Landry v. Landry

Decision Date13 May 2020
Docket NumberAppellate Case No. 2019-000843,Opinion No. 27968
Citation843 S.E.2d 491,430 S.C. 153
CourtSouth Carolina Supreme Court
Parties Michael LANDRY, Petitioner, v. Angela LANDRY, Respondent.

Rhett D. Burney, of Rhett Burney, PC, of Simpsonville, and J. Falkner Wilkes, of Greenville, for Petitioner.

Larry Keith Wood, of Larry K. Wood, P.A., of Mauldin, for Respondent.


We granted Michael Landry's petition for a writ of certiorari to determine whether the court of appeals erred in affirming the family court's denial of his motion under Rule 60(a), SCRCP, to correct an alleged clerical error in a final order. We reverse the decision of the court of appeals and remand to the family court for a new hearing.


Michael Landry (Husband) filed an action against Angela Landry (Wife) seeking a divorce on the ground of one year's continuous separation. The parties were scheduled for a contested hearing before the family court on December 6, 2016. On the morning of trial, the parties drafted and signed a handwritten agreement resolving all of the issues between them except for the divorce. Thereafter, the parties informed the court they had reached a final agreement, marked the agreement as Plaintiff's Exhibit 1, and submitted it to the court for approval. The agreement, which consisted of three pages and seventeen paragraphs, determined the issues of alimony, equitable distribution of property, child support, custody and visitation of the minor child, and attorney's fees. The terms of the agreement were not read into the record; instead, the court questioned both parties about their general understanding of the agreement and whether they entered into it freely and voluntarily. Satisfied with the parties' responses, the court stated it would approve the agreement and make it the final order of the court.

As requested by the family court, Husband's attorney drafted the order, incorporating the handwritten agreement by typing its terms into the final order. After sending it to opposing counsel for his approval, Husband submitted the order to the family court judge, who signed it on January 18, 2017. Nine weeks later, Husband noticed the order contained a provision requiring him to pay Wife one-half of his military retirement benefits—the focal point of this appeal. Specifically, paragraph 2 of the final order, which was not part of the parties' handwritten agreement, stated: "Husband shall pay wife one-half of his Airforce retirement[.] The Defendant will as soon as possible make application for her portion of the benefits to be paid directly to her relieving him of any obligation to continue to pay her portion out of his funds." However, the handwritten agreement did mention Husband's military retirement in paragraph 6, which stated: "The husband's alimony payments, child support payments, and ½ of military retirement for December 2016 shall be paid by husband to wife once the TSP1 is divided by QDRO. The amount is $2,923.00." Nevertheless, believing the addition of paragraph 2 to be a mistake—albeit one made by his own attorney in drafting the order—Husband moved for relief under Rule 60(a), SCRCP, based upon a clerical mistake "arising from oversight or omission."

The court held a hearing on the motion. Noticing that a provision in the handwritten agreement referenced Husband's military retirement benefits, the court questioned Husband's counsel as follows: "Well, wait a minute, Paragraph 6 says, ‘The husband's alimony payments, child support payments, and one half of the military retirement.’ It says that doesn't it?" Husband's counsel answered affirmatively. Regarding paragraph 2 at issue, the court asked Husband's counsel, "Well, why in the world would you add that if, y'all drafted it, why did y'all add that if it wasn't your agreement?" Husband's counsel replied, "I don't know why we put that in there. All I can tell you, I know why we put the agreement in writing. That was so there would not be any misunderstanding. Both parties signed that. We presented that to the court. The only reason we typed it from that point on was because it looked neater." Wife's counsel opposed the motion, arguing the parties did in fact agree to share Husband's military retirement benefits.

Thereafter, the court denied the motion, finding Husband should have requested relief pursuant to Rule 59(e), SCRCP, rather than through Rule 60(a), SCRCP, and accordingly, the court lacked jurisdiction to consider the merits of the motion. Alternatively, the court found the parties had agreed that one-half of Husband's military retirement benefits would be paid to Wife. Husband appealed to the court of appeals, which affirmed the family court's decision in an unpublished per curiam opinion pursuant to Rule 220(b), SCACR. Husband petitioned for a writ of certiorari, which this Court granted.


