Gainey v. Gainey

Citation675 S.E.2d 792
Decision Date04 March 2009
Docket NumberNo. 4515.,4515.
CourtCourt of Appeals of South Carolina
PartiesJames Dean GAINEY, Respondent, v. Jody Lee GAINEY, Appellant.

Steven S. McKenzie, of Manning, for Appellant.

Michael W. Self, of Sumter and Robert L. Widener, of Columbia, for Respondent.

PER CURIAM:

This appeal arises from the denial of motions under Rule 60(b)(1)-(4), SCRCP, to set aside a decree of separate support and maintenance issued for Jody Lee Gainey (Wife) and James Dean Gainey (Husband). The family court found that Wife had failed to carry her burden of proof on all issues raised in her motions. Wife appeals, asserting that the family court erred in failing to vacate the decree of separate support and maintenance under Rule 60(b), SCRCP, because (1) the family court lacked subject matter jurisdiction to approve the agreement; (2) Husband committed fraud upon the court; (3) Wife's neglect in not having an attorney present at the hearing was excusable; (4) Wife's entry into the agreement was not free and voluntary; (5) the agreement was unfair; and (6) the family court failed to attempt reconciliation of the parties. We do not find sufficient grounds to vacate the decree of separate support and maintenance.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in 1988 and have two children. During the course of the marriage, Wife's primary responsibilities included managing the family home and raising the children, while Husband provided all of the financial resources for the family. Early in 2004, Husband informed Wife that he wanted a divorce, and both parties proceeded to meet with an attorney, Richard Jones.

Shortly after Husband informed Wife that he wanted a divorce, Wife sought medical treatment and was diagnosed with progressive anxiety and situational-related depression. Wife was treated with anti-depressant therapy on a monthly basis until April 2004 and again in September 2004.

Attorney Jones informed the couple that he would represent only the Wife. A short time later, Jones met solely with Wife and informed her that the proposed property and separation agreement the parties had presented to him was not fair to her. Jones also met with Husband's accountant and that meeting confirmed to Jones that the proposed agreement was not in Wife's best interest. Subsequently, Wife twice instructed Jones to cease any further representation in her case. Jones stated in his affidavit that during one of Wife's telephone conversations with Jones, he heard Husband in the background telling Wife what to say.1 Wife later asked Jones to resume representing her, but she never executed the attorney-client agreement reaffirming its terms, as requested by Jones. After Wife signed the property and separation agreement with Husband, she again met with Jones and requested that he resume representing her, but Jones refused and recommended she seek other counsel.

The present case commenced in family court when Husband filed a complaint in which he sought a decree of separate support and maintenance, claiming that irreconcilable differences had arisen between the parties. In addition, Husband alleged, among other things, that the parties had entered into a property and separation agreement to resolve all of their marital issues.2 The parties sought review and approval of the agreement. The pro se answer signed by Wife admitted the allegations of the complaint and requested that the court grant the relief.

The parties acknowledged at the hearing for separate support and maintenance that each had made full financial disclosure to the other; that each was satisfied with the terms of the agreement and thought it was fair; that neither was under the influence of any drugs, intoxicants or medications that could affect his or her judgment; and that neither was forced or felt stressed or pressured to enter into the agreement. In addition, Wife indicated that she had consulted an attorney regarding the agreement but wanted to proceed without an attorney because she did not need counsel. The family court issued a decree of separate support and maintenance on July 21, 2004.

On December 27, 2004, Wife attempted to acquire a copy of the transcript from the July 21, 2004 hearing. On April 15, 2005, after receiving no response regarding the transcript, Wife filed a motion to vacate order and set aside agreement under Rule 60(b), SCRCP.3 The motion was based on alleged fraud on the part of Husband and on the contention that Wife was forced to enter into the property and separation agreement. Wife further alleged that on the date of the hearing, she was being treated for severe depression and was under the influence of medications for mental illness that clouded her judgment.

Subsequently, Wife made a second attempt to obtain a copy of the transcript but she did not receive the transcript until August 2005. Thereafter, she filed her first and second amended motions. In her first amended motion to vacate order and set aside agreement, Wife asserted that the family court lacked subject matter jurisdiction to hear the matter under S.C.Code Ann. § 20-3-130(G) (Supp. 2008) because the parties were still residing together at the time the matter was heard,4 and as such the judgment was void under Rule 60(b)(4), SCRCP. The second amended motion contended that the family court erred when it failed to attempt reconciliation of the parties. The family court denied the motions and this appeal followed.

ISSUES ON APPEAL

1. Did the family court lack subject matter jurisdiction to approve the agreement under S.C.Code Ann. § 20-3-130(G) (Supp.2008)?

2. Did the family court err in failing to vacate the original order under Rule 60(b), SCRCP, where Husband allegedly committed fraud upon the court; where Wife's neglect in not having an attorney present at the hearing was excusable, and her entry into the agreement was allegedly not free and voluntary; and where the agreement was unfair?

3. Did the family court err in failing to attempt reconciliation of the parties?

STANDARD OF REVIEW

"The decision to grant or deny a motion under Rule 60(b) is within the sound discretion of the trial court." Lanier v. Lanier, 364 S.C. 211, 215-16, 612 S.E.2d 456, 458 (Ct.App.2005) (citing Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992)). Therefore, the decision can be reversed only if the family court abused its discretion. Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 18 594 S.E.2d 478, 482 (2004). An abuse of discretion occurs when the judge issuing the order was controlled by an error of law or the order is based on factual conclusions that are without evidentiary support. BB&T v. Taylor, 369 S.C. 548, 551, 633 S.E.2d 501, 503 (2006) (citing Tri-County Ice & Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990)).

