Moore v. Smith

• Docket Number: 6018,Appellate Case 2019-002073
• Decision Date: 23 August 2023
• Parties: Caroline Rebecca Moore, Appellant, v. Darren Scott Smith, Respondent.
• Court: South Carolina Court of Appeals

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Caroline Rebecca Moore, Appellant,
v.
Darren Scott Smith, Respondent.

No. 6018

Appellate Case No. 2019-002073

Court of Appeals of South Carolina

August 23, 2023

Submitted March 1, 2023

Appeal From Orangeburg County Angela W. Abstance, Family Court Judge

Amy E. Willbanks, of Strom Law Firm, LLC; Susan Rawls Strom and Michelle B. Matthews, both of Law Office of Susan Rawls Strom; and Whitney Boykin Harrison, of McGowan Hood Felder &Phillips, all of Columbia, for Appellant.

Darren Scott Smith, of Branchville, pro se.

VINSON, J.

Caroline Rebecca Moore (Wife) appeals the family court's order denying her contempt action against Darren Scott Smith (Husband). Wife argues the family court erred in (1) finding a rule to show cause was not the proper avenue to seek redress for Husband's alleged contempt and (2) excluding evidence establishing the factual basis for Husband's alleged contempt. In addition, Wife asks this court to award her attorney's fees and costs. We reverse and remand.

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PROCEDURAL HISTORY

This appeal arose out of an action for separate maintenance and support between Husband and Wife (collectively, the parties). Wife filed a motion for temporary relief. The family court entered a temporary order (the Temporary Order), filed March 25, 2018, on issues related to custody, visitation, and sale of the marital residence. The parties entered into a final custody, support, and property settlement agreement (the final settlement agreement) on September 20, 2018, and the family court entered the final settlement agreement as the final order (the Final Order) the following day. Wife subsequently filed a rule to show cause alleging Husband violated the terms of the Temporary Order and the Final Order.^[1]Following a hearing, the family court denied Wife's contempt action. Wife filed a motion to reconsider, which the family court denied without a hearing.

FACTS

The Temporary Order provided in relevant part,

Both parties shall be restrained from alienating, disposing of or borrowing money, or from injuring, damaging destroying, trading, or otherwise liquidating or decreasing in value any assets of the parties' except as in the ordinary course of business and with the exception of the marital residence as outlined below

It further restrained the parties "from incurring any debt for which the other party would be held responsible, including, but not limited to debt connected with any joint credit cards."

The Final Order provided that "[t]he parties shall strictly comply with the terms of the [final settlement a]greement or risk the contempt powers of the court." Paragraph 12 of the Final Order required:

The parties warrant and represent that they have made a full and complete disclosure of any and all existing indebtedness or liabilities of any nature or description, whether contingent or otherwise, which they have

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incurred at any time during the parties' marriage which has not been paid or satisfied in full prior to the date of th[e final settlement a]greement and that all such indebtedness and liabilities have been expressly addressed and allocated in the terms of [the final settlement a]greement. In the event any undisclosed indebtedness or liability of any nature or description exists, it shall be the sole and exclusive responsibility of the party who incurred that liability or indebtedness to pay the same and to hold the other party harmless and indemnify the other party from any liability thereon, including attorneys' fees and costs.

Under the terms of the Final Order, Wife was "entitled to all net equity from the [marital residence], following payment of the mortgage balance, pro-rata taxes, and agreed upon repair costs."

In her contempt petition, Wife alleged Husband violated the Temporary Order by obtaining a commercial promissory note related to his business (the 2018 Note) in April 2018 that was secured by a mortgage on the marital residence and Husband's business. She further alleged Husband violated the Final Order by failing to disclose this debt on his financial declaration. Wife believed the family court should have held Husband in contempt and ordered him to immediately pay her $21,813.49 to reimburse her for and indemnify her from the debt. In addition, she sought an award of attorney's fees and costs incurred in bringing the contempt action. Wife filed an affidavit of attorney's fees evidencing the charges incurred for time spent in preparing for the prosecution of Wife's rule to show cause for contempt and defending Husband's Rule 60(b), SCRCP motion totaled $9,590.55.

At the rule to show cause hearing, Matt Stokes, a former loan officer at Farmers &Merchants Bank, testified he assisted the parties in their purchase of the marital residence as an investment property in October 2012. Stokes explained the promissory note Husband executed to purchase the marital residence was secured by a mortgage on Husband's business and the marital residence. Stokes stated Husband executed three additional promissory notes on the marital residence for improvements and repairs in February 2013, June 2015, and November 2015. He explained these notes were renewed several times. He confirmed Wife's name was not on any of the notes. His testimony was supported by the admission of the promissory notes into evidence. Stokes clarified that he was not involved in issuing the 2018 Note because he left employment with the bank in December

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2017. However, he stated the 2018 Note represented a "workout" loan of two of the prior notes. On cross-examination, Stokes confirmed he did not speak for the bank and he admitted he was married to Husband's niece.

Wife testified she was unaware of the 2018 Note prior to the sale of the marital residence. When asked whether Husband produced the promissory notes during discovery, Wife testified she subpoenaed information from Farmers &Merchants Bank and the bank produced the promissory notes in response. She also gave contradictory testimony that she knew nothing about the promissory notes or whether she had received them from Husband in discovery. Wife stated the 2018 Note had an outstanding balance of $21,813.49 at the time of the sale of the marital residence. Wife paid the outstanding balance of the 2018 Note under the terms of the sale of the marital residence. Wife moved to enter a payoff letter from the closing on the marital residence into evidence and Husband objected to its admission. The family court sustained Husband's objection.

Husband testified the parties purchased the marital residence in October 2012 as an investment property; he later clarified Wife was not a signatory on the promissory note executed to purchase the residence. He stated the 2018 Note comprised two prior promissory notes for improvements on the marital residence that had been renewed....