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2005-UP-063 - Gentry v. Gentry

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


John R. Gentry, III,        Respondent,

v.

Doris Gentry,        Appellant.


Appeal From Berkeley County
Jack Alan Landis, Family Court Judge


Unpublished Opinion No. 2005-UP-063
Heard December 14, 2004 – Filed January 25, 2005


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Peggy McMillan Infinger, of Charleston, for Appellant.

Joseph Todd Manley, of Moncks Corner, for Respondent.

PER CURIAM:  In this divorce action, the wife, Doris Gentry, appeals the approval of a settlement agreement and the award of attorney’s fees to the husband, John R. Gentry, III.  We affirm in part, reverse in part, and remand.

FACTS

The parties married in 1985 and had one child together.  They separated in March 1997.  On April 28, 2003, the husband commenced this action for a divorce based on a one-year separation, sole custody of the minor child, child support, uncovered medical expenses for the minor child, a bar on alimony, and attorney’s fees.  He also filed a notice of motion and motion for temporary relief on various issues incident to the divorce.  The wife was served with these documents by certified mail, return receipt requested, on May 16, 2003; however, counsel for the husband admitted at the hearing that he could not produce a signed return receipt. 

The temporary hearing was scheduled for June 9, 2003, twenty-four days after the wife received the pleadings.  On June 6, 2003, three days before the hearing, counsel for the husband sent the wife by facsimile a proposed settlement agreement.  The agreement provided the husband would receive most of the marital assets, including the marital home, real property in Aiken, his vehicle, his retirement, and “all assets currently in his name and/or possession” whereas the wife would receive only her vehicle and “all assets currently in her name and/or possession,” as well as visitation with the parties’ child.  It further granted the husband sole care, custody, and control of the parties’ child and required him to pay the child’s uncovered medical expenses.  Neither party would be liable for alimony or responsible for the attorney’s fees of the other party.  The wife, who was not represented by counsel at the time, signed the agreement at the office of the husband’s attorney, apparently just before the hearing took place. 

At the hearing, the wife, still proceeding without counsel, waived her right to object to defects in the service of the summons and complaint.  She also waived her right to respond to the pleadings and agreed to proceed with the final hearing.  After questioning the wife about her understanding of the agreement and taking testimony from the husband, the family court, ruling from the bench, granted the divorce and approved the settlement agreement. 

Three days after the hearing but before the filing of the final order, the wife retained counsel and filed an answer and counterclaim in which she requested dismissal of the husband’s complaint, an equitable apportionment of the marital assets, and attorney’s fees and costs.  These responsive pleadings were filed within thirty days after the wife received the summons and complaint.  The wife’s attorney also requested the family court to “reconsider its findings before signing an order approving the agreement.”  The family court, however, after reviewing counsel’s request, declined to delay the matter, instructed the husband’s attorney to prepare an order granting the divorce and approving the agreement, and advised the wife’s attorney to file appropriate post-trial motions.  The final order approving the agreement was filed on July 22, 2003. 

The wife, through her attorney, then moved pursuant to Rule 52(b), SCRCP, for reconsideration of the final order, noting (1) she had only an eighth-grade education and poor reading skills; (2) she had been treated over the last six years for depression, anxiety, and stress; and (3) she was not provided with the husband’s financial declaration until she entered the courtroom at the commencement of the temporary hearing.  She further alleged that, because of these circumstances, along with the fact that she did not have an attorney at the hearing, she executed the agreement under duress.  In support of her motion, she submitted two affidavits, one from a vocational consultant and the other from a mental health counselor.  The vocational consultant attested to her tenth-grade reading and comprehension level.  The mental health counselor recounted her history of depression and other impairments and opined that her emotional problems, together with her lack of counsel, caused her to be “flooded with anxiety and irrational thinking” when she appeared before the family court.  The wife also included her own affidavit, in which she alleged she did not receive the husband’s financial declaration until “the middle of the hearing in the courtroom” and, until that time, was unaware of both the husband’s income and the property the parties had accumulated during their marriage.  She further alleged that, although she had reservations during the hearing about the husband’s financial declaration, she felt intimidated by the courtroom setting and was afraid to reveal her concerns to the court.

The family court issued an order denying the motion and granting the husband $1,292.29 in attorney’s fees and costs.  The order noted these costs were incurred by the husband in defending the motion. 

