Emery v. Smith, No. 3870.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON, J.
• Citation: 361 S.C. 207,603 S.E.2d 598
• Parties: Sharon EMERY, Respondent, v. Ross J. SMITH, Appellant.
• Decision Date: 27 September 2004
• Docket Number: No. 3870.

361 S.C. 207
603 S.E.2d 598

Sharon EMERY, Respondent,
v.
Ross J. SMITH, Appellant

No. 3870.

Court of Appeals of South Carolina.

Heard September 14, 2004.

Decided September 27, 2004.

361 S.C. 210

W. Tracy Brown, of Charleston, for Appellant

Gregory S. Forman, of Charleston, for Respondent.

ANDERSON, J.:

Sharon Emery (Emery) initiated this action against Ross J. Smith (Smith), her ex-husband, to enforce her right to 25% of his military retirement benefits. The family court rejected Smith's laches defense and ordered him to pay Emery 25% of the benefits received since his retirement in 1991. We affirm as modified and remand.

FACTUAL/PROCEDURAL BACKGROUND

Smith was in the United States Navy when he and Emery were married in 1973. The couple remained married for sixteen years and had one child, a son born in 1975. Smith and Emery were divorced on January 12, 1989. In connection with the divorce, the parties entered into a property settlement agreement on December 12, 1988. The settlement agreement provided: (1) that Smith would pay Emery $6,000 in $200 monthly installments, beginning January 1, 1989; (2)

361 S.C. 211

that Smith, the father, would have custody of their son; and (3) that Emery would pay $65 per month as child support. The agreement stated

Husband is on active duty with the United States Armed Forces and expects to retire after 20 years. Of this 20 year period, husband and wife have been married for approximately 15 years. Husband and Wife acknowledge and agree that they have reached a settlement as to the issue of an equitable division of his retirement income in that the wife shall receive, on a monthly basis, payable directly to the Wife, by direct payment from the applicable government agency, Twenty five (25%) percent of the Husband's total monthly retirement benefit at such time as retirement payments or benefits commence. Husband and Wife understand that this provision is contingent upon the Husband's retirement and receiving retirement benefits from the United States Armed Forces.

The divorce decree, signed January 12, 1989, approved the parties' agreement, adopted it, and merged the agreement into the decree. The decree contained the following mandate:

That [Smith] provide any and all information necessary and sign any and all forms or documents necessary or convenient to provide for [Emery] to receive by direct military allotment twenty five percent (25%) of the [Smith's] total military retirement (Pension) that [Smith] subsequently receives due to retirement from the United States Armed Forces.

(Emphasis added).

After the divorce, Smith kept the marital home in Charleston, and Emery moved nearby to remain close to their son. The parties apparently maintained a civil relationship, but within a few months after the divorce, Emery stopped paying child support and Smith ceased paying the $200 per month to Emery. Smith retired from the military on June 30, 1991 and began receiving retirement benefits one month later. Emery, who remarried in December of 1991, did not receive any portion of the pension until shortly after the commencement of this litigation, in 2001, when she began receiving 25% of Smith's benefits directly from the government.

361 S.C. 212

At trial, Smith admitted that he did not notify Emery of his retirement or tell her that he had begun receiving benefits

Q: And did you provide any and all information necessary and sign any and all forms or documents necessary pursuant to this order to her?

A: No, Sir.

Q: Never?

A: No, Sir.

Furthermore, Emery testified that on at least one occasion she asked Smith about his retirement benefits but was provided no information:

Q: Did you, at any time, ask [Smith] about his retirement and about the money?

A: Yes.

Q: And when, if you can tell us, was that?

....

A: I think I probably asked him once or twice about it.

Q: But when was it?

A: (No response.)

Q: How far back?

A: Let me — nine years or so.

Q: So sometime nine years from this date back? So That's 1995, '94?

A: Yeah —

Q: Somewhere around there?

A: Somewhere in there.

Q: And what was his response, if any, to you?

