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2011-UP-227 - Dulaney v. Dulaney

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

Melissa Dulaney, Respondent,

v.

Charles M. Dulaney, Appellant.


Appeal From Charleston County
 Frances  P. Segars-Andrews, Family Court Judge


Unpublished Opinion No. 2011-UP-227
Heard April 7, 2011 – Filed May 18, 2011   


AFFIRMED


Gregory Samuel Forman, of Charleston, for Appellant.

James B. Richardson, Jr., of Columbia, for Respondent.

PER CURIAM:  Appellant, Charles M. Dulaney (Father), appeals the decision of the family court ordering Father to reimburse Melissa Dulaney (Mother) $27,720 for two years of tuition at a private school incurred for their child's education.  Father asserts (1) the family court erred in allowing Mother to orally amend her rule to show cause to seek reimbursement of tuition for both the 2005-2006 and 2006-2007 school years; (2) the family court erred in finding Father owed Mother back tuition, because Father provided substantial evidence the parties had reached an agreement otherwise and Father presented substantial evidence the elements of equitable estoppel applied; (3) the family court erred in finding the parties' e-mails indicated an agreement Father would reimburse Mother for the contested tuition payments at a later date because there was no language in the e-mails to support such a finding; (4) the family court erred in refusing to reopen the case to take further testimony on the issue of Mother's credibility where Mother's credibility was critical to Father's arguments regarding his equitable estoppel defense and her requested oral amendment, and the court limited Father's cross examination of Mother and prohibited cross-examination of Mother's counsel on the issue; and (5) he is entitled to an award of fees and costs if this court reverses the family court's determination on tuition reimbursement.  We affirm.

1.  We find no error in the family court allowing Mother to orally amend her pleading.  It is well established that a motion to amend is addressed to the sound discretion of the trial judge, and that the party opposing the motion has the burden of establishing prejudice.  Hardaway Concrete Co. v. Hall Contracting Corp., 374 S.C. 216, 227, 647 S.E.2d 488, 493-94 (Ct. App. 2007).  Courts have wide latitude in allowing amendment of pleadings.  Berry v. McLeod, 328 S.C. 435, 450, 492 S.E.2d 794, 802 (Ct. App. 1997).  While this power should not be used indiscriminately or to prejudice or surprise another party, the court's decision to allow an amendment is within its sound discretion, and will rarely be disturbed on appeal.  Id.  In considering potential prejudice to the opposing party, the court should consider whether that party has had the opportunity to prepare for the issue now being formally raised.  Armstrong v. Collins, 366 S.C. 204, 230, 621 S.E.2d 368, 381 (Ct. App. 2005).  Here, it is clear that Father continued to present this equitable estoppel argument to the court in regard to both years, and he presented the same evidence in support of this argument on the 2005-2006 school year's tuition as he did on the 2006-2007 school year.  Further, Father does not suggest any additional evidence he could have presented but was prevented from presenting by reason of the amendment at trial.  Accordingly, we find Father failed to establish prejudice.

2.  We find no merit to Father's assertion that the family court erred in determining he owed Mother back tuition because he proved his equitable estoppel defense.  In appeals from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence.  Dickert v. Dickert, 387 S.C. 1, 5-6, 691 S.E.2d 448, 450 (2010).  However, this broad scope of review does not require the reviewing court to disregard the findings of the family court, as appellate courts should be mindful that the family court, who saw and heard the witnesses, sits in a better position to evaluate credibility and assign comparative weight to the testimony.  Id. at 6, 691 S.E.2d at 450.  In Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007), the court stated the following essential elements of equitable estoppel as related to the party being estopped:  (1) conduct which amounts to a false representation, or conduct which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention that such conduct shall be acted upon by the other party; and (3) actual or constructive knowledge of the real facts; and provided as to the party asserting estoppel it is necessary to show:  (1) lack of knowledge, and the means of knowledge, of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change of position in reliance on the conduct of the party being estopped.  Id. at 84-85, 650 S.E.2d at 470.  The court further noted equitable estoppel is based on affirmative conduct between the parties.  Id. at 85, 650 S.E.2d at 470.  In looking at the affirmative conduct between the parties, the record shows that Mother specifically testified she and Father had a financial arrangement for his payment of the tuition, and though they had discussed that it would be difficult for him to make the payments when Father started law school, that she had communicated with Father in an effort to have him pay the tuition, and that Mother informed Father that she understood for his first year in law school he "needed to get his feet on the ground," but she still expected him to catch up on the payments in the future.  We find the issue of credibility was properly considered by the family court, and the court's order implicitly reflects a determination Mother was credible on the issue of the parties' agreement concerning the tuition.

3.  In regard to Father's argument concerning the family court's finding regarding the e-mails between the parties, we first note, as to Father's assertion that the family court erred in failing to correct any discrepancy between the court's instructions in its memo and the final written order, