Smith-Cooper v. Cooper, 3295.

• Decision Date: 12 February 2001
• Docket Number: No. 3295.,3295.
• Court: South Carolina Court of Appeals
• Parties: Denise SMITH-COOPER, Respondent, v. James L. COOPER, Jr., Appellant.

344 S.C. 289

543 S.E.2d 271

Denise SMITH-COOPER, Respondent, v. James L. COOPER, Jr., Appellant.

No. 3295.

Court of Appeals of South Carolina.

Heard December 13, 2000.

Decided February 12, 2001.

James G. Long, III, of Nexsen, Pruet, Jacobs & Pollard, of Columbia, for appellant.

Frank B. Register, Jr., of Cooper, Register & Krajack, of Lexington, for respondent.

HEARN, Chief Judge:

James L. Cooper, Jr. (Husband) appeals from a family court order finding the provisions of a property settlement and support agreement nonmodifiable and holding him in contempt for failure to comply with the provisions of the agreement. We affirm in part and reverse and remand.

Husband and Denise Smith-Cooper (Wife) were married in 1987 and divorced on September 26, 1994. On August 26, 1994, the parties executed a property settlement and support agreement which the family court approved and incorporated into the divorce decree. The agreement obligates Husband to pay $260 in alimony to Wife every other week, as well as numerous other expenses for Wife, including: the mortgage on Wife's residence, assistance with the costs of repairs and maintenance on Wife's residence, land option payments, automobile insurance, health insurance, uninsured medical expenses, and life insurance.¹ The agreement further provides:

As any of the above expenses are paid in full or the obligation no longer exists, Husband is no longer obligated to make these payments and the total amount of his monthly obligation to Wife will be reduced accordingly.

...

If at any time Wife receives social security disability benefits or becomes employed in a full time capacity, all amounts received from the sources, after 6 months of such receipt, shall be reduced from Husband's total obligation at that time by the amount Wife receives from the sources.... The ultimate goal of both parties is that at some future time, Wife will become totally self-sufficient and will not require any assistance from Husband.

The parties also expressly agreed that "this agreement shall not be modifiable by any court without the consent of both parties" and that all modifications must be in writing and signed by both parties.

In October 1995, Wife applied for social security disability benefits, claiming she became disabled in January 1991, due to irritable bowel syndrome and depression. In February 1996, the Social Security Administration denied her application. She did not appeal. After the commencement of this action, Wife hired an attorney to pursue a second claim for social security benefits. In October 1998, the Social Security Administration again denied her claim.

In January 1998, Husband lost his job. He received two weeks severance pay, payment for his accrued sick leave, and unemployment benefits in the amount of $224.00 per week for several months. Wife's health insurance, which was acquired through Husband's employment, expired in January 1998.

Wife petitioned the family court for a rule to show cause why Husband should not be held in contempt for failure to comply with the support provisions of the agreement. Prior to the hearing, Husband brought an action against Wife for modification or termination of his alimony obligation.

The consolidated cases were tried before the family court on January 4, 5, and 6, 1999. By order dated March 11, 1999, the family court found the agreement was not modifiable and held Husband in contempt. The court ordered Husband (1) to continue paying Wife's mortgage and be responsible for the upkeep, maintenance and repairs on the property, and (2) to continue paying Wife alimony and satisfy an alimony arrearage of $1,720.

The court further found Husband allowed Wife's health insurance to lapse without informing her of her right to obtain COBRA coverage from his former employment. The court ordered Husband to pay all of Wife's outstanding medical and dental expenses, including reimbursing her for medical bills she paid and for outstanding bills due. In addition, the family court ordered Husband to obtain health insurance for Wife, provided that his liability for her uninsured medical expenses would continue until he obtained insurance coverage on her behalf. Additionally, the family court directed Wife to undergo psychiatric counseling "in order that she overcome her medical and psychological problems in an effort to become employed." The court ordered Husband to contribute $70 every other week to Wife for the cost of counseling. Finally, the family court awarded Wife $7,500 in attorney fees. The family court denied Husband's post-trial motion for reconsideration. This appeal followed.

