Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2008-UP-221 - Manigault v. Manigault
THE STATE OF SOUTH CAROLINA

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

Janice Manigault, Appellant,

v.

Charles Howard Manigault, Respondent.


Appeal from Charleston County
Jocelyn B. Cate, Family Court Judge


Unpublished Opinion No. 2008-UP-221
Submitted April 1, 2008 – Filed April 11, 2008


AFFIRMED


Veronica G. Small, of North Charleston, for Appellant.

Gregory Forman, of Charleston, for Respondent.


PER CURIAM:  Janice Manigault (Wife) appeals the family court’s denial of her motion to reconsider reopening her divorce action against Charles Howard Manigault (Husband). We affirm.[1]

FACTS

On August 27, 2002, Wife brought an action for divorce and equitable distribution from Husband on the basis of adultery, after twenty-seven years of marriage.  Husband retained counsel, and on November 15, 2002, filed an answer and counter-claim, requesting an equitable distribution of the marital assets.

At a pretrial hearing held August 30, 2005, the parties were instructed to enter into mediation prior to trial and trial date was set for January 5, 2006.  While Husband’s counsel attended the pretrial hearing, Husband was not present.  On December 12, 2005, Husband’s counsel filed an ex-parte motion and order to be relieved as Husband’s counsel.  Mediation took place December 29, 2005, seventeen days after Husband’s counsel’s motion to be relieved as counsel was granted.  Nevertheless, the parties reached an agreement during mediation.  This agreement was reduced to writing by the mediator in a letter, but not signed by either party.  Husband and Wife anticipated this letter would be published and approved by the family court at the final hearing.

Husband failed to appear at the final hearing, and did not request a continuance.  Wife informed the family court an agreement was reached at mediation, but did not inform the court the agreement was memorialized in a letter by the mediator.  Instead, the Wife went forward with the trial in Husband’s absence.

Husband was served by mail the final order and decree of divorce, and subsequently filed a notice of motion and motion pursuant to Rule 59, SCRCP, to vacate the final order and decree.  A hearing on Husband’s motion was held June 12, 2006, and the record was left open to receive an affidavit from Husband’s original counsel.  On July 28, 2006, the family court granted Husband’s motion to vacate and reopen the case, stating:

After reviewing the file, the affidavits submitted and hearing argument of counsel, this court issues the following order:

1. This court grants [Husband’s] motion to vacate the final order and reopen the case.  The court does this because although the court was informed at the January 5, 2006 [sic] final hearing that the parties may have reached a mediated agreement, it was not revealed that there was a December 29, 2005 [sic] letter from the mediator, Kathleen Moraska Ferri memorializing the terms of the Agreement.  Had the court been informed of this, it would have briefly stayed the proceedings in an attempt to locate [Husband] and determine if the mediated agreement was in fact the parties’ agreement.  It was further represented to the Court by [Wife’s] counsel that she in fact hoped that the mediated agreement would be placed on the record that day.
 
2. If the parties are willing to have the mediated agreement become the final order of the court, they may set a hearing to have that agreement approved.
 
3. If either party is unwilling to have the mediated agreement become the final order of the court, this matter shall be set for an expedited pre-trial to set this matter for trial.

Wife filed a motion to reconsider the order to reopen and to allow the final order and decree of divorce to remain in full force and effect, alleging there was no legal basis for granting a new trial.  The family court denied Wife’s motion to reconsider.

DISCUSSION

Wife contends the family court erred by denying her motion to reconsider its grant of Husband’s motion to vacate the final order and reopen the case.  We disagree.

“We will reverse the family court’s granting of a new trial only where the grant constituted an abuse of discretion amounting to an error of law.”  Blejski v. Blejski, 325 S.C. 491, 497, 480 S.E.2d 462, 466 (Ct. App. 1997); Howard v. Roberson, ___ S.C. ___, 654 S.E.2d 877, 880 (Ct. App. 2007) (“‘The grant or denial of new trial motions rests within the discretion of the trial judge and his discretion will not be disturbed on appeal unless his findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law.’”) (quoting Chapman v. Upstate RV & Marine, 364 S.C. 82, 88-89, 610 S.E.2d 852, 856 (Ct. App. 2005) (citing Vinson v. Harley, 324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct. App. 1996))); Trivelas v. S.C. Dep’t of Transp., 357 S.C. 545, 553, 593 S.E.2d 504, 508 (Ct. App. 2004); Henson v. Int’l Paper Co., 358 S.C. 133, 146, 594 S.E.2d 499, 506 (Ct. App. 2004) (Anderson, J., concurring in part and dissenting in part) (quoting Stevens v. Allen, 336 S.C. 439, 446, 520 S.E.2d 625, 628-629 (Ct. App. 1999) (citing Vinson v. Hartley, 324 S.C. 389, 404, 477 S.E.2d 715, 722 (Ct. App. 1996))); State v. Taylor, 348 S.C. 152, 159, 558 S.E.2d 917, 920 (Ct. App. 2001) (“It is well settled that the grant or refusal of a new trial is within the sound discretion of the trial judge.”) (citing State v. Simmons, 279 S.C. 165, 166, 303 S.E.2d 857, 858 (1983)).  See Kennedy v. Griffin, 358 S.C. 122, 127, 595 S.E.2d 248, 250 (Ct. App. 2004) (“The denial of a motion for a new trial is within the trial judge’s discretion and will not be reversed on appeal absent an abuse of discretion.”); Waring v. Johnson, 341 S.C. 248, 256, 533 S.E.2d 906, 910 (Ct. App. 2000).

“[T]he exercise of that discretion must be in accord with sound legal principles and practice. . . . [V]erdicts found after regular and legal trial in a competent court ought not lightly be disturbed.”  Harrington v. Nicholson, 182 S.C. 38, 41, 188 S.E. 372, 373 (1936).  “An abuse of discretion arises when the trial court was controlled by an error of law or when the order is without evidentiary support.”  Hillman v. Pinion, 347 S.C. 253, 255, 554 S.E.2d 427, 429 (Ct. App. 2001); Miller v. Miller, 375 S.C. 443, 452, 652 S.E.2d 754, 759 (Ct. App. 2007) (quoting Townsend v. Townsend, 356 S.C. 70, 73, 587 S.E.2d 118, 119 (Ct. App. 2003)).

In the instant case, the judge granted a new trial when she learned the parties’ mediated agreement was reduced to writing by the mediator but not presented to the court at trial by Wife’s counsel in Husband’s absence.  The judge reasoned she would have briefly stayed the proceedings to contact Husband to gain his consent.  Given the judge’s delayed knowledge of the written mediation agreement, it was within the court’s discretion to grant a new trial.  We find no abuse of discretion in this situation.  Because the court did not abuse its discretion in granting a new trial, we elect not to address Husband’s arguments to ignore Wife’s July 28, 2006, and October 13, 2006, affidavits and his alleged lack of notice.

Accordingly, we

AFFIRM.

ANDERSON, SHORT and THOMAS, JJ., concur.


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