Smith v. Smith, 1825
| Decision Date | 09 March 1992 |
| Docket Number | No. 1825,1825 |
| Citation | 308 S.C. 492,419 S.E.2d 232 |
| Parties | Tandy T. SMITH, Respondent-Appellant, v. Philip P. SMITH, Appellant-Respondent. . Heard |
| Court | South Carolina Court of Appeals |
Otto W. Ferrene, Jr., of Ferrene & Keep, Hilton Head Island, for appellant-respondent.
H. Kay Morton and William M. Bowen, of Bowen & Smoot, Hilton Head Island, for respondent-appellant.
Husband, Philip P. Smith, and wife, Tandy T. Smith, were divorced by order of the family court on April 26, 1988. The wife appealed and this court reversed the award of rehabilitative alimony of $1,200 per month for twenty-four months and awarded the wife $2,000 per month permanent periodic alimony. The denial of attorney's fees was also reversed and remanded for a determination of the amount of attorney's fees the wife should be awarded.
Prior to the remand hearing, the wife made a motion that the $2,000 monthly alimony award be retroactive to the date of the divorce decree and that interest be awarded on the difference. The remand hearing was held on November 28, 1989 and, prior to the issuance of an order, the husband filed a post-trial motion to take out-of-state depositions for use at a Rule 60(b), SCRCP hearing which the trial judge granted. He later filed a motion for relief under Rule 60(b). Following a March 12, 1990 hearing, the trial judge issued his order dated May 5, 1990 granting attorney's fees to the wife, denying wife's motion for a retroactive alimony, and denying the husband relief under Rule 60(b). Both parties appeal. We affirm as modified.
By affidavit, the husband's attorney represented to the court that the parties had a change of circumstances warranting termination or modification of alimony to prevent inequitable prospective application. He stated, upon information and belief, the wife had remarried or held herself out to be married prior to the opinion rendered in the initial appeal and that the wife was involved in an adulterous relationship prior to the divorce, thereby warranting a termination of alimony and a rebate of alimony payments. The husband further sought attorney's fees and costs for the necessity of bringing this proceeding.
A hearing was held on January 24, 1990 on the husband's motion to take out-of-state depositions. The husband's attorney stated he needed the depositions to support the merits of a Rule 60(b) motion. He represented to the court that they had only recently received information that the wife was seeing a Dr. Arthur at the time of the divorce and prior to the November 28 remand hearing, Dr. Arthur and the wife moved to St. Louis, Missouri, bought a house together, were living together and holding themselves out as being married. The trial judge granted the husband's motion to take out-of-state depositions of the wife, her parents, Dr. John Pinckney Arthur, and private investigators. He found the depositions could reveal information affecting the court's ruling on the remand issues as well as the final divorce hearing. He further reserved the right to award attorney's fees and costs to either party, but stated such fees and costs would be awarded to the wife if the depositions were fruitless.
At the March 12, 1990 hearing on the Rule 60(b) motion, the husband presented evidence consisting of the testimony of a Mr. and Mrs. Churchill, the testimony of a Beaufort County Sheriff's detective, the testimony, affidavit and deposition of the wife, the affidavit and deposition of Dr. Arthur and the deposition of a private investigator. After consideration of the evidence, the trial judge issued his order on May 5, 1990. He held the wife was not entitled to retroactive alimony stating she should have requested it in her initial appeal and that, if this court had deemed retroactive alimony proper under the circumstances, it would have awarded it. He further held, as a result of the remand hearing, the wife was entitled to $3,500 in attorney's fees for the preparation and trial of the matter and $750 for the appeal and that she was entitled to $2,609.30 in attorney's fees for defense of the Rule 60(b) motion. He also denied the husbands Rule 60(b) motion finding it untimely in that it was not made within one year from the date of the final divorce order of April 26, 1988.
The husband argues on appeal that the trial judge erred in denying his Rule 60(b) motion, in failing to terminate alimony, in awarding the wife attorney's fees for defense of the Rule 60(b) motion, and in awarding the amount of attorney's fees and costs for the initial trial. We disagree.
The husband first contends the trial judge erred in denying his motion under Rule 60(b), SCRCP. However, the trial judge found the rule specifically provides that such motion cannot be entertained unless made within one year after the judgment order was entered and since the final divorce order was dated April 26, 1988, the motion was untimely. The husband did not except to the trial judge's finding that the one year limitation applied and, thus, it is the law of the case. Further, we agree with the trial judge that the proper procedure for modification of alimony is a petition for the same based on a change in circumstances pursuant to S.C.Code Ann. § 20-3-170 (1985). Since the family court has the power to make such changes in the amount of alimony, including retroactive termination of accrued alimony as altered circumstances show to be equitable, 1 we fail to see how a Rule 60(b) motion to modify or terminate alimony affords the husband any greater relief than that available through the well accepted avenue of a petition for modification pursuant to § 20-3-170. Given the facts of this case, we find the husband should seek relief through a petition for modification based on a change of circumstances and, therefore, affirm the denial of relief under the Rule 60(b) motion.
In light of our affirmance of the denial of the 60(b) motion, we need not address the husband's issues on termination of alimony and the award of attorney's fees to the wife for defense of the 60(b) motion since those arguments depend on the success of the 60(b) motion. As to the award of fees and costs for the initial trial, we find no abuse of discretion and, therefore, affirm. See Stevenson v. Stevenson, 295 S.C. 412, 368 S.E.2d 901 (1988) ().
The wife also raises several issues on appeal including the denial of retroactive alimony, the amount of attorney's fees and costs awarded, the allowance of the out-of-state discovery, and...
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