Lanier v. Lanier

Decision Date21 March 2005
Docket NumberNo. 3966.,3966.
Citation612 S.E.2d 456,364 S.C. 211
CourtSouth Carolina Supreme Court
PartiesAnna H. LANIER, Appellant, v. Robert F. LANIER, Jr., Respondent.

Donald Bruce Clark and Mary Ann Hall, both of Charleston, for Appellant.

Marvin I. Oberman and Paul E. Tinkler, both of Charleston, for Respondent.


Anna H. Lanier (Wife) and Robert F. Lanier (Husband) entered into a divorce settlement agreement which the family court incorporated into its final order of divorce. Wife appeals the family court's denial of her Rule 60(b)(2), SCRCP motion for relief from the final order. We affirm.


Husband and Wife, who had been married since 1984, were divorced in March of 2003. Wife alleges that prior to their marriage, the parties entered into an antenuptial agreement (the agreement) in which Husband released his marital rights in Wife's property if they divorced. During the course of the marriage, the agreement was lost. Wife searched for the document when she initiated the proceeding. She checked with Husband, her bank (where the document had been stored), and her financial advisor, but her search was not successful. However, several months after the family court entered its final order, Wife found a copy of the agreement folded in a greeting card in her desk drawer.

The content of the agreement was not pled in the original action for divorce. After she found the agreement, Wife filed a motion for relief from the judgment pursuant to Rule 60(b)(2), SCRCP. The family court heard the matter and denied the motion. On appeal, Wife argues that the requested relief should have been granted because the agreement qualified as newly discovered evidence. Additionally, she disputes the family court's award of attorney's fees.


In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Moghaddassi v. Moghaddassi, Op. No. 3932, 364 S.C. 182, 612 S.E.2d 707, 2005 WL 196558 (S.C. Ct.App. filed January 31, 2005) (Shearouse Adv. Sh. No. 6 at 48); Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598 (Ct.App.2004) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992)). However, this broad scope of review does not require us to disregard the family court's findings. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Nor must we 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. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996) (noting that 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). An appellate court "should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court." Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). Our broad scope of review does not relieve appellant of her burden to convince this Court the family court committed error. Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).

A party seeking to set aside a judgment pursuant to Rule 60(b) has the burden of presenting evidence entitling him to the requested relief. Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 590 S.E.2d 502 (Ct.App.2003). "The decision to grant or deny a motion under Rule 60(b) is within the sound discretion of the trial court." Bowman v. Bowman, 357 S.C. 146, 151, 591 S.E.2d 654, 656 (Ct.App.2004) (citing Coleman v. Dunlap, 306 S.C. 491, 413 S.E.2d 15 (1992)); see also Saro Invs. v. Ocean Holiday Pship., 314 S.C. 116, 441 S.E.2d 835 (Ct.App.1994) (noting that Rule 60(b) motions are addressed to the discretion of the court and appellate review is limited to determining whether the trial court abused its discretion). Review is thus limited to determining whether the family court abused its discretion in granting or denying the motion. Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 18, 594 S.E.2d 478, 482 (2004); Bowman at 151, 591 S.E.2d at 656.

I. Rule 60(b)(2) Motion

Wife argues she is entitled to relief from the judgment under Rule 60(b)(2). We disagree.

A. Propriety of Attacking a Consent Judgment Through a Rule 60(b) Motion

As a preliminary matter, we address whether a consent judgment may be attacked via a Rule 60(b) motion. Husband argues that consent orders are "binding and conclusive and cannot be attacked by the parties either on direct appeal or in a collateral proceeding." See Johnson v. Johnson, 310 S.C. 44, 46, 425 S.E.2d 46, 48 (Ct.App.1992). Although this is the general rule, consent judgments are subject to attack in particular circumstances, including for the reasons specified in Rule 60(b). See Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 18 n. 3, 594 S.E.2d 478, 482 n. 3 (2004) ("[E]ven consent judgments are subject to attack under particular circumstances."). Indeed, the Johnson court ultimately granted relief under Rule 60(b)(5). Id.; Johnson, 310 S.C. at 47, 425 S.E.2d at 48. Additionally, consent orders could be vacated under the statutory predecessor to Rule 60. See Lord Jeff Knitting Co., Inc. v. Mills, 281 S.C. 374, 376, 315 S.E.2d 377, 378 (Ct.App.1984) (acknowledging availability of relief but refusing it on other grounds). Therefore, we find no error in the family court's decision to consider Wife's motion on the merits.

