Whitlock v. Whitlock

Decision Date23 February 2007
Docket Number2007-UP-095
PartiesJoanne B. Whitlock, Appellant, v. John W. Whitlock, Respondent.
CourtSouth Carolina Court of Appeals


Submitted January 9, 2007

Appeal From Richland County, A. E. Gene” Morehead, III, Family Court Judge

Jan L Warner, of Columbia; for Appellant.

John S. Nichols, of Columbia; for Respondent.


Joann B. Whitlock (Wife) appeals the family court's order finding John W. Whitlock (Husband) did not violate the terms of the Pendente Lite Consent Order, the Final Order, and the Decree of Divorce. Wife contends the family court erred in (1) modifying the orders as it lacked jurisdiction to do so (2) finding the previous family court had not addressed issues of taxation in the Final Decree; (3) failing to hold Husband in contempt; (4) delegating to the Internal Revenue Service (IRS) the power to determine the deductibility of court-ordered alimony; and (5) failing to award attorney's fees, costs, and accountant fees. We affirm in part, reverse in part, and remand.


The parties were married on February 9, 1964, in the state of Georgia. The couple had two children. In June 1999, Husband became involved in an adulterous relationship which resulted in the parties' separation. On June 24, 1999, Wife filed for divorce on the ground of adultery. Husband filed an Answer and Counterclaim on August 17, 1999. Wife filed an Amended Reply to the Answer and Counterclaim on October 27 1999.

The family court (Judge Riddle) entered a Pendente Lite Consent Order on July 9, 1999. In pertinent part, the Pendente Lite Consent Order provided:

Defendant-Husband shall pay directly to Plaintiff-Wife the sum of $1, 858.65 per month as temporary alimony commencing and effective July 1, 1999 pending further agreement or order. From that alimony, and with her own earnings from her employment, Plaintiff-Wife shall pay the expenses detailed on her Financial Declaration Budget Form (copy attached), except the health insurance which shall be provided and paid for by Defendant-Husband. If extraordinary expenses arise, they shall be dealt with by supplemental agreement or order. The payment of this pendente lite alimony is without prejudice on the merits and shall have no tax consequences to Plaintiff-Wife, pendente lite. The trial judge may, however, reallocate tax consequences at the final hearing.

(Emphasis added).

A final hearing was held before the family court (Judge Edwards) on March 19 and 20, 2001, and April 23, 2001. Judge Edwards issued a Final Order and Decree of Divorce on December 5, 2001. The Final Order provided that the Pendente Lite Consent Order should remain in effect through and including December 2001. The terms of the Final Order awarded Wife $2, 200.00 permanent periodic alimony, taxable to Wife and deductible to Husband for tax purposes, commencing the date of the order. Neither party moved for reconsideration of the Final Order, nor did either party appeal from the Final Order.

In the first year after the parties separated, they filed joint tax returns. In the years after, the parties filed separately. Some time in 2003, Wife was contacted by the IRS concerning her tax liability for the year 2000. She was told she owed the IRS $4, 887.06 based on the temporary alimony paid to her by Husband. Wife immediately contacted Husband about the letter and he told her he would contact the IRS to ask their advice.” Wife hired an accountant to advise her in the matter.

On August 1, 2004, Wife moved for an Order and Rule to Show Cause why Husband should not be held in contempt for failing to comply with the Pendente Lite Consent Order by refusing to abide by the taxation allocation thereunder for the 2000 tax year. On October 13, 2004, Husband offered to settle the case by paying the $4, 887.06 owed by Wife to the IRS. On October 14, 2004, the family court (Judge Morehead) held a hearing and on March 14, 2005, issued an order. Judge Morehead ruled Husband was not in willful contempt and denied Wife's claim for relief. Specifically, he found the following:

