Kilcawley v. Kilcawley
| Decision Date | 24 January 1994 |
| Docket Number | No. 2120,2120 |
| Citation | 440 S.E.2d 892,312 S.C. 425 |
| Parties | Eugene T. KILCAWLEY, Respondent, v. Heidi S. KILCAWLEY, Appellant. |
| Court | South Carolina Court of Appeals |
Lorraine Callison Watson, West Columbia, for appellant.
Carl A. Ellsworth, of Seigler, Earle & Ellsworth, Columbia, for respondent.
In this action for attorney fees brought pursuant to the South Carolina Frivolous Civil Proceedings Sanctions Act, S.C.Code Ann. §§ 15-36-10 to -50 (Supp.1992), Heidi S. Kilcawley appeals from a family court order directing her to pay attorney fees to Eugene T. Kilcawley. We affirm. 1
The parties divorced in 1991. In 1992, Mrs. Kilcawley moved to vacate the divorce decree on three grounds. First, she claimed she had been under the influence of prescription drugs when she consented to the settlement. Second, she asserted Mr. Kilcawley, prior to the final divorce, used $8,000 of undisclosed retirement funds to help his current wife purchase a house. Third, she alleged she mistakenly believed that she would be entitled to two years of post-divorce military health benefits.
Mrs. Kilcawley's counsel filed the motion to reopen without conducting any investigation regarding Mrs. Kilcawley's claims. 2 After counsel investigated her claims, Mrs. Kilcawley decided to dismiss her motion to reopen. Mr. Kilcawley refused to consent to the dismissal unless Mrs. Kilcawley paid him $1000 in attorney fees. Mrs. Kilcawley asserted she could not pay that amount and moved to dismiss the suit. In response, Mr. Kilcawley moved for attorney fees under S.C.Code Ann. § 15-36-30 (Supp.1992). The family court thereafter dismissed the action and awarded Mr. Kilcawley attorney fees.
The determination of whether statutory attorney fees should be awarded is treated as one in equity. See Brown v. State Farm Mut. Ins. Co., 275 S.C. 276, 269 S.E.2d 769 (1980) (). In reviewing the award in issue, therefore, this court may take its own view of the preponderance of the evidence. Wallace v. Milliken & Co., 305 S.C. 118, 406 S.E.2d 358 (1991). Even where this court may find facts in accordance with its own view of the preponderance of the evidence, we are not required to disregard the factual findings of the trial judge who saw and heard the witnesses and was in a better position to judge their credibility and demeanor. Godfrey v. Heller, --- S.C. ----, 429 S.E.2d 859 (Ct.App.1993).
The South Carolina Frivolous Civil Proceedings Sanctions Act provides:
Any person who takes part in the procurement, initiation, continuation, or defense of any civil proceeding is subject to being assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:
(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and
(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs.
S.C.Code Ann. § 15-36-10 (Supp.1992).
The act also states a person has acted with a proper purpose where the person reasonably believes the existence of the underlying facts of the claim and
(1) reasonably believes that under those facts his claim may be valid under the existing or developing law; or (2) relies upon the advice of counsel, sought in good faith and given after full disclosure of all facts within the knowledge and information which may be relevant to the cause of action; or
(3) believes, as an attorney of record, in good faith that his procurement, initiation, continuation, or defense of a civil...
To continue reading
Request your trial
-
Hardaway Concrete v. Hall Contracting Corp.
..."The determination of whether statutory attorney fees should be awarded is treated as one in equity." Kilcawley v. Kilcawley, 312 S.C. 425, 427, 440 S.E.2d 892, 893 (Ct.App. 1994). Accordingly, in reviewing the award, we may take our own view of the preponderance of the evidence. Kelly v. P......
-
Father v. DEPT OF SOCIAL SERVICES
...is a matter in equity, entitling the appellate court to take its own view of the preponderance of the evidence. Kilcawley v. Kilcawley, 312 S.C. 425, 440 S.E.2d 892 (Ct.App.1994) cited with approval in Hanahan v. Simpson, supra. Father argues we should substitute an "abuse of discretion" st......
-
Blejski v. Blejski
...both the negotiations and the hearing when she told the judge she voluntarily assented to the agreement. Cf. Kilcawley v. Kilcawley, 312 S.C. 425, 440 S.E.2d 892 (Ct.App.1994) (discounting a wife's claim that she was under the influence of drugs when assenting to a marital settlement by not......
-
Pool v. Pool, 2451
...was frivolous is supported by the evidence, and provides an independent basis for affirming the court's award. Kilcawley v. Kilcawley, 312 S.C. 425, 440 S.E.2d 892 (Ct.App.1994); Rish v. Rish, 296 S.C. 14, 370 S.E.2d 102 We affirm the court's apportionment of forty percent (40%) of the mari......
-
Family Court Approval of a Marital Settlement Agreement Over One Party's Objection
...App. April 1, 2009). [20] See Harrison v. Beuilacqua, 354 S.C. 129, 139-40, 580 S.E.2d 109, 114-15 (2003). [21] Kilcawley v. Kilcawley, 312 S.C. 425, 428, 440 S.E.2d 892, 894 (Ct. App. 1994). [22] Rule 8, SCADRR. [23] Rule 8(a)(4), SCADRR. [24] Rule 6(g), SCADRR. [25] Davis v. Greenwood Sch......