Thompson v. Thompson

• Citation: 428 S.C. 142,833 S.E.2d 274
• Decision Date: 07 August 2019
• Docket Number: Appellate Case No. 2016-001770,Opinion No. 5675
• Parties: Jessica Orzech THOMPSON n/k/a Jessica Orzech Pares, Appellant, v. Robert Guignard THOMPSON, Respondent.
• Court: South Carolina Court of Appeals

428 S.C. 142

833 S.E.2d 274

Jessica Orzech THOMPSON n/k/a Jessica Orzech Pares, Appellant,

v.Robert Guignard THOMPSON, Respondent.

Appellate Case No. 2016-001770

Opinion No. 5675

Court of Appeals of South Carolina.

Heard December 4, 2018

Filed August 7, 2019

Gregory Samuel Forman, of Gregory S. Forman, PC, of Charleston, for Appellant.

Megan Catherine Hunt Dell, of Dell Family Law, P.C., of Charleston; and Theresa Marie Wozniak Jenkins, of Theresa Wozniak Jenkins, Attorney at Law, LLC, of Flint, Michigan, both for Respondent.

WILLIAMS, J.:

In this domestic relations matter, Jessica Pares (Wife) appeals the family court's Order from Rule to Show Cause/Motion, arguing the family court erred in (1) granting Robert Thompson's (Husband) Rule 60(b)(5), SCRCP motion; (2) refusing to give Wife another opportunity to refinance the former marital home (the Home); (3) failing to make Husband solely responsible for the lien with Palmetto Coastal Investments, LLC (the Palmetto Lien); and (4) awarding attorney's fees to Husband and not awarding attorney's fees to Wife. We reverse and remand.

FACTS/PROCEDURAL HISTORY

Husband and Wife married on October 13, 2002. During the marriage, the parties owned and operated Palmetto Tree Service, LLC (Palmetto Tree). Wife managed the accounting and clerical tasks, and Husband worked at various job sites planting, removing, and fertilizing trees.

Husband and Wife separated around April 15, 2010, and they were divorced on July 26, 2011. After the parties separated, but prior to their divorce, Husband and Wife entered into a written final settlement agreement (the Agreement) resolving all issues arising out of their marriage except for the matter of divorce. On October 8, 2010, the family court issued a final order (the Final Order), which approved the Agreement, incorporated the Agreement, and indicated the Agreement was issued as the enforceable order of the court.¹

The Final Order provided "[a]s soon as she is able, Wife shall assume or re-finance all loans on [the Home] in her own name. ... Wife must place [the Home] on the market for sale on or before June 1, 2025." The Final Order also provided Husband and Wife would each be responsible for their own debts, indemnify each other against liability for those debts, and pay all accounts and obligations in a timely manner so as to not harm the other party's credit. The Final Order made Husband responsible for all debts associated with Palmetto Tree and indemnified Wife from Palmetto Tree's debts. Finally, the Final Order provided:

It is the intent of the parties that the provisions of [the Final Order] shall govern all rights and obligations of the parties as well as all rights of modification; and, further, that the terms and conditions of [the Final Order] ... shall not be modifiable by the parties or any court without the written consent of Husband and Wife .... Neither the Family Courts of the State of South Carolina nor any other court shall have jurisdiction to modify, supplement, terminate, or amend [the Final Order] or the rights and responsibilities of the parties hereunder.

In August 2011, Wife, on the advice of her counsel—individually and on behalf of Palmetto Tree—consented to the entry of the Palmetto Lien in the amount of $42,500. The Palmetto lien resolved a lawsuit initiated by Palmetto Coastal Investments, LLC, on December 29, 2009, after payments were not made pursuant to a January 31, 2008 commercial lease that was signed by Wife personally and on behalf of Palmetto Tree.²

After entry of the Final Order, Wife paid the mortgages on the Home from accounts held by Palmetto Tree. Husband resided in the Home without Wife from October 2012 until November 2013. During that time, Wife continued to pay the mortgages through June 2013,³ but no further mortgage payments were made following the June 2013 payment until February 2015. Wife testified she believed Husband would pay the mortgages while he resided in the Home. She stated she presented Husband with a lease that required Husband to pay rent, but Husband refused to sign the lease. Husband testified Wife did not provide him with a proposed lease, and there was no agreement for him to pay the mortgages because Wife paid all of the bills out of the Palmetto Tree account. Husband also noted the court did not order him to pay the mortgages. Husband testified that at some point, he became aware he would have to start paying the mortgages after he and Wife argued about the payments. However, Husband indicated he could not pay the mortgages because Wife interfered with his business by withholding checks and insurance information, opening a competing business, and disconnecting his business phone. Husband and Wife each included the Home's mortgage payments on their individual financial declarations in 2013.

