Rish v. Rish, 5884

CourtCourt of Appeals of South Carolina
Writing for the CourtTHOMAS, J
Docket Number5884,Appellate Case 2019-000504
PartiesFrank James Rish, Sr., Respondent, v. Kathy Cotney Rish, Appellant.
Decision Date22 December 2021

Frank James Rish, Sr., Respondent,

Kathy Cotney Rish, Appellant.

No. 5884

Appellate Case No. 2019-000504

Court of Appeals of South Carolina

December 22, 2021

Submitted December 1, 2021

Appeal From Newberry County Joseph C. Smithdeal, Family Court Judge

Leslie Ragsdale Fisk, of Spartanburg, and J. Edwin McDonnell, of Campobello, both for Appellant.

Christopher Paul Thompson, of Mayo, and Kenneth Philip Shabel, of Kennedy &Brannon, P.A., of Spartanburg, both for Respondent.


Frank James Rish, Sr. (Husband) filed this action in family court against Kathy Cotney Rish (Wife) seeking to terminate or modify alimony. Wife appeals the family court's order terminating alimony, arguing the court erred in finding (1) the parties' 2003 divorce decree did not divest the court of the power to modify alimony, (2) Wife waived the court's lack of jurisdiction by failing to appeal a 2011 modification of alimony order, and (3) the court erred in denying her


motion to reconsider pursuant to Rule 59(e), SCRCP, or set aside as void pursuant to Rule 60(b)(4), SCRCP. We vacate in part and affirm in part.


The parties were married in 1972 and had two emancipated children at the time of their divorce. The divorce decree, dated March 28, 2003, incorporated the parties' agreement and required Husband to pay alimony of $650 per month "as periodic alimony which is non-modifiable and will cease only at the death of [Wife] or [Husband] or the remarriage of [Wife]."

By order dated June 7, 2011, the court reduced Husband's alimony obligation to $550 per month. Wife did not appeal the 2011 order. In 2016, Husband filed this action to modify and/or terminate alimony. At a hearing held April 16, 2018, Wife argued the divorce decree made alimony non-modifiable. The court found the 2011 order modifying alimony was "law of the case" on the issue of modification due to Wife's failure to appeal the order. By order filed May 4, 2018, the court found Husband declared monthly income of $1, 483 and Wife declared monthly income of $1, 709. The court also found both parties' declarations were lacking in various areas, and both parties' testified their health had declined, and they had received inheritances since the previous order. The court concluded Husband's financial situation had substantially declined; thus, it terminated alimony.

Wife moved for reconsideration under Rule 59(e), SCRCP, and to void the order under Rule 60(b)(4), SCRCP, arguing the 2011 modification order was void because the divorce decree mandated alimony was non-modifiable except upon either party's death or Wife's remarriage. Wife argued the order on appeal was likewise void for lack of subject matter jurisdiction. Husband filed a return, arguing that because Wife failed to appeal or file a motion to reconsider the 2011 order, Wife was barred from raising the court's subject matter jurisdiction by "laches, estoppel, [and] undue prejudice." Husband also argued the court had jurisdiction to modify alimony.

After a hearing, the court denied Wife's motion by order dated August 14, 2019. The court found it had continuing jurisdiction to modify the divorce decree because the decree did not "unambiguously deny the family court jurisdiction to modify or terminate the alimony obligation." The court further found "[t]he motion for reconsideration [as to Rule 60(b)(4), SCRCP, ] was not filed within a reasonable time and is therefore subject to the equitable doctrines of estoppel and laches." Thus, the court denied the motion. This appeal followed.



"The question of subject matter jurisdiction is a question of law for the court." Hammer v. Hammer, 399 S.C. 100, 104-05, 730 S.E.2d 874, 876 (Ct. App. 2012) (quoting Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App. 2009)). "In appeals from the family court, [the appellate court] reviews factual and legal issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see Singh v. Singh, 434 S.C. 223, 228, 863 S.E.2d 330, 332-33 (2021) (applying a de novo standard of review to the denial of Rule 60(b), SCRCP, motions raising the legal question of the family court's authority to delegate its jurisdiction to an arbitrator). "[A] reviewing court is free to decide questions of law with no particular deference to the trial court." Proctor v. Steedley, 398 S.C. 561, 573, 730 S.E.2d 357, 363 (Ct. App. 2012) (footnote omitted).


Termination of Alimony

Wife maintains the family court erred in terminating alimony because it lacked subject matter jurisdiction to modify or terminate alimony under the 2003 divorce decree. We agree.

The divorce decree stated the periodic alimony would be "non-modifiable and will cease only at the death of [Wife] or [Husband] or the remarriage of [Wife]." As noted by Wife, any action taken by the family court with regard to agreements over which it lacks subject matter jurisdiction is void. See Gainey v. Gainey, 382 S.C. 414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009) ("A judgment of a court without subject matter jurisdiction is void ....). "Subject matter jurisdiction is 'the power to hear and determine cases of the general class to which the proceedings in question belong.'" Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) (quoting Bank of Babylon v. Quirk, 472 A.2d 21, 22 (Conn. 1984)). The family court derives its subject matter jurisdiction over divorces, including alimony, from our legislature. S.C. Code Ann. § 63-3-530(A)(2)&(14) (2010) ("The family court has exclusive jurisdiction . . . to hear and determine actions for divorce . . . [and] to order support of a spouse ...."); S.C. Code Ann. § 20-3-130 (2014) (providing the family court with the authority to award alimony).


In Moseley v. Mosier, our supreme court explained the family court also had jurisdiction over contractual agreements to separate or divorce by stating, "[J]urisdiction for all domestic matters, whether by decree or by agreement, will vest in the family court. In all decrees entered after this decision, the parties may contract concerning their property settlement and alimony, but the submitted agreement must be approved by the family court." 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983); see S.C. Code Ann. § 20-3-690 (2014) ("The family courts of this State have subject matter jurisdiction over all contracts relating to property which is involved in a proceeding under this article and over the construction and enforcement of those...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT