Shaw v. Shaw
| Decision Date | 29 July 2020 |
| Docket Number | Appellate Case No. 2017-002258,Unpublished Opinion No. 2020-UP-227 |
| Parties | Tammy Denise Shaw, Respondent/Appellant, v. David Lynn Shaw, Appellant/Respondent. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Greenville County
Tommy B. Edwards, Family Court Judge
AFFIRMED
Randall Scott Hiller, of Greenville, for Respondent/Appellant.
Bruce Wyche Bannister and Luke Anthony Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, for Appellant/Respondent.
Robert A. Clark, of Greenville, Guardian ad Litem.
This is a cross-appeal in a divorce case. David Shaw (Husband) and Tammy Shaw (Wife) both take issue with the family court's order enforcing part of the agreement they reached at mediation.
Husband argues the family court erred by failing to enforce the agreement's custody and visitation provisions. He also claims the family court erred in failing to apply payments he made pursuant to the temporary order toward the lump sum payment in the parties' agreement and by failing to award him attorney's fees.
Wife argues the family court rightly declined to enforce the settlement's custody and visitation provisions but erred by enforcing the settlement's financial provisions. She also claims error in the denial of attorney's fees.
We affirm for the same reasons the family court gave in its decision. The law favors settlements and provides that courts should enforce settlement agreements absent some legal ground for rescinding the contract. As to settlements involving custody and visitation, however, those issues are subject to the family court's supervisory authority, and we share the family court's concern that enforcing the agreement might not be in the best interest of the remaining minor child.
On the periodic payments Husband made between the temporary order and settlement's enforcement, the family court fully credited those payments as being made pursuant to the settlement and we see no grounds to disturb that decision.
We decline to disturb the family court's decision on attorney's fees, though we note the family court remains able to consider attorney's fees at this case's conclusion.
Husband and Wife married in July 1991. They had five children together, three of whom were minors when the case was filed in 2015.
During the marriage, the parties bought several residential rental properties and unimproved lots. Husband purchased and maintained the properties. Wife collected rent checks, kept the rent roll, and made deposits. Many of the properties were encumbered with mortgages, including loans from Husband's parents. Wife also had her own business cleaning homes.
The parties separated in August 2015 after Wife admitted to Husband that she was having an affair. Wife filed this action seeking divorce and related relief.
Husband filed an answer and counterclaim also seeking a divorce and related relief.
In November 2015, the family court entered a temporary order granting primary placement of the parties' minor children to Husband, granting Wife visitation, appointing a guardian ad litem (GAL), barring Wife spousal support due to her admitted adultery, and ordering Husband to pay Wife $2,500 per month "for the purpose of buying-out any of Wife's marital interest in the jointly-held properties."
The parties mediated two months later in an effort to resolve the case quickly. Prior to mediation, Husband gave Wife a financial declaration and an exhibit purportedly delineating all property and debts comprising the marital estate. Wife engaged the services of an accounting expert, but according to Wife, the expert did not do a detailed review of the information Husband provided. Instead, this expert merely gave Wife an estimate of what he would charge to review that information and present a report to the family court.
Both parties were represented by attorneys prior to and at the mediation. The parties reached a settlement agreement and signed it after mediating for about five hours. The settlement agreement divided the marital assets listed on Husband's declaration and required Husband to make multiple cash payments to Wife in exchange for her interest in all properties. Husband was to make monthly payments to Wife over the next twelve years and pay a lump sum of $47,000 within sixty days of the family court approving the agreement. The payments would begin at $2,500 per month for the first two years and would increase by $1,000 per month every two years thereafter.
The settlement agreement also addressed custody and visitation of the parties' three minor children. Because two of these children, AMS (born 1999) and LES (born 2000), are currently over the age of eighteen, we have omitted the custody provisions pertaining to them.
In relevant part, the agreement stated custody of the parties' youngest child, HGS (born 2005), would alternate between Husband and Wife from week to week. The agreement further provided that the parties would abide by Judge Brown's standard restraining orders, agree to foster and encourage a relationship with the other parent, and refrain from making disparaging comments about the other parent.
Wife claimed she discovered after mediation that at least one of the parties' marital assets had been excluded from Husband's pre-mediation financial declaration. She also claimed Husband had overstated alleged debts to his mother and father, excluded a six figure receivable, and was actively marketing a property for one and a half times the value he placed on that same property in his financial declaration. Based on this, Wife claimed the agreement was not valid.
Husband filed a motion to enforce the agreement. The family court conducted a hearing in June 2017. This was roughly a year and a half after the parties had ostensibly settled the case at mediation.
Wife acknowledged during the hearing that she entered into the settlement agreement based on the information Husband provided and that she wanted to resolve the case quickly. She said that she did not hire an appraiser to value the parties' real property, did not ask the parties' business partner for information about the business properties, did not request any information about Husband's debts to his parents, and did not send discovery requests or subpoenas to Husband's bank to request any records prior to mediation.
Wife also testified she had not been under the influence of any drugs or alcohol and nobody threatened her to induce her to enter into the agreement. Wife admitted she participated in negotiating the agreement, read the agreement before signing it, and had understood she was giving up her right to a trial by signing the agreement. Wife also acknowledged she handled parts of the rental business including collecting checks, managing the rent roll, and making deposits. However, Wife denied that she had knowledge of the total rents and claimed she did not know how much income Husband earned. Wife testified she believed the agreement was advantageous at the time because it granted her liquidity and gave Husband all of the risk associated with the rental properties.
The GAL participated in the hearing and submitted a report for the family court's consideration, but did not formally testify and was not examined by the parties. The report noted each parent accused the other of unflattering conduct. Wife accused Husband of preventing the children from speaking with her, sending abusive text messages, abusing alcohol and gambling, and other concerning actions. Husband denied the allegations and blamed Wife for many of the issues concerning the children.
The GAL report noted that one of the parties' sons moved in with Wife after Husband kicked the son out of the house. The report stated HGS—the parties' youngest child—was reluctant to speak with the GAL on many occasions, typically when Husband brought her to the meeting. Although HGS originally stated she liked the custody arrangement—the temporary order granted custody to Husband and weekend visitation to Wife—she later refused to answer this same question. When pushed on whether she wanted to spend more time with Husband or Wife, HGS answered "my mom." According to the report, HGS felt like Husband put her in the middle of his and Wife's relationship.
The GAL also interviewed references the parties provided. The responses from references varied; however, those who were opposed to the children living with Husband voiced concerns that they did not believe Husband had been or was capable of being the children's primary caregiver. The report included notes from one reference who claimed Husband frequently used inappropriate language in front of the children and detailed an incident when one of the children called Wife while the children were on a cruise with Husband claiming Husband was drunk and had locked the child on the ship's balcony.
The GAL's written report included the conclusion and recommendation that the mediated custody and visitation agreement was in the best interest of the remaining minor children. However, the GAL made several statements at the hearing expressing concern about things occurring before and after mediation. The GAL said that he was not in a position to make a final custody recommendation, he was concerned about Husband's inability to compartmentalize his disdain for Wife's actions, and this inability was starting to affect the parties' youngest child. When the family court directly asked the GAL whether enforcing the settlement's custody and visitation provisions would be against the youngest child's best interest the GAL answered he did not know.
As we noted at the beginning, the family court granted Husband's motion to enforce the settlement agreement in part and denied it in part. The family court found both parties entered into the agreement voluntarily and negotiated the...
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