SCOPE OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). This broad scope of review does not, however, require this court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

DISCUSSION

I. Judicial Modification of Agreement

Husband asserts the family court erred in finding the agreement may not be judicially modified. We agree.

Generally, where an agreement is clear and capable of legal construction, the court's only function is to interpret its lawful meaning and the intent of the parties as found within the agreement. Bogan v. Bogan, 298 S.C. 139, 142, 378 S.E.2d 606, 608 (Ct.App.1989). However, where an agreement is ambiguous, the court should seek to determine the parties' intent. Ebert v. Ebert, 320 S.C. 331, 338, 465 S.E.2d 121, 125 (Ct.App.1995); Mattox v. Cassady, 289 S.C. 57, 60-61, 344 S.E.2d 620, 622 (Ct.App.1986). A contract is ambiguous when it is capable of more than one meaning or when its meaning is unclear. Bruce v. Blalock, 241 S.C. 155, 160, 127 S.E.2d 439, 441 (1962); 17A Am.Jur.2d Contracts § 338, at 345 (1991).

Here, one portion of the agreement reads: "The parties agree that this agreement shall not be modifiable by any court without the consent of both parties." However, the alimony portion of the agreement clearly and unambiguously envisions that Husband's alimony obligation will be reduced as Wife receives social security disability benefits or becomes employed. Moreover, the alimony provision states: "The ultimate goal of both parties is that at some future time, Wife will become totally self-sufficient and will not require any assistance from Husband." The family court judge found he could not modify the alimony provisions of the agreement because of the clause relating to non-modifiability. However, this construction of the agreement completely eviscerates the portions of the agreement concerning the reduction of Husband's alimony obligation as Wife receives social security disability benefits or becomes employed. It is clear that the parties intended their agreement regarding alimony would be modified downward as Wife became more self-sufficient. In fact, during the hearing to approve the parties' agreement, Wife's counsel stated that Husband would continue to pay alimony "until disability kicks in or until she becomes capable of going back to work." In the face of such clearly expressed intent, we hold it was error for the family court judge to rule that he was without authority to modify the alimony provisions of the agreement.

The family court's ruling regarding non-modifiability places Husband in the untenable position of being unable to obtain relief so long as Wife neither receives social security disability benefits nor becomes gainfully employed. It also encourages Wife to exert little or no effort to become employed. Our reading of the agreement convinces us that it specifically and unequivocally provided for the downward modification of Husband's alimony obligation.

While the family court refused Husband's request for modification, it increased Husband's alimony obligation beyond that contemplated by the parties' agreement. This was error. The agreement provided that, with respect to the marital residence, "Husband will assist in paying costs of maintenance and repairs." The family court established a procedure whereby Wife was to provide Husband with estimates from contractors concerning any repairs to the property, and further provided that if Husband did not find a contractor himself within thirty days, he "shall then be required to pay the estimated costs to the contractor upon completion of the job." Thus, despite the family court's ruling that the agreement was non-modifiable, the court modified the agreement by requiring Husband to be 100% responsible for the payment of the repairs. This was clearly error.

Under our reading of the agreement, the parties contemplated that any modification to the agreement would be a downward modification of Husband's obligations, not an upward modification. The family court's order is reversed to the extent it provides a procedure to facilitate Husband's assistance with repairs and maintenance of the home and requires Husband to be fully responsible for these expenses.

Likewise, the family court's mandate that Husband pay Wife $70 every other week towards the cost of Wife's counseling was erroneous. In the provision relating to Husband's maintenance of health insurance for the benefit of Wife, the agreement provides that "Husband will be responsible for all deductible amounts incurred by Wife on the applicable health insurance policy for any physical exam, any diagnostic proceeding and any necessary treatment up to a total amount equal to the insurance deductible per year." Although the agreement provides that "Husband is to be responsible for uncovered...