Michael Landry, Petitioner, v. Angela Landry, Respondent.
Appellate Case No. 2019-000843
THE STATE OF SOUTH CAROLINA In The Supreme Court
Heard February 11, 2020 – Filed May 13, 2020
Opinion No. 27968
JUSTICE HEARN
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS; Appeal From Greenville County, Rochelle Y. Conits, Family Court Judge
REVERSED AND REMANDED
Rhett D. Burney, of Rhett Burney, PC, of Simpsonville, and J. Falkner Wilkes, of Greenville, for Petitioner.
Larry Keith Wood, of Larry K. Wood, P.A., of Mauldin, for Respondent.
FACTUAL/PROCEDURAL BACKGROUND
Michael Landry (Husband) filed an action against Angela Landry (Wife) seeking a divorce on the ground of one year‘s continuous separation. The parties were scheduled for a contested
As requested by the family court, Husband‘s attorney drafted the order, incorporating the handwritten agreement by typing its terms into the final order. After sending it to opposing counsel for his approval, Husband submitted the order to the family court judge, who signed it on January 18, 2017. Nine weeks later, Husband noticed the order contained a provision requiring him to pay Wife one-half of his military retirement benefits—the focal point of this appeal. Specifically, paragraph 2 of the final order, which was not part of the parties’ handwritten agreement, stated: “Husband shall pay wife one-half of his Airforce retirement[.] The Defendant will as soon as possible make application for her portion of the benefits to be paid directly to her relieving him of any obligation to continue to pay her portion out of his funds.” However, the handwritten agreement did mention Husband‘s military retirement in paragraph 6, which stated: “The husband‘s alimony payments, child support payments, and ½ of military retirement for December 2016 shall be paid by husband to wife once the TSP1 is divided by QDRO. The amount
The court held a hearing on the motion. Noticing that a provision in the handwritten agreement referenced Husband‘s military retirement benefits, the court questioned Husband‘s counsel as follows: “Well, wait a minute, Paragraph 6 says, ‘The husband‘s alimony payments, child support payments, and one half of the military retirement.’ It says that doesn‘t it?” Husband‘s counsel answered affirmatively. Regarding paragraph 2 at issue, the court asked Husband‘s counsel, “Well, why in the world would you add that if, y‘all drafted it, why did y‘all add that if it wasn‘t your agreement?” Husband‘s counsel replied, “I don‘t know why we put that in there. All I can tell you, I know why we put the agreement in writing. That was so there would not be any misunderstanding. Both parties signed that. We presented that to the court. The only reason we typed it from that point on was because it looked neater.” Wife‘s counsel opposed the motion, arguing the parties did in fact agree to share Husband‘s military retirement benefits.
Thereafter, the court denied the motion, finding Husband should have requested relief pursuant to
ISSUE PRESENTED
Did the court of appeals err in affirming the family court‘s order denying Husband‘s motion under
STANDARD OF REVIEW
On appeal, this Court reviews the family court‘s legal and factual issues de novo. Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). Therefore, in appeals taken from the family court, the appellate court may find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 652 (2011). However, a family court‘s evidentiary or procedural rulings will not be reversed on appeal absent an abuse of discretion. Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2. In reviewing decisions to grant or deny motions under Rule 60, SCRCP, the abuse of discretion standard applies. See Ex Parte Carter, 422 S.C. 623, 631, 813 S.E.2d 686, 690 (2018). An abuse of discretion occurs when the ruling is controlled by an error of law, or when based on factual conclusions, is without evidentiary support. McKinney v. Pedery, 413 S.C. 475, 482, 776 S.E.2d 566, 570 (2015).
DISCUSSION
Husband contends both the family court and the court of appeals erred in rejecting Rule 60(a) as a vehicle for correcting the order to conform it to the parties’ original intent. Conversely, Wife asserts Rule 60(a) is inapplicable because Husband seeks to change the scope of the judgment and he forfeited his ability to challenge the order by failing to file a Rule 59(e) motion. We disagree that Rule 59(e) afforded the only avenue of relief. However, because the agreement is ambiguous as to whether the parties actually intended to permanently divide Husband‘s military retirement benefits, and that fact was never clarified during the court‘s initial approval of the agreement, we decline to adopt Husband‘s position at this posture and instead remand to the family court for that determination.2
The basic distinction between clerical mistakes and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of blunders in execution whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination.
Sartin v. McNair Law Firm, 756 F.3d 259, 265 (4th Cir. 2014) (quoting Rhodes v. Hartford Fire Ins. Co., 548 Fed.Appx. 857, 859-60 (4th Cir. 2013) (per curiam)). Instead, for Rule 60(a) to apply, the “mistake” must be one where “there is an inconsistency between the text of an order or judgment and the . . . court‘s intent when it entered the order or judgment,” which “includes an unintended ambiguity that obfuscates the court‘s original intent.” Id. at 265-66.
