Shaw v. Shaw

• Decision Date: 30 June 2010
• Docket Number: 2010-UP-344
• Court: South Carolina Court of Appeals
• Parties: Cupid Shaw, Respondent, v. Anna Lee Shaw and Jerome Shaw, Defendants Of whom Anna Lee Shaw Is Appellant.

Cupid Shaw, Respondent, v. Anna Lee Shaw and Jerome Shaw, Defendants Of whom Anna Lee Shaw Is Appellant.

No. 2010-UP-344

Court of Appeals of South Carolina

June 30, 2010

UNPUBLISHED OPINION

Submitted May 3, 2010.

Appeal From Berkeley County, Aphrodite K. Konduros for Billy A Tunstall, Jr. and Billy A. Tunstall, Jr., Family Court Judge

Deborah K. Lewis, of Charleston, for Appellant.

John B. Williams, of Moncks Corner, for Respondent.

PER CURIAM

In this family court case, Anna Lee Shaw (Wife) appeals from an order of Judge Tunstall granting Cupid Shaw (Husband) sole authority to conduct listing arrangements, negotiations, and the final sale of certain jointly held property, free of interference or control by Wife, and an order of Judge Konduros, on behalf of Judge Tunstall, denying Wife's motions pursuant to Rules 59 and 60, SCRCP. Wife contends (1) Judge Tunstall erred in proceeding with a hearing when another judge had retained jurisdiction of the matter and no written order was entered by the prior judge relinquishing jurisdiction; (2) Judge Tunstall erred and abused his discretion by issuing an order on Husband's rule to show cause which effectively modified the underlying order and granted new relief not requested by Husband; (3) Judge Tunstall erred in proceeding with the hearing on March 17 2008 knowing that the defendant Jerome Shaw had not been notified of the hearing or dismissed from the action as Jerome was a necessary party to the case; (4) the underlying orders upon which Judge Tunstall based his ruling were without subject matter jurisdiction or were ambiguous and unenforceable; (5) Judge Tunstall was barred by equity from enforcing the order of Judge Cate filed April 26, 2008 and was it an abuse of discretion by Judge Tunstall to enforce the order. We affirm. ^[1]

1. We decline to rule on whether (1) Judge Tunstall erred in proceeding with a hearing when another judge had retained jurisdiction of the matter and no written order was entered by the prior judge relinquishing jurisdiction; (2) Judge Tunstall erred in proceeding with the hearing on March 17 2008 knowing that the defendant Jerome Shaw had not been notified of the hearing or dismissed from the action as Jerome was a necessary party to the case; and (3) Judge Tunstall was barred by equity from enforcing the order of Judge Cate filed April 26, 2008 and whether it was an abuse of discretion by Judge Tunstall to enforce the order. These issues clearly are not preserved for our review. Payne v. Payne, 382 S.C. 62, 70, 674 S.E.2d 515, 519 (Ct. App. 2009) ("To be preserved for appellate review, an issue must have been raised to and ruled upon by the trial judge. Issues not raised and ruled upon in the trial court will not be considered on appeal."); see also Dixon v. Dixon, 362 S.C. 388, 399, 608 S.E.2d 849, 854 (2005) (finding issue raised for first time in a Rule 59, SCRCP motion is not preserved for review); Gartside v. Gartside, 383 S.C. 35, 43, 677 S.E.2d 621, 625 (Ct. App. 2009) (a party cannot use a motion to reconsider, alter or amend a judgment to present an issue that could have been raised prior to the judgment but was not).

2. We find no merit to Wife's assertion Judge Tunstall erred and abused his discretion by issuing an order which effectively modified Judge Cate's order and granted new relief that was not requested by Husband. Assuming arguendo that the issue is properly preserved because Wife could not have raised the matter until her post-trial motion since she did not know of it prior to the judgment, it is clear Judge Tunstall did not modify clear and unambiguous terms of a divorce or separation agreement as prohibited by Nicholson v. Nicholson, 378 S.C. 523, 532, 663 S.E.2d 74, 79 (Ct. App. 2008), but simply construed Judge Cate's order incorporating the parties' agreement to effect the intent of the judge and the parties, and did so in accordance with principles of equity and the rule that implied in every such agreement is a requirement of reasonableness. Davis v. Davis, 372 S.C. 64, 75, 641 S.E.2d 446, 451 (Ct. App. 2006). Further, a family court may exercise its power in equity to ensure a just result. Buckley v. Shealy, 370 S.C. 317, 323-24, 635 S.E.2d 76, 79 (2006) (citing Ex Parte Dibble, 279 S.C. 592, 595-96, 310 S.E.2d 440, 442 (Ct. App. 1983) for the proposition that all courts have the inherent power to do all things reasonably necessary to ensure that just results are reached to the fullest extent possible). Additionally, in consideration of Husband's petition, as well as his argument and presentation of evidence at the hearing, it is equally clear that Judge Tunstall did not, as asserted by Wife, grant Husband relief not requested. Finally, Wife's argument in this respect may be considered abandoned on appeal based on the conclusory nature of her argument and failure to cite any law in support thereof. See Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (noting when an appellant fails to cite any supporting authority for his position and fails to provide any argument or makes conclusory arguments, the appellant abandons the issue on appeal).

3. We further find subject matter jurisdiction was not implicated, and because Wife failed to challenge the family court's authority at the time of the numerous hearings and failed to directly appeal the previous orders, the matter is not preserved. We likewise hold Wife's ambiguity argument is not preserved as she failed to raise the issue before Judge Tunstall.

Subject matter jurisdiction refers to a court's constitutional or statutory power to adjudicate a particular case. Johnson v. S.C. Dep't of Prob., Parole, & Pardon Servs. 372 S.C. 279, 284, 641 S.E.2d 895, 897 (2007). More simply, it is the power to hear and determine cases of the general class to which the proceedings in question belong. Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005). Numerous of our courts' cases have held that subject matter jurisdiction is not implicated when the court possesses the power to hear and determine cases of the general class to which the proceedings in question belong. Gainey v. Gainey, 382 S.C. 414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009). The family court does not have jurisdiction to apportion nonmarital property. Simmons v. Simmons, 370 S.C. 109, 113-14, 634 S.E.2d 1, 3 (Ct. App. 2006); S.C. Code Ann. § 20-7-473 (Supp. 2007) (repealed and replaced by § 20-3-630); S.C. Code Ann. § 20-3-630(B) (Supp. 2009). However, the family court undoubtedly has jurisdiction to determine whether property is marital or nonmarital. See S.C. Code Ann. § 20-7-420 (A)(2)(Supp. 2007) (repealed and replaced by § 63-3-530(A)(2)) (providing the family court has exclusive jurisdiction to hear and determine actions "[f]or divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage...."); S.C. Code Ann. § 63-3-530(A)(2) (2010) (likewise providing the family ...