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2004-UP-578 - Steele v. Steele

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David E. Steele, Respondent,

v.

Clara M. Steele, Appellant.


Appeal From Lancaster County
 Walter B. Brown, Jr., Family Court Judge


Unpublished Opinion No. 2004-UP-578   
Submitted October 1, 2004 – Filed November 17, 2004


AFFIRMED


G. Robin  Alley, of Columbia, for Appellant.

Philip E. Wright, of Lancaster, for Respondent.

PER CURIAM: Clara M. Steele appeals from a family court order finding her in contempt for destroying the plants, shrubs, and trees surrounding her former marital home.  We affirm. [1]

FACTS

Clara M. Steele (Wife) and David E. Steele (Husband) were divorced on March 27, 2003.  The settlement agreement, which was incorporated into the final order, required Wife to vacate the marital home by April 15, 2003, at which time Husband would pay her $5,000 for moving expenses.  Husband agreed to pay Wife $45,000 by May 15, 2003, and an additional $40,000 by April 1, 2007.  In the agreement, the parties promised not to “destroy or damage any real or personal property of the other party.”

After having been in exclusive physical possession of the marital home for three years pending the final settlement of the parties’ property rights, Wife vacated the home on April 15, 2003.  Husband entered the home the following day.  Shortly after moving in, he noticed damage to the Yoshino cherry trees, the most fragile plants in the yard.  He soon noticed a general decline in the health of the other plants as well.  Thirteen days after Husband took possession of the home, many of the plants around the house were dead or dying.  Pictures of the damage showed that the plants within ten to fifteen feet of the house had been completely destroyed.  

Husband brought a contempt action against Wife on May 16, 2003, alleging Wife had damaged and destroyed plants, shrubs, and trees around the marital home.  He further requested to suspend payment of the $45,000 he owed Wife until the contempt action was heard.  At the hearing, Husband testified as to his opinion as a landscaper with a degree in horticulture and a holder of a South Carolina pesticide license.  He believed that a chemical had been applied to the soil and that the chemical would have residual effects.  To test this theory, Husband planted new plants in the contaminated soil to see if they would survive.  The new plants died almost immediately.  Husband also testified that he engaged experts to help him document the damage and estimate the cost of repair.

Husband believed Wife was responsible for the damage.  He pointed out that Wife has a master gardener degree from Clemson University and is “fairly knowledgeable on chemicals that could be used to contaminate soil.”  Wife’s cousin and sister testified for Husband, and both stated that Wife told them she would kill and destroy all the plants around the house if she had to move from the marital home.  In response, Wife presented testimony that she was not close to her sister or cousin and she would not tell them such damaging information.  Wife’s daughter and another cousin testified that Wife had never mentioned destroying any plants around the house.  

The family court held Wife in contempt and ordered Husband to engage the services of a licensed contractor to return the property as close as possible to its condition on April 15, 2003.  The court ordered that Wife would bear the cost of removing any contaminated soil and replacing all the plants that were destroyed.  The court further found Wife should pay Husband’s attorney’s fees and costs, totaling $1,000.  Both the cost of restoring the property and the attorney’s fees were to be deducted from the $45,000 Husband owed Wife.  

Pursuant to Wife’s motion for reconsideration, the court modified the contempt order as it related to damages.  The amended order required each party to obtain an estimate for removing the soil and replacing the plants.  The parties were directed to attempt to come to an agreement on the cost of restoring the property.  If an agreement could not be reached, a subsequent hearing would be scheduled to determine the measure of damages.  Wife appeals.            

STANDARD OF REVIEW

Although a determination of contempt is within the family court’s discretion, an order holding a party in contempt “should be reversed when the holding is based on a finding that is without evidentiary support or when there is . . . an abuse of discretion.”  Means v. Means, 277 S.C. 428, 431, 288 S.E.2d 811, 812-13 (1982).  To sustain a finding of contempt, the record must be clear and specific as to acts or conduct upon which the finding is based.  See Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982).

LAW/ ANALYSIS

Wife maintains the family court erred in holding her in contempt of a prior court order because the finding is without evidentiary support.  We disagree.

Upon moving into the home, Husband immediately started noticing problems with the plants, shrubs, and trees on the property.  As stated above, a mere thirteen days later almost everything, including the grass surrounding certain plants, was dead or dying.  In Husband’s opinion as a landscaper and licensed pesticide applicator, the soil had been directly contaminated.  He tested his theory by planting new tomato plants, all of which died over a two-week period.   Furthermore, Husband testified that the rain totals for the year had been “more than sufficient.” 

Additionally, Wife is a master gardener and has some knowledge of chemicals.  She also had direct, unfettered access to the house.  In contrast, Husband testified that he once had to be escorted to the property by a deputy sheriff to view a roof in need of repair so Wife would not shoot at him.

Most importantly, Shelby Jean Taylor, Wife’s first cousin, testified that Wife said on several occasions that “she was going to kill everything around [the house].”  Wife’s sister, Samantha Ann Roads, testified that, following their mother’s death, Wife “said that if she had to move from the house, had to leave the house, that she would kill and destroy all the plants around the house.”  Though Wife’s daughter and Wife’s cousin, Joyce Snipes, both testified that Wife had a strained relationship with Husband’s witnesses and would never have used them as confidantes, Snipes’ testimony contradicted Wife’s.  Snipes claimed that Wife and Husband’s witnesses had not spoken since the funeral of Wife’s mother.  However, Wife admitted she saw Taylor and her sister once a month since her mother passed away. 

Based on the testimony of the witnesses, we find there is evidence in the record from which the family court could find that Wife destroyed the plants surrounding the marital home.  Therefore, the family court did not abuse its discretion by holding Wife in contempt of its previous order.

Wife next maintains the family court erred by awarding damages to Husband because the damages were speculative in nature and based entirely on conjecture.  We disagree.

According to the order dated July 25, 2003, the parties each must acquire one estimate on the cost of “removal of the contaminated soil and replacement of the plants, which were destroyed.”  If they cannot agree on a price to replace the plants, the family court “shall schedule a hearing . . . to determine the measure of damages.”   Thus, damages have yet to be awarded.  Because the family court has not made a final ruling on damages, the appeal as to the issue of damages is premature.  See S.C. Code Ann. § 14-3-330 (1976).    

Accordingly, the family court’s order is

AFFIRMED.

HEARN, C.J., HUFF, and KITTREDGE, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.