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2007-UP-383 - Payne v. Payne

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

Jim Payne, Appellant,

v.

Kelly Payne, Respondent.


Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No. 2007-UP-383
Submitted September 1, 2007 – Filed September 20, 2007   


AFFIRMED


Jean Perrin Derrick, of Lexington, for Appellant.

Henry H. Taylor, of West Columbia, Katherine Carruth Link, of West Columbia, for Respondent.

PER CURIAM: In this family law action, Jim Payne (Husband) appeals the family court’s holding that it lacked jurisdiction to modify alimony payments.  The family court based its ruling on the language in the parties’ settlement agreement, which it found was clear, unequivocal, and unambiguous in stating that the agreement shall not be modified, altered, or amended by the family court.  We affirm.

FACTS

Kelly Payne (Wife) and Husband married in February 1992.  The parties have three children.  In May 2000, the parties separated and reached a comprehensive support and property settlement agreement.  That agreement was incorporated into the family court’s order, issued in December 2000, regarding the initial action for separate support and maintenance.  The final order of divorce approved the settlement agreement and incorporated it into the divorce decree in January 2003. 

The present action arises from Husband’s motion to terminate or reduce his monthly alimony obligation.  Wife argued the settlement agreement was not modifiable by the family court.  Wife filed a motion to dismiss Husband’s action pursuant to the modification language in the settlement agreement.   The family court granted Wife’s motion to dismiss, finding the language of the settlement agreement divested the court of subject matter jurisdiction to modify the parties’ agreement. 

Husband filed a motion to reconsider, which the family court denied.   This appeal follows.

STANDARD OF REVIEW

In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).  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).  Our broad scope of review does not relieve the appellant of his burden to convince this Court the family court committed error.  Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).

LAW/ANALYSIS

Husband argues the family court erred in holding it lacked subject matter jurisdiction to modify the parties’ settlement agreement.  Husband also asserts the family court erred in ignoring the doctrines of merger and law of the case.  We disagree.

I.  Alimony Modification

Questions concerning alimony rest within the sound discretion of the family court judge, whose conclusions will not be disturbed in the absence of an abuse of that discretion.  Stoddard v. Riddle, 362 S.C. 266, 268, 607 S.E.2d 97, 98 (Ct. App. 2004).  An abuse of discretion occurs when the family court’s decision is controlled by an error of law or is based on findings of fact having no evidentiary support.  Id. 

The family court has the authority to modify alimony agreements “unless the agreement unambiguously denies the court jurisdiction” to do so.  Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983).  “[O]nce an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.”  Degenhart v. Burriss, 360 S.C. 497, 500-01, 602 S.E.2d 96, 98 (Ct. App. 2004).  The parties may specifically “agree that the amount of alimony may not ever be modified by the court.”  Croom v. Croom, 305 S.C. 158, 161, 406 S.E.2d 381, 383 (Ct. App. 1991).

The parties’ agreement reads, in pertinent part:

EFFECTS OF DIVORCE

12.  . . .  This Agreement shall be offered in evidence in such action and if acceptable to the [c]ourt, shall be incorporated by reference into any Decree of Divorce that may be granted therein; provided, however, that not withstanding such incorporation, this Agreement shall not be modified, altered or amended by the [c]ourt, but shall be binding and conclusive as to those matters covered herein on the parties forever.

. . .

APPROVAL

16.  This Agreement shall be submitted to the [f]amily [c]ourt for the State of South Carolina for the purpose of having the [c]ourt review, approve and merge the terms and conditions of this Agreement and for the issuance of an appropriate Order approving the terms and conditions hereof and making the same the Order of the Court, and merging this Agreement with such Order.  The parties agree and acknowledge that this is a fully integrated and complete Separation Agreement with respect to all matters raised or those which could have been raised in the controversies between them.

In Moseley, our Supreme Court adopted a rule allowing parties to specifically agree that the court may never modify the terms of their agreement.  This decision acknowledged that the parties could contract out of the family court’s continuing jurisdictional supervision of their relationship.  Moseley, 279 S.C. at 353, 306 S.E.2d at 627. 

Furthermore, in Degenhart, this Court honored a settlement agreement which did not explicitly state the family court was devoid of jurisdiction to modify the alimony agreement, but rather it said the only way to modify the agreement was with the written consent of the parties.  We specifically stated there would be no requirement of “‘magic words’ for an unambiguous agreement to gain efficacy.” Degenhart 360 S.C. at 501, 602 S.E.2d at 98.  Therefore, this Court found the parties’ agreement non-modifiable.  Id.

