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2005-UP-082 - Knight v. Knight

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

Debra M. Knight,        Respondent,

v.

Jack Knight, Jr.,        Appellant.


Appeal From Spartanburg County
Aphrodite K. Konduros, Family Court Judge


Unpublished Opinion No. 2005-UP-082
Submitted February 1, 2005 – Filed February 4, 2005


AFFIRMED


Richard H. Rhodes, of Spartanburg, for Appellant.

Brendan M. Delaney, of Spartanburg, for Respondent.


PER CURIAM:  Debra M. Knight (Wife) initiated this domestic relations action against Jack Knight, Jr. (Husband).  The family court awarded Wife a divorce on the ground of adultery, ordered Husband to pay alimony, and made an equitable distribution of the parties’ assets.  Husband made a Rule 60(b) motion which was denied.  He appeals the denial of this motion.  We affirm. [1]  

FACTS

On October 21, 2002, the family court granted Wife a divorce on the ground of Husband’s adultery.  The court’s order awarded Wife the marital home and a machine shop located adjacent to the home.  Additionally, Wife was given responsibility for both mortgages on the residence as well as a $20,000 loan obtained to purchase machinery.  The parties agreed the value of the home was $68,000.  Husband was ordered to pay $650 per month in permanent, periodic alimony, and Wife was awarded attorney’s fees.  

Husband did not appeal.  However, on December 20, 2002, Husband filed a motion pursuant to Rule 60(b), SCRCP.  Therein, Husband asserted the following: (1) the valuation of the marital home was erroneous; (2) the valuation of the mortgages on the home was erroneous; (3) the treatment of the loan for business equipment as marital debt was erroneous; (4) the valuation of Husband’s pension plans was erroneous; (5) the valuation and distribution of the parties’ personal property was erroneous; (6) Husband should have been given credit for certain payments towards marital debt; (7) the valuation of the machine shop equipment was erroneous; (8) due to Husband’s psychological condition at the time of the hearing, he was unable “to completely comprehend the proceedings and to assist in the presentation of the case as he should have been”; (9) Wife had not yet paid sums she agreed to pay for the appraisals of the home and machine shop equipment; and (10) the division of marital assets was erroneous.

The family court denied Husband’s Rule 60(b) motion, with the sole exception that Wife was ordered to pay Husband the $100 she owed him for the appraisals of the marital home and the machine shop equipment.  Husband appeals this order, contending the court should have granted his motion under Rule 60(b).  We affirm. 

LAW/ANALYSIS

Rule 60(b), SCRCP, provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1)     mistake, inadvertence, surprise, or excusable neglect;

(2)     newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3)     fraud, misrepresentation, or other misconduct of an adverse party;

(4)     the judgment is void;

(5)     the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

“[M]otions for relief under Rule 60(b) are addressed to the discretion of the court and appellate review is limited to determining whether the trial court abused its discretion.”  Saro v. Ocean Holiday P’ship, 314 S.C. 116, 124, 441 S.E.2d 835, 840 (Ct. App. 1994) (citations omitted).  “A party seeking to set aside a judgment pursuant to Rule 60(b) has the burden of presenting evidence entitling him to the requested relief.”  Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 46-47, 590 S.E.2d 502, 504 (Ct. App. 2003) (citing Bowers v. Bowers, 304 S.C. 65, 403 S.E.2d 127 (1991)).  An abuse of discretion arises where the trial judge was controlled by an error of law, or where her order is based on factual conclusions that are without evidentiary support.  Tri-County Ice & Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990).

Husband’s Rule 60(b) motion does not specify upon which of the five enumerated grounds for relief his motion is based.  Husband fails to demonstrate any error of law or unsupported conclusion in the court’s final decree.  Thus, he has not met his burden.  Further, his assertions of error do not come within the ambit of any of the Rule 60(b)’s five reasons for granting relief.  Accordingly, we hold the family court judge was within her discretion in denying the Rule 60(b) motion. 

In his brief, Husband states that “[a] substantial portion of the Appellant’s argument is based on the neglect of his attorney.”  He specifically contends: “Appellant’s trial counsel did not present a completed financial declaration on behalf of Appellant.  In addition, counsel did not present basic information such as an inventory of the property.  Also, Appellant’s counsel stipulated to documents which were not accurate.  Finally, counsel failed to present pertinent information relating to equitable apportionment.” 

Initially, we note that Husband’s Rule 60(b) motion did not raise the issue of his trial counsel’s performance.  Issues not raised and ruled upon in the trial court will not be considered on appeal.  Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 598 S.E.2d 712 (2004); I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).  Nevertheless, we find this contention meritless.  In Greenville Income Partners v. Holman, 308 S.C. 105, 417 S.E.2d 107 (1992), we held the failure of an attorney to interpose available defenses did not amount to the kind of mistake, surprise, inadvertence, and excusable neglect contemplated by Rule 60(b).  Id. at 107, 417 S.E.2d at 108.  “The acts of an attorney are directly attributable to and binding on his client.”  Id. (citations omitted).  Consequently, we disagree with Husband that his trial counsel’s performance justifies reversal on the Rule 60(b) issue. 

CONCLUSION

For the foregoing reasons, the decision of the family court is 

AFFIRMED.

ANDERSON, BEATTY, and SHORT, JJ., concur.


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