Wife testified she attempted to make partial payments on the mortgages after Husband vacated the Home in November 2013. However, Wife indicated the bank would only allow her to make the payments in full. Wife said she utilized the Home as a rental property and received approximately $70,000 in rental income. She stated she did not attempt to make further payments on the mortgages because she had to utilize the money to fix damage Husband caused to the Home⁴ and the bank would not accept partial payments.

In October 2014, Wells Fargo Bank filed an action to foreclose on the Home because the first mortgage was not paid.⁵ Wells Fargo's complaint indicated that as of June 1, 2013, the principal sum of $269,135.73, with an interest rate of 5.875%, advances, late charges, and costs and disbursements of the action, including attorney's fees, were due. On January 2, 2015, Wife e-mailed Husband to inform him of the scheduled foreclosure. She indicated she did not intend to lose the Home but stated it "is in my best interest to prolong the process as long as possible." Wife indicated that although her credit was damaged, her new husband had good credit, so she would not be affected if the Home went into foreclosure. Wife wrote, "I'm assuming you are trying to repair your credit so that you can purchase a home for yourself and do not want a foreclosure on your credit history." Wife gave Husband four options for the Home: (1) do nothing and have the Home go into foreclosure; (2) sign a quit claim deed; (3) allow Wife to sell the Home to her new husband's parents; or (4) sign a quit claim deed so Wife's father could buy Husband's right to the equity in the Home for $60,000. Wife's e-mail provided, "These are the only options available. There is no negotiating. You can either have good credit and be able to buy a new home for yourself now or have bad credit indefinitely. Either way I'm in the [Home] until 2025." In February 2015, Wife paid around $67,000 to prevent foreclosure.

Wife indicated she made multiple attempts to refinance the Home, but those attempts were frustrated by liens on the Home⁶ and the foreclosure action, for which she blamed Husband. Wife executed a deed giving her new husband an interest in the Home. She testified Nationstar Mortgage indicated if she made six months of payments, used her new husband's credit and ownership interest in the Home, and had her new husband co-sign for her, she would likely qualify to refinance the Home.

On March 10, 2015, Husband filed a rule to show cause and motion for relief pursuant to Rule 60(b)(5), SCRCP. Husband argued Wife was in contempt for failing to pay the mortgages and for failing to refinance the Home. In the alternative, Husband argued under Rule 60(b)(5), it was inequitable for the Final Order to have prospective application concerning the ownership rights and obligations associated with the Home due to Wife's unilateral destruction of Husband's credit and Wife's failure to abide by the family court's order to resolve the matter in an equitable fashion. Husband asserted ownership and possession of the Home should be transferred to him and Wife should be responsible for all of the lien judgments attached to the Home, including the Palmetto Lien. Alternatively, Husband contended the family court should immediately list the Home for sale and have the proceeds divided pursuant to the Final Order.

The family court held hearings on the Rule 60(b)(5) motion on January 13, 2016, and April 6, 2016.

In response to Husband's rule to show cause, the family court did not find Wife in contempt of court for her failure to pay or timely pay the mortgages or her failure to refinance the Home. However, the family court granted Husband's Rule 60(b)(5) motion, ordering that the Home be immediately listed for sale because the family court found "it is no longer equitable for [the Final Order], as applied to [the Home], [to] have prospective application ... the circumstances have changed so materially and significantly between these parties that maintaining a financial entanglement between them creates a clearly onerous, unforeseen, and oppressive hardship on both parties." The family court ordered Husband and Wife to each pay 50% of the Palmetto Lien from the proceeds of the sale of the Home. The family court ordered Wife to pay all of Husband's attorney's fees and costs.

Wife filed a motion to reconsider on July 21, 2016. The family court denied Wife's motion on July 27, 2016. This appeal followed.

STANDARD OF REVIEW

The appellate court reviews decisions of the family court de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam). De novo review allows the appellate court to make its own findings of fact, but the appellate court is not required to ignore the family court's superior position to make credibility determinations. Lewis v. Lewis , 392 S.C. 381, 384–85, 709 S.E.2d 650, 651–52 (2011). "Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers , 420...