However, as to the family court's findings of fact, the appellate court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Ables v. Gladden, 378 S.C. 558, 564, 664 S.E.2d 442, 445 (2008). This does not require the appellate court, however, to disregard the findings of the family judge, who saw and heard the witnesses. Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102(2005); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999).

LAW/ANALYSIS
A. The Court's Jurisdiction

Wife contends the family court lacked subject matter jurisdiction to issue a decree for separate support and maintenance and approve the agreement because the parties were not living separate and apart. We disagree that subject matter jurisdiction was implicated. Further, we find that because this issue was not presented to the family court at the time the agreement was approved, any error was not preserved and cannot be raised successfully in this collateral attack via a Rule 60, SCRCP motion. Therefore, we hold that the family court correctly denied Wife relief under Rule 60(b)(4), SCRCP, and we need not reach the propriety of the family court's exercise of authority under S.C.Code Ann. § 20-3-130(G) (Supp. 2008).

A judgment of a court without subject matter jurisdiction is void and constitutes grounds for the court to vacate the judgment under Rule 60(b)(4). Thomas & Howard Co., Inc. v. T.W. Graham & Co., 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995); Rule 60(b)(4) (stating a court may relieve a party from a final judgment if the judgment is void). "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., 318 S.C. at 291, 457 S.E.2d at 343 (1995) (citation omitted).

However, 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." Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) (citations omitted); Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 83 n. 5, 529 S.E.2d 6, 8 n. 5 (2000) (citations omitted); see also State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005). Numerous cases have held that subject matter jurisdiction is not implicated when the court possesses the power to hear and determine cases of the general class to which the proceedings in question belong. See State v. Campbell, 376 S.C. 212, 656 S.E.2d 371 (2008); Johnston v. S.C. Dep't of Lab., Licensing, and Reg., S.C. Real Estate Appraisers Bd., 365 S.C. 293, 617 S.E.2d 363 (2005); Fryer v. S.C.L. Enforcement Div., 369 S.C. 395, 631 S.E.2d 918 (2006).

In the instant case, Wife did not challenge the family court's authority under section 20-3-130(G) at the time of the hearing for separate support and maintenance, nor did she file a direct appeal from that order. Instead, some thirteen months after issuance of the order, Wife asserted the family court lacked jurisdiction to approve the agreement in her ...

To continue reading

Request your trial
39 cases
  • Kosciusko v. Parham
    • United States
    • South Carolina Court of Appeals
    • 6 Noviembre 2019
    ...legal effect ...." Katzburg v. Katzburg , 410 S.C. 184, 187, 764 S.E.2d 3, 5 (Ct. App. 2014) (quoting Gainey v. Gainey , 382 S.C. 414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009) ). "A judgment of a court without subject[-]matter jurisdiction is void ...." Id . (quoting Gainey , 382 S.C. at 42......
  • Theisen v. Theisen
    • United States
    • South Carolina Supreme Court
    • 19 Septiembre 2011
    ...in separate domiciles. The dissent relies, in part, on Murray v. Murray, 271 S.C. 62, 244 S.E.2d 538 (1978) and Gainey v. Gainey, 382 S.C. 414, 675 S.E.2d 792 (Ct.App.2009) in support of its position that living separate and apart is not a prerequisite for instituting an action for separate......
  • Johnson v. Johnson
    • United States
    • South Carolina Court of Appeals
    • 5 Diciembre 2018
    ... ... party retains control over the documents." (quoting ... Lans v. Gateway 2000, Inc., 110 F.Supp.2d 1, 5 ... (D.S.C. 2000))); Gainey v. Gainey, 382 S.C. 414, ... 425, 675 S.E.2d 792, 798 (Ct. App. 2009) ("In South ... Carolina, extrinsic fraud is the only type of fraud ... ...
  • Johnson v. Johnson
    • United States
    • South Carolina Court of Appeals
    • 5 Diciembre 2018
    ...control over the documents." (quoting Lans v. Gateway 2000, Inc., 110 F. Supp. 2d 1, 5 (D.S.C. 2000))); Gainey v. Gainey, 382 S.C. 414, 425, 675 S.E.2d 792, 798 (Ct. App. 2009) ("In South Carolina, extrinsic fraud is the only type of fraud for which relief may be granted under Rule 60(b)(3)......
  • Request a trial to view additional results
1 books & journal articles
  • Family Court Approval of a Marital Settlement Agreement Over One Party's Objection
    • United States
    • South Carolina Bar South Carolina Lawyer No. 26-4, January 2015
    • Invalid date
    ...332 S.E.2d 205, 206 (1985). [5] Drawdy v. Drawdy, 275 S.C. 76, 77, 268 S.E.2d 30, 30 (1980). [6] Gainey v. Gainey, 382 S.C. 414, 428, 675 S.E.2d 792, 799 n.5 (Ct. App. 2009). [7] Swentor v. Swentor, 336 S.C. 472, 479, 520 S.E.2d 330, 334 (Ct. App. 1999) (citing S.C. Code §§ 20-3-130(G) and ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT