Heins v. Heins, 3281.

• Decision Date: 08 January 2001
• Docket Number: No. 3281.,3281.
• Citation: 344 S.C. 146,543 S.E.2d 224
• Parties: Amy N. HEINS, Appellant, v. Donald L. HEINS, Respondent.
• Court: South Carolina Court of Appeals

344 S.C. 146

543 S.E.2d 224

Amy N. HEINS, Appellant, v. Donald L. HEINS, Respondent.

No. 3281.

Court of Appeals of South Carolina.

Heard December 13, 2000.

Decided January 8, 2001.

Charles S. Altman and Robert E. Culver, of Finkel & Altman, of Charleston, for appellant.

D. Dusty Rhoades, of Charleston, for respondent.

ANDERSON, Judge:

Amy N. Heins ("Wife") brought a contempt action against her former husband, Donald L. Heins ("Husband"), to enforce several provisions of their property settlement agreement. The agreement was incorporated into the couple's final decree of divorce. The Family Court initially held Husband in contempt; however, it reversed itself on reconsideration and additionally awarded Husband attorney's fees and costs. We reverse.

FACTS/PROCEDURAL BACKGROUND

In September 1997, Wife brought an action against Husband for divorce. On the day of trial, the parties reached a settlement agreement. The court held a final hearing, which included extensive discussion on the terms of the agreement. By written order, the Family Court granted Wife a divorce on the grounds of adultery. The decree incorporated the parties' property settlement agreement. The agreement contained the following provisions:

• "Husband agrees to hold harmless and indemnify Wife from any debt personally incurred by him subsequent to the parties' separation.";

• "Wife agrees to hold harmless and indemnify Husband of any debts personally incurred by Donald Heins on behalf of Heins Plumbing, Inc. in the necessary and legitimate operation thereof disclosed by Husband prior to the final hearing...."; and

• "Within thirty (30) days from the date of this Order, Husband agrees to transfer all his right, title, and interest to all assets, both business and personal, including but not limited to, the following:

....

e. The business known as Heins Plumbing, Inc., and all its assets, tangible or intangible, including, but not limited to, its trade name, its vehicles; its tools and equipment; its telephones; its facsimile machine; its pagers; its cellular phones; its inventory, furniture, and fixtures;"

Some five months later, Wife petitioned the court for a contempt order. Wife asserted Husband failed to: (1) indemnify and hold her harmless for $9,477.61 in personal debts he incurred after their separation and satisfied using Heins Plumbing funds; (2) disclose to her, before the final hearing, additional accounts payable totaling $5,646.21;¹ and (3) surrender certain business assets to Wife valued at $4,381.00.

After a hearing, the Family Court issued an order holding Husband in contempt for his willful failure to surrender business assets. As a result, Husband was ordered to pay Wife $4,146.00.² Husband was additionally required to pay Wife $750.00 in attorneys' fees. The court found, however, Husband was under no obligation to repay either the incurred personal expenses or the undisclosed accounts payable. The court reasoned:

[Wife] is an accountant, almost a Certified Public Accountant, who has access to all of the books and records of Heins Plumbing, Inc., and is involved more than most people usually are in accounting, [and] could have discovered any possible errors or discrepancies of the financial disclosures that she asserted to the Court she had at the time of entering into the final consent order and divorce decree.

Wife moved for reconsideration, arguing, inter alia, the Family Court erred in failing to require Husband to be responsible for his personal debts and the undisclosed accounts payable. In his return, Husband denied Wife was entitled to the relief she requested. He requested disbursement of his portion of the funds escrowed from the sale of real property that was required to be sold pursuant to the couple's settlement agreement. Husband did not otherwise seek reconsideration. The Family Court denied Wife's motion. As well, the court reversed its prior decision, sua sponte, which held Husband in contempt. The judge found Wife's action against Husband was based on "regrets" and "dissatisfaction for having entered into [the property settlement] agreement." The court further rescinded its earlier commandment requiring Husband to contribute $750.00 to Wife's attorneys' fees, and instead directed Wife to pay Husband $4113.92 for attorney's fees he accumulated in defense of the reconsideration motion. Husband was awarded the escrowed funds.

