Simpson v. Simpson

• Decision Date: 08 August 2013
• Docket Number: No. 5151.,Appellate Case No. 2011–196348.,5151.
• Citation: 404 S.C. 563,746 S.E.2d 54
• Court: South Carolina Court of Appeals
• Parties: Daisy Wallace SIMPSON, Appellant/Respondent, v. William Robert SIMPSON, individually and as shareholder/member of Simpson Farms, L.L.C. and William R. Simpson, Jr., as shareholder/member of Simpson Farms, L.L.C., Respondents/Appellants.

404 S.C. 563

746 S.E.2d 54

Daisy Wallace SIMPSON, Appellant/Respondent,

v.William Robert SIMPSON, individually and as shareholder/member of Simpson Farms, L.L.C. and William R. Simpson, Jr., as shareholder/member of Simpson Farms, L.L.C., Respondents/Appellants.

Appellate Case No. 2011–196348.

No. 5151.

Court of Appeals of South Carolina.

Heard Dec. 12, 2012.

Decided June 26, 2013.

Rehearing Denied Aug. 8, 2013.

James T. McLaren and C. Dixon Lee, both of McLaren & Lee; and Carrie Ann Warner, of Warner, Payne, & Black, L.L.P., all of Columbia, for Appellant/Respondent.

Reid B. Smith, of Bird & Smith, P.A., of Columbia, for Respondents/Appellants.

GEATHERS, J.

This is a cross-appeal from the family court's order that modified the division of property in the parties' decree of divorce. Daisy Wallace Simpson (Wife) argues the family court committed error by modifying the division of property in the decree and failing to award her attorney's fees and expenses. William R. Simpson, Sr. (Husband) and William R. Simpson, Jr. (Son) also appeal, arguing the family court erred in: (1) modifying the decree because it did not have subject matter jurisdiction; (2) disregarding the law of the case; (3) finding the decree was ambiguous and, consequently, modifying the decree in an effort to ascertain the intent of the trial judge; (4) modifying the decree when Husband, Son, and the LLC had complied with the terms of the decree; (5) its reapportionment of the marital property; and (6) failing to make specific findings of fact and conclusions of law. Husband and Son also contend that Wife is judicially estopped from demanding a cash sum award or that the LLC transfer real estate to her. We reverse and remand.

FACTS/PROCEDURAL HISTORY

Husband and Wife married in 1968. During the course of the marriage, Husband became a successful farmer and real estate investor. In April 2000, Husband and Son signed a limited liability company operating agreement and Husband began to transfer substantial property acquired during the marriage into Simpson Farms, L.L.C. (the LLC). One month later, Wife became aware of these transfers of property into the LLC.

In March 2003, Wife filed an action for divorce, naming Husband, Son, and the LLC as parties. In her complaint, Wife requested, among other relief, an equitable division of the marital assets, including the property that Husband transferred into the LLC. Most of the trial concerned the identity and value of Husband's vast property holdings.

On December 31, 2004, Husband and Wife were divorced by decree of the family court (the Final Decree). In the Final Decree, the family court found that each of Husband's individually owned property holdings was marital property. The family court further found “the transfer of marital property into the LLC was effective as to Son, and Husband should be charged with only 50% of the value of the property held by the LLC.” Additionally, the family court identified and valued the marital property that Husband owned individually and as a member of the LLC.

Based on its identification of the marital assets, the family court awarded Wife 34% of the marital estate, valued at $784,055. In order to effect the equitable division, the family court ordered Husband to transfer to Wife each of the seven properties it found Husband owned individually.¹ By a subsequent order, the family court awarded Wife $85,000 in attorney'sfees and costs. Husband appealed the equitable division of the marital property in the Final Decree. Wife appealed the order regarding attorney's fees and costs. Neither Son nor the LLC appealed.

This matter initially came before this court in Simpson v. Simpson, Unpublished Opinion No. 2007–UP–147 (S.C.Ct.App. filed April 4, 2007), cert. denied, Feb. 21, 2008 ( Simpson I ). Therein, Husband argued the family court erred in awarding to Wife certain pieces of real property that were owned by the LLC. Simpson I. This court found that Husband's argument was not preserved for appellate review.²Id. Additionally, this court stated that, even if the issue had been preserved, Husband failed to present credible evidence to support his contention that the property had been transferred to the LLC. Id. Accordingly, this court held, “the property awarded to [Wife] was individually owned by [Husband], and was not property owned by the LLC.” Id. (emphasis added). As to Wife's appeal, this court remanded the issues of attorney's fees and costs to the family court. Id. Husband subsequently filed a Petition for Writ of Certiorari with our supreme court, which was denied on February 21, 2008.

