of South Carolina.

Heard Sept. 13, 1995.

Decided Nov. 6, 1995.

Rehearing Denied Dec. 21, 1995.

Certiorari Denied Oct. 17, 1996.

Kermit S. King and Rochelle Y. Williamson, King & Vernon, Columbia, for appellant.

James T. McLaren and C. Dixon Lee, III, McLaren & Lee, Columbia, for respondent.

CURETON, Judge:

Michael Preston Ebert (the husband) brought this action against his former wife Ann Hill Ebert Anders (the wife) seeking termination of periodic monthly payments under their divorce decree because of the wife's remarriage, and also an order requiring the wife to reconvey the marital home to him. The wife counterclaimed for reimbursement of amounts she spent on behalf of the parties' children and attorney fees. The family court found the award of the marital home and the $4,000 monthly payments were in the nature of a property division, not alimony, and denied the husband relief. The court granted the wife relief on her counterclaim and ordered the husband to pay her attorney's fees. The husband appeals. We affirm the trial court's findings that the transfer of the marital home, related maintenance expenses on the marital home, and the monthly payments were in the nature of equitable division. We also affirm the award of reimbursement for expenses for the children and attorney fees. We remand for the family court to establish a date by which the marital residence must be sold.

Background

The parties married on March 3, 1968. They have two children: Michael Preston Ebert, Jr., born June 6, 1970, and Suni Ann Ebert, born July 27, 1972. After twenty-two years of marriage, they divorced in January 1990.

The issues in this appeal arise out of a settlement agreement the parties reached in November 1989, which was merged into a family court order in December 1989. The agreement purported to settle all financial and property issues between the parties, leaving only the issue of divorce open. There was no appeal of this order.

In pertinent part, the agreement provides:

1. CHILD CUSTODY. Michael Preston Ebert, Jr. is above the age of 18. It is stipulated that Wife shall be the custodial parent of Suni Ann Ebert until her 18th birthday on July 27, 1990. However, Husband shall not be required to pay child support for Suni to Wife as Husband is supporting Suni directly through her attendance at a private school to which he is making payments and through allowances made directly to the child.

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3. CONDITIONAL WAIVER OF ALIMONY. It is anticipated that Wife will sell the property constituting the present marital home, located at Lake Murray, and will realize from such sale liquid funds, after taxes of $850,000.00, to invest and provide for her own support without a need for alimony. Such amount is computed by applying a tax basis of not less than $200,000.00 to the contemplated net sale price after any commissions of not less than $1,279,000.00. Assuming the success of such contemplated transactions, [W]ife makes no claim to alimony against Husband. Husband makes no claim to alimony against Wife.

4. PROVISIONS PERTAINING TO CONTEMPLATED SALE OF MARITAL HOME. It is Wife's announced intention to sell the lake property, consisting of about 11.47 acres and improvements. Husband shall immediately convey said property to Wife. Wife shall offer such property for sale at a price not less than $1,279,000 net of any sales commissions. Pending a sale, Husband shall be responsible for the yard maintenance of the home, the payment of property taxes thereon and the payment of insurance premiums on the improvements. He shall also have an air conditioner compressor repaired or replaced and shall pay to Wife the sum of $4,000 per month on the first day of each month beginning December 1, 1989 to terminate upon the sale of the marital residence and receipt of net proceeds of $1,279,000 to [Wife]. For the month of November, 1989, he shall make the same financial provision for her that he has made in past months. Such payments to or on behalf of Wife shall not be included in the income of Wife as alimony under IRC § 71 and shall not be deducted by Husband as alimony under § 215. It is stipulated that until January 1, 1993[,] Husband shall be the primary person in charge of obtaining a suitable buyer for the home and shall set the price (subject to the minimum net price herein). If Husband is successful in obtaining a price in excess of $1,279,000 (after commissions, if any) Husband shall receive (a) reimbursement from such excess, but only to the extent of such excess, for the $4,000 per month he shall have paid to Wife pending such sale, and (b) 65% of any remaining excess after deducting the reimbursement of $4,000 per month, if there be any such excess, and after deducting the proportionate amount of commissions relating to the sale. The basis of the [W]ife's waiver of alimony is the expectation that she should realize net proceeds from the contemplated sale of the property of not less than $1,279,000. Husband will employ his best efforts to bring about a sale at the earliest possible time. After January 1, 1993 [W]ife shall be free to market and sell the property to whomever she chooses at whatever price she chooses.