B. Rule 60(b)(2)

The South Carolina Rules of Civil Procedure apply in family court when no family court rule provides otherwise. Rule 2, SCRFC. Rule 60(b), SCRCP, reads:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:


(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);


This rule is substantially the same as the federal rule. See Rule 60, SCRCP, note ¶ 1; Thynes v. Lloyd, 294 S.C. 152, 363 S.E.2d 122 (Ct.App.1987).

C. Elements for Obtaining a New Trial Under Rule 60(b)(2)

To obtain a new trial based on newly discovered evidence, a movant must establish that the newly discovered evidence:

(1) will probably change the result if a new trial is granted; (2) has been discovered since the trial; (3) could not have been discovered before the trial; (4) is material to the issue; and (5) is not merely cumulative or impeaching.

James F. Flanagan, South Carolina Civil Procedure 484 (2nd ed.1996) (citing Johnston v. Belk-McKnight Co., 188 S.C. 149, 198 S.E. 395; McCabe v. Sloan, 184 S.C. 158, 191 S.E. 905 (1937)); see Lans v. Gateway 2000, Inc., 110 F.Supp.2d 1 (D.D.C.2000); Raymond v. Raymond Corp., 938 F.2d 1518 (1st Cir.1991); Duffy v. Clippinger, 857 F.2d 877 (1st Cir.1988); Lloyd v. Gill, 406 F.2d 585 (5th Cir.1969); Johnson v. United States, 32 F.2d 127 (8th Cir.1929); Kettenbach v. Demoulas, 901 F.Supp. 486 (D.Mass.1995); see also Wright & Miller, 11 Fed. Prac. & Proc. Civ.2d § 2859 (1995) (noting the standard applied to newly discovered evidence is the same for Rule 59(b) and Rule 60(b)(2), and discussing the elements); 12 Moore's Federal Practice § 60.42[2] (Matthew Bender 3rd ed.) (discussing various elements tests for Rule 60(b)(2)).

D. Newly Discovered Evidence

First, we note that courts have found evidence is not newly discovered evidence for the purposes of Rule 60(b)(2) where the evidence was (1) known to the party at the time of trial, and (2) in the party's possession.

1. Known to the Party at the Time of Trial

In Lans v. Gateway 2000, Inc., 110 F.Supp.2d 1 (D.D.C.2000), the movant, Lans, made a Rule 60(b)(2) motion based on a "Clarification-Contract" which he found after trial. Lans knew the document existed prior to trial, but was unable to locate it. The Lans court stated:

Lans even admits that he had knowledge of the Clarification-Contract prior to the Court's grant of summary judgment to Gateway.... [T]he Court cannot conceive of why Lans failed to notify the Court of the potential existence of the Clarification-Contract and request more time to search for it.... Rule 60(b)(2) was not designed to afford parties the opportunity to revisit choices made in the thick of litigation. Since Lans knew of the Clarification-Contract's existence, he cannot now claim that it is newly discovered evidence.

Id. at 5. See also Andrews Distrib. Co. v. Oak Square at Gatlinburg, Inc., 757 S.W.2d 663, 667 (Tenn.1988) (finding that when both parties know an item of evidence existed before trial, but the evidence is simply lost or misplaced, finding it afterward does not transform it into newly discovered evidence), overruled on other grounds by Spence v. Allstate Ins. Co., 883 S.W.2d 586 (Tenn.1994).

We find the instant case analogous to Lans. Wife was well aware the agreement existed; yet, she did not plead its contents or otherwise inform the court of the document's potential application. Instead, she chose to initiate this action and negotiate a property settlement without asserting any potential rights which the agreement might have afforded her. Consequently, the agreement was not newly discovered.

2. In the Possession of the Party

The Lans court addressed whether evidence can be newly discovered when it is in the movant's possession. The court observed that "the Clarification-Contract was in Lans's possession, even if he could not recall its physical location." Id. Accordingly, the evidence was deemed not newly discovered:

[T]his Court has previously held that evidence "in the...

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