Rish v. Rish
| Decision Date | 22 December 2021 |
| Docket Number | Appellate Case No. 2019-000504,Opinion No. 5884 |
| Citation | 435 S.C. 681,868 S.E.2d 719 |
| Parties | Frank James RISH, Sr., Respondent, v. Kathy Cotney RISH, Appellant. |
| Court | South Carolina Court of Appeals |
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) (). "[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).
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) (). "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 , 192 Conn. 447, 472 A.2d 21, 22 (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) (); S.C. Code Ann. § 20-3-130 (2014) ().
In Moseley v. Mosier , our supreme court explained the family court also had jurisdiction over contractual agreements to separate or divorce by stating, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983) ; see S.C. Code Ann. § 20-3-690 (2014) ().
However, our statutory scheme provides a method for parties to remove the issue of future modification of alimony from the family court's jurisdiction. "The parties may agree in writing if properly approved by the court to make the payment of alimony ... nonmodifiable and not subject to subsequent modification by the court." S.C. Code Ann. § 20-3-130(G) (2014). "[O]nce a settlement agreement is approved by the family court, it may be enforced by the court's contempt powers unless the settlement agreement expressly denies the court continuing jurisdiction." Hammer v. Hammer , 399 S.C. 100, 106, 730 S.E.2d 874, 877 (Ct. App. 2012) (citing Moseley , 279 S.C. at 353, 306 S.E.2d at 627 ). In Croom v. Croom , 305 S.C. 158, 159, 406 S.E.2d 381, 382-83 (Ct. App. 1991), this court found the family court could not modify an alimony obligation because the court-adopted alimony agreement provided "the terms and conditions of the agreement and any court order approving it ‘shall not be modifiable by the parties or any court without written consent of the Husband and Wife.’ "
In this case, the 2003 divorce decree did not "expressly deny" the family court continuing jurisdiction. Thus, we look to this court's discussion in Degenhart v. Burriss , 360 S.C. 497, 602 S.E.2d 96 (Ct. App. 2004). In Degenhart , this court reviewed the parties' agreement and final divorce order, which read as follows:
Husband agrees to pay Wife alimony in the amount of $2,500.00 per month payable on the 1st day of each month beginning with the month of September, 1999 for a period of the earlier of seven years or upon the remarriage of Wife.
360 S.C. at 499, 602 S.E.2d at 97. The agreement also provided:
The husband in Degenhart argued Croom did not apply because his agreement lacked language specifically stating that the family court could not modify the agreement. Id. at 501, 602 S.E.2d at 98. The court rejected the husband's argument, finding the following:
We find it is likewise clear and specific in this case how alimony can be modified—by the death of either party or by Wife's remarriage—otherwise, it is non-modifiable. As this court found in Degenhart , no magic language is required as long as the agreement is clear and specific. Accordingly, we find the family court lacked subject matter jurisdiction to terminate alimony in this case. Thus, we vacate the order on appeal as void for lack of subject matter...
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