In the event Wife ceases to utilize the property as her primary residence pending such sale, Husband may utilize it as his primary residence. In any event, Wife shall cooperate fully in the sale of the property and maintain the same in salable condition.

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9. OTHER OBLIGATIONS. This Agreement contemplates that Wife shall have no obligations toward the financial support of their two children who are presently in school, it being contemplated that Husband shall relieve Wife of any such responsibility. Also, Husband shall have no further financial responsibility to Wife except as provided in this Agreement.

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11. COURT APPROVAL AND MERGER: SUBSEQUENT DIVORCE. The parties stipulate that this Agreement is to be submitted to the Family Court for approval and merger in a Decree or an Order of the court as a permanent and nonmodifiable disposition of the issues resolved by the Agreement and shall be enforceable by contempt. In the event either party should seek a divorce from the bonds of matrimony, this Agreement shall be dispositive of all issues as to marital and property rights.

The court "approved, adopted and merged" the agreement into its December 1989 order. Thereafter, on January 2, 1990, the family court issued an order granting the wife a divorce on the ground of the husband's adultery.

In August 1992, the husband filed an action seeking to terminate the $4,000 monthly payments and the marital home expense payments, claiming the payments were in the nature of alimony which the wife had forfeited by her remarriage. The husband further claimed he was entitled to an order requiring the wife to reconvey the marital home to him since the award was in the nature of support, not a property award. The husband also alleged the children were in college and both were "possessed of substantial trusts which are more than capable of providing for the costs of higher education," and requested the court order educational expenses paid from those trusts. Additionally, the husband sought attorney's fees.

The wife responded that the monthly payments were part of the property division and not subject to termination or reduction. She claimed the family court lacked jurisdiction to modify the property division. The wife also counterclaimed, alleging the husband was $5,000 in arrears in payments for maintenance and expenses on the property, was consistently late in making the $4,000 monthly payments, and had failed to reimburse her for expenses she incurred on behalf of Michael and Suni totaling $65,000. The wife also sought attorney fees.

In a September 1992 pendente lite order the family court denied the husband's request for a reduction or termination of the $4,000 monthly payments pending a final hearing. ¹ In October 1992, the husband stopped making the payments and the wife subsequently sought an order holding him in contempt. In December 1992, the family court held the husband in contempt and ordered him to continue making the monthly payments.

I.

The first issue we address is whether extrinsic evidence was admissible to aid in interpreting the December 1989 order. The question of when extrinsic or parol evidence may be admitted to alter, add to, amend or vary a written agreement has frequently been considered by the appellate courts of this State. When considering the question of whether extrinsic or parol evidence is admissible to assist in interpreting or construing a court approved marital agreement, this court stated in Bogan v. Bogan, 298 S.C. 139, 378 S.E.2d 606 (Ct.App.1989):

We thus begin our analysis of the disputed provision by pointing out that while the term is found in a divorce decree, the decree was entered by consent of the parties and incorporated their agreement. Thus, we are essentially dealing with an agreement between the parties.

Id. at 142, 378 S.E.2d at 608.

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 it. Id. Where an agreement is ambiguous, the court should seek to determine the intent of the contracting parties. Mattox v. Cassady, 289 S.C. 57, 344 S.E.2d 620 (Ct.App.1986). 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. Bruce v. Blalock, 241 S.C. 155, 127 S.E.2d 439 (1962); accord Klutts Resort Realty v. Down 'Round Dev. Corp, 268 S.C. 80, 232 S.E.2d 20 (1977).

The agreement at issue had a "Marital Asset Addendum"...