Miller v. Miller

• Citation: 652 S.E.2d 754
• Decision Date: 05 October 2007
• Docket Number: No. 4299.,4299.
• Parties: Mary E. MILLER, Respondent v. Burl E. MILLER, Jr., Appellant.
• Court: Court of Appeals of South Carolina

652 S.E.2d 754

Mary E. MILLER, Respondent v. Burl E. MILLER, Jr., Appellant.

No. 4299.

Court of Appeals of South Carolina.

Submitted September 1, 2007.

Decided October 5, 2007.

Burl E. Miller, Jr., of Savannah, GA, Appellant Pro Se.

Mary E. Miller of Greenville, Respondent Pro Se.

ANDERSON, J.:

Burl E. Miller, Jr. (Husband) contends the family court erred by: (1) holding him in contempt for barring Respondent's (Wife's) entry into the marital home to retrieve property, removing property from the marital home, and secreting the property in another location; (2) requiring the return of certain property to Wife; (3) failing to find Wife in contempt; and (4) ordering him to pay a portion of Wife's attorney's fees. We affirm as modified.¹

FACTUAL/PROCEDURAL BACKGROUND

Wife initiated an action for separate support and maintenance, equitable division of marital property, and other related relief in August of 2004. Husband and Wife reached an agreement resolving all issues on a temporary basis. The family court approved the parties' agreement as the Temporary Order of the Court, finding "[b]oth parties expressed their opinion that they believed the [temporary] agreement to be in their best interests . . . . The parties further affirmed their understanding that their agreement will be set forth in a Temporary Order of this Court, and as such, that the agreement is enforceable by the contempt powers of this Court."

The Temporary Order provided, in pertinent part, that:

1. The former marital home will be placed on the market for sale, with the [Husband] making necessary repairs to the master bathroom, the kitchen ceiling, and the fountain in the front yard. [Husband] will replace the original locks on the doors and replace the doorknobs.

2. [Husband] will make the monthly mortgage payment on the home, in the approximate amount of $2,200.00 and [Wife] will pay for the lawn maintenance. The parties will split the utility bills for the home while it is on the market . . . .

3. Each party will keep the vehicle in his or her respective possession and pay the expenses of said vehicles. The parties will each obtain insurance on the vehicles in his or her possession, and neither will list the other as a driver on the others' automobile insurance policy.

. . .

8. [Wife] will remove all remaining property from the former residence, to prepare it for sale, and she will store such property at her residence.

9. The parties will be mutually restrained from liquidating or transferring any marital assets or property of any type to other parties, hiding or secreting said property and/or assets and/or removing money from any bank accounts other than those necessary to pay the monthly household bills and expenses.

Wife vacated the marital home shortly after the parties separated in order to prepare the home for sale. Husband lived with his parents when the parties separated but moved back into the home in October, 2004, and remained there until the end of November, 2004.

On several occasions Wife attempted to gain access to the marital home to retrieve remaining property as directed by the Temporary Order. Wife testified Husband prevented her from entering the marital home. Witnesses Sandy Weaver and Genie Shealy generally corroborated Wife's testimony that Husband had not allowed her entry into the home after several attempts. Wife averred Husband changed the locks on the doors without her knowledge or consent, making entry impossible.

On one occasion Wife pre-arranged a time with Husband to remove the remaining items from the home. She rented a U-Haul truck and enlisted the help of several family members. Wife claimed Husband had one week's notice of this scheduled removal. However, on the day Wife and her family planned to secure the property, Husband's friend, apparently acting on Husband's behalf, barred them from entering the home. When wife eventually entered the home on a later date, she found the remaining property she was to retrieve pursuant to the Temporary Order, including a vintage Ford Mustang, had been removed.

On cross-examination Wife admitted she had alternative access to the home through the garage door. However, Wife's attorney had advised her not to enter the home on her own while Husband was living there.

Husband denied he hindered Wife's entry into the home, maintaining he prevented her entry at the originally appointed time only because he had to go out of town and needed to reschedule. He claimed she could have arranged to enter at a later time. Husband acknowledged, however, that he had removed items, including the Ford Mustang, from the marital home and was currently storing property in a another location.