Following Simpson I, Wife filed a contempt action, alleging Husband and Son were in contempt for failing to transfer the funds and properties awarded to her in the Final Decree.³ Thereafter, several contempt hearings were held before another family court judge.⁴ Throughout the hearings, Husband and Son maintained that Husband did not have the legal ability to transfer complete interest in three of the seven properties awarded to Wife in the decree—the 161.1 acre tract, the 133.2 acre tract, and the House and 16 acres (collectively, the subject properties)—because the properties were titled in the name of the LLC.⁵ Additionally, Son testified that as a member of the LLC he would not consent to transferring the subject properties to Wife.

After the contempt hearings, the family court issued a contempt order on May 28, 2010, finding Husband was not in contempt because the LLC was the titled owner of the subject properties. Consequently, the family court denied Wife's request for attorney's fees regarding the contempt action. On June 7, 2010, Wife filed a motion to reconsider, arguing the family court erred in finding Husband was not the titled owner of the subject properties. Wife further argued the contempt order would result in her receiving less than her percentage share of the marital assets. In response to Wife's motion, the family court issued an order on March 18, 2011, reapportioning the marital property. Subsequently, Husband and Son individually filed motions for reconsideration with the family court, which were both denied. This cross-appeal followed.

STANDARD OF REVIEW

In appeals from the family court, appellate courts review factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 651–52 (2011). “However, we recognize this broad scope of review does not alter the fact that a family court is better able to make credibility determinations because it has the opportunity to observe the witnesses.” Wilburn v. Wilburn, 403 S.C. 372, 743 S.E.2d 734 (2013) (Shearouse Adv. Sh. No. 20 at 22). “Additionally, the de novo standard does not relieve the appellant of the burden of identifying error in the family court's findings.” Id. “Accordingly, the decision of the family court will be upheld unless the Court finds that a preponderance of the evidence weighs against the family court's decision.” Id.

LAW/ANALYSISI. Modification of the Decree

Wife, Husband, and Son argue the family court lacked subject matter jurisdiction to modify the division of property set forth in the Final Decree. We agree.

Generally, the family court has the authority to modify any order issued by the court. S.C.Code Ann. § 63–3–530(A)(25)(2010) (stating the family court has exclusive jurisdiction to modify or vacate any order issued by the court). However, “the law in South Carolina is exceedingly clear that the family court does not have the authority to modify court ordered property divisions.” Green v. Green, 327 S.C. 577, 581, 491 S.E.2d 260, 262 (Ct.App.1997) (emphasis added) (citations omitted); see Roy T. Stuckey, Marital Litigation in South Carolina 375 (4th ed.2010) (discussing exceptions to the family court's exclusive jurisdiction to modify an order issued by it). Section 20–3–620(C) of the South Carolina Code (Supp.2012) provides, “The [family] court's order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.” As this court explained in Swentor v. Swentor, 336 S.C. 472, 480 n. 2, 520 S.E.2d 330, 334 n. 2 (Ct.App.1999):

While an agreement concerning alimony or child support may be modified and enforced by the family court unless the agreement clearly provides otherwise, an agreement regardingequitable apportionment claims is final and may not be modified by the parties or the court, although it may be enforced by the family court unless the agreement provides otherwise.

(emphasis added) (citations omitted).

Following Simpson I, Husband and Son used the contempt hearings as an opportunity to relitigate the issue of ownership of the subject properties. Throughout the contempt hearings, Husband and Son maintained that they should not be held in contempt because the subject properties were titled in the name of the LLC, rather than in Husband's individual name. The family court judge ultimately accepted Husband and Son's contention and issued a contempt order on May 28, 2010, finding the subject properties were titled in the name of the LLC. Based on this finding, the family court concluded that Husband, as a member of the LLC, did not have a transferable interest in the real estate belonging to the LLC pursuant to South Carolina Code section 33–44–501(a). ⁶ As a result, the family court determined that it could not specifically enforce the provision in the Final Decree ordering Husband, individually, to transfer full ownership in the subject properties to Wife. In an effort to resolve this issue, the family court issued an order on March 18, 2011, removing Son's fifty-percent interest in each of the subject properties from the marital estate and reapportioning the marital property.

In this instance, both the May 28, 2010 contempt order and the March 18, 2011 order on Wife's motion for reconsideration,...