The family court relied on Moseley and Degenhart in arriving at its decision that the agreement in this case denied it jurisdiction to modify alimony.  The family court found the language in the agreement was clear, unequivocal, and unambiguous in denying it the ability to modify the terms of the agreement.  Our review of the record and the applicable case law leads us to the same conclusion.  Therefore, we find the family court did not err in holding it lacked jurisdiction to modify the terms of the alimony agreement.

II.  Merger

Husband argues the concept of merger gives the family court jurisdiction to modify the terms of the agreement, which was adopted into the court’s order.  We disagree.

Merger is a word of art meaning “1. The act or an instance of combining or uniting. 2. [Contracts] The substitution of a superior form of contract for an inferior form, as when a written contract supersedes all oral agreements and prior understandings.” Black’s law dictionary 1002 (7th ed. 1999).  When an agreement is merged into a court’s decree, that decree “should be construed to effect the intent of both the judge and the parties.”  Messer v. Messer, 359 S.C. 614, 628, 598 S.E.2d 310, 318 (Ct. App. 2004). 

Traditionally, the family court was devoid of jurisdiction to modify agreements which were not merged into a court order.  Kelly v. Edwards, 276 S.C. 368, 369, 278 S.E.2d 773, 773-74 (1981).  However, the decision in Moseley “attempt[ed] to eliminate the words of art [such as merger] from domestic law.”  Moseley 279 S.C. at 353, 306 S.E.2d at 627.  Thus, the current state of the law is that words of art will not govern jurisdiction, but rather the intent of the parties and the clear, unambiguous language of the agreement will be honored by the court.  Id. at 352-53, 306 S.E.2d at 627; see Maxwell v. Maxwell, Op. No. 4290, --- S.C. ----, --- S.E.2d ----, 2007 WL 2415733 (Ct. App. 2007) (“While the family court normally has the authority to modify alimony, once an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.”)(internal quotations and citations omitted).  Therefore, we hold the family court did not err in finding it lacked jurisdiction to modify the alimony provisions of the parties’ agreement even though the language called for merger of that agreement into a court order.

III. Law of the Case

Husband argues the agreement is modifiable pursuant to the law of the case.  We disagree.

Law of the case refers to the idea that the terms of orders which are not appealed become the law of the case regardless of whether those terms are legally correct.  McAleese v. McAleese, 309 S.C. 548, 551, 424 S.E.2d 558, 559-60 (Ct. App. 1992).  Husband cites to an October 2002 order resulting from a rule to show cause.  The family court approved an agreement of the parties requiring Husband to pay alimony and child support arrearages in a lump sum and to continue his regular payments.  Husband relies on part of the October order which states, “[Husband] will pay [Wife] $3500 per month pursuant to the agreement until or unless the amount is modified by a court of competent jurisdiction.”  Neither the agreement nor the order of the court, however, altered the terms of the monthly payments or the provision that disallowed the court to modify the alimony. 

Subsequent to the contempt order of October 2002, the parties divorced in January 2003 and the prior order from December 2000, which prohibited the modification of alimony, was incorporated in the Divorce Decree.   

Pursuant to the original order, the family court had jurisdiction to enforce the alimony and child support payments through its contempt powers.  The agreement in the December 2000 order, which was subsequently incorporated in the January 2003 Divorce Decree, is clear and specific that the alimony is not modifiable by the court.  The agreement states:

12.  . . .  This Agreement shall be offered in evidence in such action and if acceptable to the [c]ourt, shall be incorporated by reference into any Decree of Divorce that may be granted therein; provided, however, that not withstanding such incorporation, this Agreement shall not be modified, altered or amended by the [c]ourt, but shall be binding and conclusive as to those matters covered herein on the parties forever.

Although in the absence of this agreement the family court would have had jurisdiction to modify the alimony payments, “once an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.”  Degenhart, 360 S.C. at 500-01, 602 S.E.2d at 98.  Therefore, once this agreement was merged into the Divorce Decree the family court no longer had jurisdiction to modify it. The contempt order of October 2002 did not attempt to modify the alimony agreement, it merely recited the total past due amount of alimony and child support.  The order made no reference that the prior agreement was being changed to allow future modification of alimony by the court. 

The parties’ agreement is clear and unambiguous.  The terms of that agreement deny the family court jurisdiction to modify Husband’s alimony payments.  Accordingly, the family court did not err in holding it lacked jurisdiction to alter Husband’s alimony payments. 

Accordingly, the family court’s decision is

AFFIRMED.[1]

STILWELL, SHORT, and WILLIAMS, JJ., concur.


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