Wife again moved for reconsideration. That motion was denied, with the exception of a $170.00 downward adjustment in the award of attorney's fees to Husband. This appeal followed.

STANDARD OF REVIEW

On appeal from the Family Court, this Court has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999). This tribunal, however, is not required to disregard the Family Court's findings. Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Likewise, we are not obligated to ignore the fact the Family Court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996)

(because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to the Family Court's findings where matters of credibility are involved); Terwilliger v. Terwilliger, 298 S.C. 144, 378 S.E.2d 609 (Ct.App.1989) (resolving questions regarding credibility and the weight given to testimony is a function of the Family Court judge who heard the testimony).

ISSUES

I. Did the Family Court err in sua sponte reversing its initial decision that Husband had willfully failed to surrender certain business assets?

II. Did the Family Court err in failing to find Husband liable for the personal expenses he incurred following the couple's separation and satisfied using Heins Plumbing funds?

III. Did the Family Court err in declining to interpret the couple's agreement as requiring Husband to be responsible for business debts he failed to disclose to Wife before the date of the final hearing?

IV. Did the Family Court err in awarding Husband attorney's fees?

LAW/ANALYSIS

I. Husband's Failure to Surrender Business Assets

Wife avers the Family Court erred in sua sponte reversing its initial order following the contempt action that Husband had willfully failed to surrender certain business assets. We agree.

It is well settled that ordinarily a party may not receive relief not contemplated in his pleadings. Loftis v. Loftis, 286 S.C. 12, 331 S.E.2d 372 (Ct.App.1985).

While it is true that pleadings in the family court must be liberally construed, this rule cannot be stretched so as to permit the judge to award relief not contemplated by the pleadings. Due process requires that a litigant be placed on notice of the issues which the court is to consider.

Bass v. Bass, 272 S.C. 177, 180, 249 S.E.2d 905, 906 (1978) (footnote omitted).

The Family Court found Husband in contempt because he did not relinquish $4,146.00 in business assets to Wife. Husband was mandated to pay Wife this amount. Husband did not make a request to alter or amend this decision. Moreover, neither Wife's subsequent Rule 59(e), SCRCP motion nor Husband's reply can be read to have brought this issue before the court for reconsideration.

While much has been written about the propriety of courts ruling on issues included in a Rule 59(e), SCRCP motion, but not raised at trial, a review of cases decided since the enactment of the South Carolina Rules of Civil Procedure reveals little comment on the permissibility of a trial court altering or amending an order on its own initiative. Because Rule 59(e), SCRCP is substantially the federal rule,³ an examination of authorities addressing this dilemma, as it pertains to the federal courts, is appropriate. A leading treatise on federal practice elucidates:

Rule 59(e) is silent on the power of a court to alter or amend a judgment on its own initiative, unlike Rule 59(d), which authorizes the court to grant a new trial on its own initiative. It is unclear whether or not a court has this authority. Arguably, a court should have the power to alter or amend a judgment on its own motion, as long as it acts no later than 10 days after the entry of the judgment. The authorization in Rule 59(d) (and Rule 60(a)) for the court to act on its own initiative has been held to be only a declaratory example of the general power of a court to act on its own initiative in many respects. However, when the court acts on its own initiative, the court must act within 10 days of the entry of judgment.

25 Moore's Federal Practice § 59.33 (Matthew Bender 3d ed.2000) (emphasis added) (footnotes omitted).

In Burnam v. Amoco Container Company, 738 F.2d 1230 (11th Cir.1984), an employee of Amoco filed a complaint against the company, alleging she was a victim of age discrimination. Amoco filed its answer and a motion to dismiss. The employee in turn filed a response to Amoco's motion. Soon thereafter, the federal district court issued an order dismissing the employee's complaint. No additional motions or other documents of any nature were filed by either party after the trial court's order. Nonetheless, 10 days later, the district court, on its own volition, entered another order, explaining that it had not received the employee's response to Amoco's motion to dismiss until after the initial order was entered. The court further stated: "[t]he court has now considered the plaintiff's arguments in opposition to the motion to dismiss and finds them to be without merit. The court's [initial] order... remains the order of this court. The instant order is issued as a clarification of the grounds set forth in the previous order." Id. at 1231. On appeal, the Eleventh Circuit was faced with the question...