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2008-UP-581 - Smith v. Smith

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


Lucinda H. Smith, Appellant,

v.

Randy Smith, Respondent.


Appeal From Union County
Hon. Rochelle Y. Williamson, Family Court Judge


Opinion No. 2008-UP-581
Submitted October 1, 2008 – Filed October 15, 2008


AFFIRMED


David Michael Collins, Jr., and John C. Williams, Jr., both of Spartanburg, for Appellant.

Richard H. Rhodes, of Spartanburg, for Respondent.

PER CURIAM: This appeal arises after the family court required Randy Smith (Husband) pay fourteen percent of his military retirement pension to his ex-wife, Lucinda Smith (Wife).  Husband argues the family court erred 1) by modifying its prior order which equitably divided the parties’ marital assets and debts including a portion of his military retirement; 2) in modifying its prior order without taking testimony or receiving any evidence from the parties; 3) in awarding Wife attorney’s fees without taking any testimony or receiving any evidence on the issue or making any findings of fact or conclusions of law.  We affirm.[1]

1.  The family court did not err in requiring Husband to pay Wife fourteen percent of his military retirement.  Specifically, we find the family court retained jurisdiction over the case for the purpose of signing and filing a  Qualified Domestic Relations Order (QDRO), and in ordering Husband to pay fourteen percent of his military retirement, the family court was merely enforcing, not modifying, its prior order.  See Cannon v. Cannon, 275 S.C. 424, 425, 272 S.E.2d 179, 179-80 (1980) (holding the family court had authority to enforce its previous order, and the petition from which the new order arose was “merely a means of obtaining enforcement, rather than modification, of the original decree.”) (emphasis added); Dale v. Dale, 341 S.C. 516, 521, 534 S.E.2d 705, 707 (Ct. App. 2000) (affirming family court’s finding husband in contempt where husband clearly violated an equitable apportionment decree); Burns v. Burns, 323 S.C. 45, 48-49, 448 S.E.2d 571, 573 (Ct. App. 1994), aff’d, 314 S.C. 445, 445 S.E.2d 449 (1994)  (finding the family court did not abuse its discretion in holding husband in contempt of court for failure to honor settlement agreement provisions to pay credit card indebtedness of parties and second mortgage).  We further find no testimony or additional evidence beyond the pleading was required because in Husband’s answer and counterclaim, he admitted retiring from military service on December 31, 2004, and thereafter receiving $1,708.00 in monthly retirement.  See Ball v. Ball, 312 S.C. 31, 430 S.E.2d 533 (Ct. App. 1993) (holding non-vested, unvalued military pensions are marital property).   

2.  We find no error in the family court’s order requiring Husband pay $500 of Wife’s attorney’s fees where Husband failed to comply with the family court’s initial order requiring he file a QDRO and did not pay Wife any portion of his retirement pension beginning in January of 2005.  In order to receive her portion of Husband’s retirement, Wife was forced to bring an action and received beneficial results.  Furthermore, Husband’s current financial situation allows him to pay $500 in Wife’s attorney’s fees given he receives $1,708.00 in monthly retirement.  Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526, 535 (Ct. App. 1998) (“[W]hen an order from the family court is issued in violation of Rule 26(a), SCRFC, the appellate court ‘may remand the matter to the trial court or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.’”). 

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur.


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