LAW/ANALYSIS

In the interest of judicial efficiency, the courts of this State have consistently encouraged litigants to reach agreements on issues arising out of the marital relationship. [1]   Before approving an agreement, however, the family court must ascertain that both parties have entered into the agreement freely and voluntarily and examine the fairness of the agreement under all the circumstances. [2]

1.  We disagree with the wife’s assertion of error in the family court’s determination that she entered into the settlement agreement freely and voluntarily.  In denying the wife’s Rule 52(b) motion, the family court, after reviewing the transcript of record from the hearing, found the wife gave responses indicating that she understood the legal proceedings and terms of the agreement, entered into the agreement freely and without coercion, and fully understood the consequences of the agreement.  After reviewing the record, we find no reason to hold otherwise. [3]

In our view, the affidavits the wife submitted, when considered with what transpired at the family court hearing, do not warrant a finding that she lacked the capacity to agree to the terms of the settlement. [4]   In response to the court’s inquiry as to whether she had entered into the agreement freely and voluntarily, the wife answered unequivocally in the affirmative.  She further acknowledged, without any apparent hesitation, that (1) no one had forced her to enter into the agreement against her will; (2) both at the time she signed the agreement and at the time of the hearing, she was not under the influence of drugs, alcohol, medication, stress, illness, or anything else that would have compromised her ability to understand either the agreement or the proceedings that were taking place; and (3) she had enough time to see an attorney had she desired representation and understood that the husband’s attorney did not represent her.  The family court found these responses adequate to support its determination that the wife freely and voluntarily entered into the settlement agreement, and we see no reason not to defer to this finding. [5]   In particular, we note that the wife had three days to review the separation agreement outside the presence of both the husband and his attorney before she voluntarily went alone to the office of the husband’s attorney to sign the agreement.

2.  We agree, however, with the wife that the family court should have held a hearing after she timely filed her answer and counterclaim to determine if the agreement was fair and reasonable under the circumstances.

We find instructive the early decision of Drawdy v. Drawdy, [6] wherein the supreme court discussed the responsibility of the family court when asked to approve a separation agreement:

We think it incumbent on the family court, where one party seeks to enforce and the other to repudiate a property settlement agreement to be incorporated into a subsequent divorce decree, to satisfy itself the agreement is a fair contractual end to the parties’ marital claims.  This cannot be done without examining the agreement in light of the economic circumstances and contributions of each party. [7]  

The divorce decree in this case states the agreement is “substantively fair and reasonable to the parties in light of their testimony”; however, it does not explain why the family court found such a disproportionate division of marital assets to be equitable.  The comments made from the bench by the presiding family court judge do little if anything to remedy this lack of information, let alone show that the agreement was examined in light of the economic circumstances and contributions of both the husband and the wife.  The wife, then, having timely filed an answer and counterclaim, should have been given the opportunity to present testimony on the allegations in her pleadings concerning equitable apportionment and attorney’s fees and costs, particularly her claims that she made material and non-material contributions to the acquisition of the assets of the marriage.

3.  Finally, the wife argues the family court erred in awarding the husband attorney’s fees for defending her post-trial motion.  In view of the beneficial results she obtained in this appeal, we remand this issue to the family court for further consideration. [8]  

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HEARN, C.J., and GOOLSBY and WILLIAMS, JJ., concur.


[1]   Forsythe v. Forsythe, 290 S.C. 253, 255, 349 S.E.2d 405, 406 (Ct. App. 1986).

[2]   Funderburk v. Funderburk, 286 S.C. 129, 131, 332 S.E.2d 205, 206 (1985).

[3]   See Cox v. Cox, 296 S.C. 414, 415, 373 S.E.2d 694, 694 (Ct. App. 1988) (“Although we have jurisdiction in divorce cases to find facts based on our own view of the evidence, we are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position than we are to evaluate their testimony.”).

[4]   See Wilson v. Ball, 337 S.C. 493, 497, 523 S.E.2d 804, 806 (Ct. App. 1999) (noting the burden of proof to establish incompetency is generally on the party alleging its existence).

[5]   See Polin v. Polin, 295 S.C. 129, 130, 367 S.E.2d 433, 434 (1988) (rejecting the appellant’s claim that he had not agreed to a property settlement freely and voluntarily and noting that both parties acknowledged otherwise at trial).

[6]   275 S.C. 76, 268 S.E.2d 30 (1980).  Although the supreme court decided Drawdy before issuing its landmark decision in Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983), we have found no reason to believe that Moseley or any subsequent decision has abrogated the duty of a family court to ascertain that a separation agreement is fair before approving it.

[7]   Drawdy, 275 S.C. at 77, 268 S.E.2d at 30 (emphasis added).

[8] See Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993) (wherein the supreme court reversed this court’s affirmance of an attorney’s fee award in a divorce case, noting that the petitioner had prevailed on numerous issues when the court of appeals decided the matter).