I find [Husband] to be a credible person, and [he] has not willfully violated the court order. I further find this court cannot require [Husband] to pay the amount [Wife] paid to the IRS or the CPA fees she incurred or the legal fees and costs she has incurred. Judge Edward's [sic] order did not address the pendente lite deductibility or non-deductibility of the temporary alimony. Judge Edward's [sic] order required that permanent periodic alimony would begin on January, 2002 and be taxable to [Wife] and deductible to [Husband], but the order is silent as to the Pendente Lite Consent Order as it relates to the treatment of the temporary alimony. The Pendente Lite Consent Order states that the pendente lite alimony may be reallocated at the final hearing. Judge Edwards determined the deductibility and taxability of the permanent periodic alimony, but the court did not address the prior Pendente Lite Consent Order of the parties as it dealt with temporary alimony.

Wife timely moved pursuant to Rules 52, 59, and 60, SCRCP, and Rule 2(a), SCRFC, for reconsideration of the order. Wife filed this appeal after Judge Morehead denied her motion.


On appeal from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 244-45 (Ct. App. 1999). However, this broad scope of review does not require us to disregard the family court's findings. Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002). Nor must we 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. Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 150 (Ct. App. 2005); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996) (noting that because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to the family court's findings where matters of credibility are involved). Our broad scope of review does not relieve appellant of her burden to convince this court that the family court committed error. Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).


Wife contends Judge Morehead erroneously modified Judge Riddle's unappealed Pendente Lite Consent Order and Judge Edwards' Final Order entered in this case. Specifically, Wife asserts Judge Morehead's authority was limited to enforcement of these orders and, thus, he was without jurisdiction to modify them. We disagree.

We believe Wife's arguments mischaracterize Judge Morehead's rulings. Judge Morehead did not change the terms of the prior orders. Instead, he properly exercised his authority when he read the language of the orders in question, took testimony on the issues, and ultimately employed rules of construction to interpret the language of the two prior family court orders. See Emery v. Smith, 361 S.C. 207, 214, 603 S.E.2d 598, 601-02 (Ct. App. 2004) (stating agreement which becomes part of family court's order is fully subject to the family court's authority to interpret and enforce its own decrees”); see also Covington v. Covington, 306 S.C. 473, 475, 412 S.E.2d 455, 456 (Ct. App. 1991) (holding judgments are to be construed like other written instruments). Accordingly, we find no merit to Wife's argument that Judge Morehead improperly modified the orders at issue in this case.


Wife argues Judge Morehead erred in finding that Judge Edwards failed to address the temporary alimony taxation issues in the Final Order. We agree.

In his order, Judge Morehead found that Judge Edward's [sic] order did not address the pendente lite deductibility or non-deductibility of the temporary alimony.” However, this finding was in error as the Final Order clearly provided that The Pendente Lite Consent Order issued on July 7, 1999 shall remain in effect through and including the calendar month in which this decree is issued.” Although the Pendente Lite Consent Order stated that [t]he trial judge may, however, reallocate tax consequences at the final hearing, ” the family court failed to do so. The Pendente Lite Consent Order provided that [t]he payment of this pendente lite alimony is without prejudice on the merits and shall have no tax consequences to Plaintiff-Wife, pendente lite.”

The orders at issue were clear and unambiguous. If the language employed is plain and unambiguous, there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used. Stanaland v. Jamison, 275 S.C. 50, 53, 263 S.E.2d 578, 579 (1980) (noting family court has the duty to construe a contract which is subject to more than one interpretation, but when the terms of a contract are clear, there is no room for interpretation and the parties must live with the agreement which was made”); In re White, 299 S.C. 406, 412, 385 S.E.2d 211, 215 (Ct. App. 1989) (recognizing in family court action involving child support that judgments are to be construed like other written instruments). Therefore, the orders are to be read in the light of their literal meaning.

Because the Final Order did nothing but continue the tax consequences outlined for the temporary alimony in the Pendente Lite Consent Order, the Pendente Lite Consent Order was still controlling and the temporary alimony should have had no tax...

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