While the family court has authority to modify certain orders, including those involving a child or ongoing child support and alimony payments upon a showing of changed circumstances, it may not modify an order pertaining to equitable property division. See Miles v. Miles, 393 S.C. 111, 120, 711 S.E.2d 880, 885 (2011) (holding spousal support may
Specifically, Rule 60(a) provides a mechanism to modify an order that may be non-modifiable under these general principles. Thompson v. Thompson, 428 S.C. 142, 149, 833 S.E.2d 274, 278 (Ct. App. 2019) (“[T]he family court has jurisdiction to reconsider an otherwise un-modifiable property division in order to correct clerical errors and in exceptional circumstances.“). For example, the court allowed modification of property division under Rule 60(a) to correct a clerical error that accounted for the same trailer twice in the court order. Clark v. Clark, 423 S.C. 596, 609-10, 815 S.E.2d 772, 779-80 (Ct. App. 2018). In Simmons v. Simmons, 392 S.C. 412, 414-15, 709 S.E.2d 666, 667 (2011), we found the family court had subject matter jurisdiction to revisit a court-approved divorce settlement agreement when the alimony portion was declared void on appeal. Moreover, the court of appeals has found exceptional circumstances existed to allow modification under Rule 60(b)(5). See Johnson v. Johnson, 310 S.C. 44, 47, 425 S.E.2d 46, 48 (Ct. App. 1992) (holding if justice so requires, the court may relieve a party of a final consent order if it was based on a vacated final consent order in a related case).
Here, in its order denying Husband‘s Rule 60(a) motion, the family court held the relief Husband sought did not fall within the scope of Rule 60(a), and that he instead should have filed a motion pursuant to Rule 59(e). Under this state‘s precedent discussed above, this determination was error. Because we find the family court erred in denying Husband‘s motion based on a lack of jurisdiction, we now consider the merits of Husband‘s claim.
Here, there was no hearing with testimony from the parties to determine whether they agreed to the provision at issue, and we cannot infer findings of fact which do not appear in the record. See
The procedure utilized by the parties and the court in approving the handwritten agreement reached immediately before the hearing has hampered our ability to resolve this case. Normally, we are not inclined to provide litigants with another “bite at the apple” in presenting their case. See Lewis, 392 S.C. at 393 n.11, 709 S.E.2d at 656 n.11. Moreover, a party whose conduct induces error is generally not in a position to complain on appeal. 5 C.J.S. Appeal and Error § 1082 (2019) (“Error due to the fault, or in favor, of the appellant or plaintiff in error ordinarily will not result in a reversal . . . . Generally, to procure the reversal of a judgment, the commission of error without fault on the part of the party complaining must be shown.“). However, without any testimony as to what the parties intended in paragraph 6 of the handwritten agreement, even our de novo standard of review does not enable us to find the parties agreed to share Husband‘s military retirement benefits. Accordingly, we take this opportunity to remind the bench and the bar of the proper procedure for approving family court agreements.
The approval of agreements reached between parties in domestic litigation dates back to 1983. Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983) (“In all decrees entered after this decision, the parties may contract concerning
When parties choose to resolve their disputes through settlement rather than participate in a contested hearing, the better practice is for counsel to reduce the agreement to writing in a formal, typed document duly initialed and signed by the parties. Indeed, this Court has noted that “out of court agreements should be reduced to writing and submitted to the court for approval.” Small v. Small, 286 S.C. 87, 90, 332 S.E.2d 769, 771 (1985). At the approval hearing, the agreement or a copy of it should be marked as an exhibit, and the parties should be examined under oath concerning their understanding of the agreement, its voluntary nature, their satisfaction with counsel, and whether there has been a full disclosure of all marital assets and debts. Thereafter, counsel should request the court admit the agreement into evidence.
While having a formal, typed document introduced into evidence and ultimately attached to the family court‘s final order is preferred, we recognize that sometimes, as here, an agreement is reached immediately before a scheduled contested hearing and is not reduced to a formal typed document. See Small, 286 S.C. at 88, 332 S.E.2d at 770 (involving a divorce settlement agreed upon in open court). In that case, the terms of the agreement should be carefully stated upon the record, and thereafter, the parties should be thoroughly questioned under oath concerning their understanding of the terms of the agreement, the voluntariness with which the agreement was entered, their satisfaction with counsel, and whether there has been a full financial disclosure. See Liles v. Liles, 272 S.C. 511, 513, 252 S.E.2d 886, 887 (1979) (concluding “the settlement agreement became binding when it was read into the record“);
Moreover, because family courts are courts of equity, their primary focus is whether the parties’ agreement is fair and reasonable. See Fischl v. Fischl, 272 S.C. 297, 300, 251 S.E.2d 743, 745 (1979). Naturally, this inquiry begins with determining whether the agreement was voluntarily given. See Skipper v. Skipper, 290 S.C. 412, 413, 351 S.E.2d 153, 154 (1986). In deciding whether an agreement is fair, it is not the court‘s task to decide the parties’ rights but rather to determine whether the agreement is within the bounds of reasonableness from both a procedural and substantive perspective. Burnett v. Burnett, 290 S.C. 28, 30, 347 S.E.2d 908, 909 (Ct. App. 1986). In the context of property settlement, the court is required to consider the parties’ financial declarations.4 See
Because the parties’ agreement in this case was ambiguous, the family court was required to determine the parties’ intent and resolve the ambiguities as part of its obligation to review whether the agreement was fair and reasonable. Based on the record presented to us, neither at the initial hearing approving the parties’ agreement nor the subsequent hearing on Husband‘s Rule 60(a) motion was any evidence received by the family court as to what the parties intended by paragraph 6 in the handwritten agreement regarding Husband‘s military retirement benefits. Therefore, we cannot discern from the record before us any evidence supporting the family court‘s finding that the final order incorporated the parties’ intent with respect to this significant marital asset. Accordingly, we remand to the family court to make this determination.
CONCLUSION
For the foregoing reasons, we conclude the court of appeals erred in affirming the family court‘s denial of Husband‘s Rule 60(a) motion based on a lack of jurisdiction, and we remand for an evidentiary hearing to determine what the parties actually agreed to with respect to Husband‘s military retirement benefits and whether Husband is entitled to relief.
REVERSED AND REMANDED.
BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.