Wife filed an initial Rule to Show Cause motion on or about December 7, 2004, charging, inter alia, that Husband had refused to allow Wife access to the marital home to retrieve remaining property as ordered by the Court. Wife filed an Amended Contempt Complaint on January 27, 2005, for additional violations of the Temporary Order, alleging Husband (1) refused to cooperate in the preparation and sale of the marital home, (2) changed the locks on the doors of the marital home, (3) prevented her from retrieving her personal belongings, and (4) moved the majority of her belongings to another state without Wife's knowledge or consent.

Husband filed a Rule to Show Cause, Answer and Counterclaim against Wife on February 9, 2005, complaining that Wife violated the Temporary Order by failing to (1) return business records and computer accessories, (2) pay for lawn maintenance, and (3) remove and store at her residence the remaining property in the marital home.

The family court found Husband in contempt for barring Wife from entering the marital home to retrieve remaining property and ordered him to return the Ford Mustang and all its parts to Wife within thirty (30) days of the hearing.² Wife was ordered to return business records and computer accessories to Husband within thirty (30) days.

Husband filed a Motion for Reconsideration. In an Amended Order dated March 31, 2005, noting that neither party proved all the allegations set forth in his or her Contempt Complaint, the family court held:

6. It is explicit and unequivocal that [Husband] is in willful contempt of this Court for refusing to allow [Wife] to retrieve her personal belongings from the marital home, for removing the belongings from the marital home, and from South Carolina, and for secreting the belongings in or near Savannah, Georgia, without [Wife]'s knowledge or consent which he had no right to do. This has been proven to a clear and convincing standard of proof. The [temporary] order clearly allows and required the [Wife] to remove all marital property from the marital home. [Husband] should, and hereby shall, return [Wife]'s property to her, at his own expense, within thirty (30) days of this Order. This includes the Ford Mustang automobile and all parts, at an agreed upon location and time and in the condition as when removed. Should [Husband] not return the property within that time, he shall immediately begin serving a sentence of twelve (12) months incarceration in the Greenville County Detention Center. [Husband] to be released by the return of such property. The act of removal and the act of barring the wife is criminal contempt. These acts have been proven beyond a reasonable doubt.

. . .

8. The [Husband] did change the locks on the doors and occupy the marital home, thereby making it impossible for the wife to enter the home. He or his friend actually barred the [Wife]. The Court further finds that [Wife] did not enter the marital home to retrieve her personal belongings, as set forth in the Temporary Order, due to the [Husband]'s preventing [Wife] from doing so. Therefore, the Court finds that [Wife] is not in contempt on such charges.

ISSUES

I. Did the family court err and abuse its discretion in finding Husband in contempt for refusing to allow Wife to retrieve remaining property from the marital home, removing the property from the marital home, and secreting the property in or near Savannah, Georgia?

II. Did the family court err in finding Husband in criminal contempt?

III. Did the family court err in ordering Husband to return the Ford Mustang and all parts to Wife?

IV. Did the family court err in finding Wife was not in contempt for failure to remove and store remaining property from the marital home because Husband prevented her from entering the home to retrieve the property?

V. Did the family court err and abuse its discretion in ordering Husband to pay two-thirds (2/3) of Wife's attorney's fees and costs in the amount of $5,321.63?

Husband contends the family court erred in not finding Wife in contempt for failure to pay for lawn maintenance. The family court did not rule on this issue at the hearing or in the Amended Order, and Husband neglected to raise it in his Motion for Reconsideration. Therefore, this issue is not preserved and we decline to address it on review.

STANDARD OF REVIEW

An appellate court should reverse a decision regarding contempt "only if it is without evidentiary support or the trial judge has abused his discretion." Durlach v. Durlach, 359 S.C. 64, 70, 596 S.E.2d 908, 912 (2004) (quoting Stone v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840 (1988)); see also Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989) ("A finding of contempt rests within the sound discretion of the trial judge."). "An abuse of discretion occurs either when the court is controlled by some error of law or where the order, based upon findings of fact, lacks evidentiary support." Townsend v. Townsend, 356 S.C. 70, 73, 587 S.E.2d 118, 119 (Ct.App.2003).

"A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without...