Did the court of appeals err in affirming the family court's order denying Husband's motion under Rule 60(a), SCRCP, to correct the final order by removing a provision that was allegedly included by mistake and to which the parties purportedly did not agree?


On appeal, this Court reviews the family court's legal and factual issues de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). Therefore, in appeals taken from the family court, the appellate court may find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis , 392 S.C. 381, 384, 709 S.E.2d 650, 652 (2011). However, a family court's evidentiary or procedural rulings will not be reversed on appeal absent an abuse of discretion. Stoney , 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2. In reviewing decisions to grant or deny motions under Rule 60, SCRCP, the abuse of discretion standard applies. See Ex Parte Carter , 422 S.C. 623, 631, 813 S.E.2d 686, 690 (2018). An abuse of discretion occurs when the ruling is controlled by an error of law, or when based on factual conclusions, is without evidentiary support. McKinney v. Pedery , 413 S.C. 475, 482, 776 S.E.2d 566, 570 (2015).


Husband contends both the family court and the court of appeals erred in rejecting Rule 60(a) as a vehicle for correcting the order to conform it to the parties' original intent. Conversely, Wife asserts Rule 60(a) is inapplicable because Husband seeks to change the scope of the judgment and he forfeited his ability to challenge the order by failing to file a Rule 59(e) motion. We disagree that Rule 59(e) afforded the only avenue of relief. However, because the agreement is ambiguous as to whether the parties actually intended to permanently divide Husband's military retirement benefits, and that fact was never clarified during the court's initial approval of the agreement, we decline to adopt Husband's position at this posture and instead remand to the family court for that determination.2

We begin by addressing whether the family court erred in finding that it lacked jurisdiction to consider the substance of Husband's motion because he was procedurally required to seek relief under Rule 59(e) rather than Rule 60. It is well-established that a Rule 59(e) motion to alter or amend a judgment must be served within ten days from receiving notice of entry of the order. Rule 59(e), SCRCP ; Overland, Inc. v. Nance , 423 S.C. 253, 256-57, 815 S.E.2d 431, 433 (2018). In contrast, Rule 60 applies to specific contexts and does not impose a ten-day jurisdictional requirement. Particularly relevant is Rule 60(a), SCRCP, which enables the court on its own initiative or on a party's motion to correct clerical mistakes "arising from oversight or omission." However, not all mistakes may be corrected under this Rule, as the United States Court of Appeals for the Fourth Circuit has explained:

The basic distinction between clerical mistakes and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of blunders in execution whereas the latter consist of instances where the court changes its mind , either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination.

Sartin v. McNair Law Firm , 756 F.3d 259, 265 (4th Cir. 2014) (quoting Rhodes v. Hartford Fire Ins. Co. , 548 Fed.Appx. 857, 859-60 (4th Cir. 2013) (per curiam)). Instead, for Rule 60(a) to apply, the "mistake" must be one where "there is an inconsistency between the text of an order or judgment and the ... court's intent when it entered the order or judgment," which "includes an unintended ambiguity that obfuscates the court's original intent." Id . at 265-66.

While the family court has authority to modify certain orders, including those involving a child or ongoing child support and alimony payments upon a showing of changed circumstances, it may not modify an order pertaining to equitable property division. See Miles v. Miles , 393 S.C. 111, 120, 711 S.E.2d 880, 885 (2011) (holding spousal support may be modified where requesting party demonstrates a substantial change in circumstances); Moesley v. Moesley , 263 S.C. 1, 4, 207 S.E.2d 403, 404 (1974) (holding divorce decree may be modified with respect to custody and child support); S.C. Code Ann. § 20-3-620(C) (2014) ("The [family] court's order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal."). Further, it is "exceedingly clear that the family court does not have the authority to modify court ordered property divisions." Simpson v. Simpson , 404 S.C. 563, 571, 746 S.E.2d 54, 58-59 (Ct. App. 2013). The only exception to this general rule is when Rule 60 is implicated.

Specifically, Rule 60(a) provides a mechanism to modify an order that may be non-modifiable under these general principles....

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