Smith v. Smith, No. 3801.

CourtCourt of Appeals of South Carolina
Writing for the CourtHEARN, C.J.
Citation359 S.C. 393,597 S.E.2d 188
PartiesHugh McIntyre SMITH, Respondent, v. Mary Elizabeth Dixon SMITH, Appellant.
Decision Date24 May 2004
Docket NumberNo. 3801.

359 S.C. 393
597 S.E.2d 188

Hugh McIntyre SMITH, Respondent,
v.
Mary Elizabeth Dixon SMITH, Appellant

No. 3801.

Court of Appeals of South Carolina.

Submitted April 6, 2004.

Decided May 24, 2004.


359 S.C. 394
Carolyn R. Hills, of Myrtle Beach, for Appellant

359 S.C. 395
James B. Richardson, Jr., of Columbia and James R. Honeycutt, of Fort Mill, for Respondent

HEARN, C.J.:

Mary Elizabeth Dixon Smith ("Wife") filed an order and rule to show cause seeking to hold Hugh McIntyre Smith ("Husband") in contempt for failing to pay alimony. The trial judge declined to hold Husband in contempt, finding Husband did not willfully disobey the court order. We affirm.

FACTS

Husband and Wife divorced on January 19, 1998. Their settlement agreement provided that Wife would receive $3,000 per month in alimony. However, the agreement acknowledged that Husband was nearing retirement and that his retirement would constitute a change in circumstances for the purpose of computing alimony. Specifically, the order stated: "In the event the Husband so retires, the parties acknowledge that this shall constitute a change in circumstances and the Court shall review the financial condition of the parties to determine what, if any, sum of alimony will be appropriate thereafter." The agreement also provided that Husband would pay, after his retirement, a portion of his Social Security benefit each month to Wife.

Upon his retirement in August 1999, Husband stopped paying the $3,000 per month in alimony and has not paid any further alimony, except for a portion of what he receives in Social Security benefits pursuant to the settlement agreement. In addition, while the order acknowledged Husband's retirement would be a sufficient change of circumstances to warrant review of his alimony obligation, no review had occurred, nor had Husband filed an action for review by any court concerning the amount of alimony he should be paying. On November 20, 2001, Wife filed an order and rule to show cause seeking to hold Husband in contempt for failing to pay alimony since August 1999. The trial judge found that because the language in the order requires the court's review of the financial condition of the parties upon Husband's retirement and does not specify which party should seek review, Husband was not in contempt. At the hearing, the judge stated:

359 S.C. 396
I find that because the language within the Order is mandatory, that there is sufficient information or sufficient doubt as to whether or not there was responsibility on either party, other than what they both acknowledge was, in fact, the change of circumstances as anticipated in the Order.
The Order says the Court "shall" review the financial condition of the parties. What we have is a delay in that review,
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29 practice notes
  • Davis v. Davis, No. 4188.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ...from the willful disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful vi......
  • Miller v. Miller, No. 4299.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...from the willful disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful vi......
  • State v. Isaac, No. 27302.
    • United States
    • United States State Supreme Court of South Carolina
    • August 21, 2013
    ...law cases, to equity matters arising from the family courts. E.g. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012); Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004). It is the legislature's prerogative to dictate appealability, and the intent that a person within the Act's term......
  • Stoney v. Stoney, Appellate Case No. 2011-203410
    • United States
    • Court of Appeals of South Carolina
    • August 29, 2018
    ...the willful disobedience of an order of the court." Bigham v. Bigham , 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975) ; Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct. App. 2004) ; S.C. Code Ann. § 63-3-620 (Supp. 2015) ("An adult who wilfully violates, neglects, or refuses to ob......
  • Request a trial to view additional results
29 cases
  • Davis v. Davis, No. 4188.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ...from the willful disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful vi......
  • Miller v. Miller, No. 4299.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...from the willful disobedience of an order of the court." Bigham v. Bigham, 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975); Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct.App.2004); S.C.Code Ann. § 20-7-1350 (Supp.2004) (A party may be found in contempt of court for the willful vi......
  • State v. Isaac, No. 27302.
    • United States
    • United States State Supreme Court of South Carolina
    • August 21, 2013
    ...law cases, to equity matters arising from the family courts. E.g. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012); Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004). It is the legislature's prerogative to dictate appealability, and the intent that a person within the Act's term......
  • Stoney v. Stoney, Appellate Case No. 2011-203410
    • United States
    • Court of Appeals of South Carolina
    • August 29, 2018
    ...the willful disobedience of an order of the court." Bigham v. Bigham , 264 S.C. 101, 104, 212 S.E.2d 594, 596 (1975) ; Smith v. Smith, 359 S.C. 393, 396, 597 S.E.2d 188, 189 (Ct. App. 2004) ; S.C. Code Ann. § 63-3-620 (Supp. 2015) ("An adult who wilfully violates, neglects, or refuses to ob......
  • Request a trial to view additional results

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