A: I wasn't given any information about his retirement. The date or —

Emery averred that she suffers from a number of medical conditions, including Anasara (a swelling of the body), fibromyalgia, a large hiatal hernia, and depression. Although she was able to work as a nurse after the divorce, the depression was so debilitating that she mostly stayed at home in bed when she was not working. She claimed that due to the depression, she lacked the energy to pursue her claim. Emery

361 S.C. 213

attempted to discuss the pension with Smith before she commenced this action, but she testified he became very angry, causing her to avoid the subject with him.

Due to increasing medical bills, Emery eventually sought the help of an attorney. She filed this action on November 21, 2001, seeking enforcement of her ownership interest, as agreed to by her and her ex-husband, in 25% of his military pension. The family court rejected Smith's defense of laches and ordered him to pay Emery 25% of his pension from the date of his first collection through the date of her first collection directly from the government. Smith's motion to reconsider was denied. This appeal follows.

STANDARD OF REVIEW

In appeals from the family court, the court of appeals has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992); Craig v. Craig, 358 S.C. 548, 595 S.E.2d 837 (Ct.App.2004). This, however, does not require us to disregard the findings of the family court. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999) (citing Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981)).

LAW/ANALYSIS

I. Effect of the Merger of the Agreement into the Decree

In Smith and Emery's divorce decree, the family court judge found that "the parties have requested that this Court should approve this Agreement for enforcement purposes and that the Agreement should merge into any decree or Order of this Court so as to lose its contractual nature." Accordingly, the court's order proclaimed:

That the annexed Agreement entered into by and between [Emery] and [Smith] dated December 12, 1988, be and hereby is, adopted by the Court as a part of this Decree

361 S.C. 214

and is merged into this Decree so as to lose its contractual nature. The parties are hereby directed and ordered to fully and completely comply with the terms and conditions thereof. It is further ordered that both parties shall be subject to the contempt powers and jurisdiction of this Court for enforcement purposes in the future.

By merging the agreement into the decree, the court transformed it from a contract between the parties into a decree of the court. Prior to Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983), South Carolina law was unclear as to what specific language rendered an agreement enforceable by the court rather than being merely enforceable as a contract between the parties. The Moseley court noted, "Words of art such as `ratified', `adopted', `approved', `incorporated and []merged', and `incorporated without merger' consistently have confused attorneys, judges and laymen in this state." Id. at 352, 306 S.E.2d at 626.

Moseley marked a change in the law. Since Moseley, our courts "assume that any settlement in a divorce decree is intended to be judicially decreed unless there is some explicit, clear and plain provision in the court approved separation agreement or the decree." Id. at 353, 306 S.E.2d at 627. The effect of an agreement becoming a judicial decree is not to be understated. "With the court's approval, the terms become a part of the decree and are binding on the parties and the court." Moseley at 353, 306 S.E.2d at 627; accord Croom v. Croom, 305 S.C. 158, 161, 406 S.E.2d 381, 383 (Ct.App.1991). Thereafter, the agreement, as part of the court order, is fully subject to the family court's authority to interpret and enforce its own decrees. See, e.g., Terry v. Lee (Terry I), 308 S.C. 459, 419 S.E.2d 213 (1992) (stating that the family court has exclusive jurisdiction to determine the rights of the parties under an agreement incorporated into a family court decree). Indubitably, what had been a contract between Smith and Emery became appreciably more efficacious when the family court merged the parties' agreement into the court's decree.

II. Ownership of the Military Retirement Benefits

Military retirement benefits accrued during marriage constitute marital property. Martin v. Martin, 296 S.C. 436,

361 S.C. 215

373 S.E.2d 706 (Ct.App.1988); Curry v. Curry, 309 S.C. 539, 424 S.E.2d 552 (Ct.App.1992). Consequently, 25% of all of the military retirement benefits Smith has received and will receive belong to Emery pursuant to the 1989 decree. She owns that portion by court order. Indeed, Emery has received her share of Smith's benefits since shortly after commencement of this action. Smith does not dispute her current entitlement to 25% of his pension.

III. Laches

Smith argues that the doctrine of laches should prevent Emery from collecting her 25% share of his benefits dating back to 1991. We disagree.

"Laches is neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law...