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2011-UP-181 - Marshall v. Marshall

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Joseph A. Marshall, Appellant,

   v.

Carrie C. Marshall, Respondent.


Appeal From Aiken County
Dale Moore Gable, Family Court Judge


Unpublished Opinion No. 2011-UP-181
Submitted February 1, 2011 – Filed April 19, 2011   


REVERSED AND REMANDED


Leon E. Green, of Aiken, for Appellant.

Gregory P. Harlow, of Aiken, for Respondent.

PER CURIAM:  Joseph A. Marshall (Husband) appeals the family court's denial of his Rule 60(b), SCRCP, motion.  Husband argues the family court erred in (1) denying his motion to set aside a qualified domestic relations order (QDRO) on the ground the judgment was satisfied and (2) failing to address the merits of his motion because the issue warranted equitable relief.  We reverse and remand.[1]

Rule 60(b)(5), SCRCP, states:

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 [if] 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. 

We hold the family court erred in dismissing Husband's motion on the basis it was an improper procedural vehicle to address Husband's concerns.  Rule 60(b)(5) expressly allows a party to petition the court to set aside compliance with an order if a judgment has been satisfied.  Here, Husband filed his Rule 60(b)(5) motion to seek relief from enforcement of the QDRO because he alleged he previously complied with the May 8, 2007 consent order by transferring $273,975 to Carrie C. Marshall through an individual retirement account.  Therefore, an open legal question exists as to whether Husband has fully satisfied the terms of the consent order, an issue that is directly addressed by Rule 60(b)(5).  Accordingly, we reverse the family court's ruling and remand the case to the family court for a hearing on the merits of Husband's Rule 60(b)(5) motion.   

REVERSED AND REMANDED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


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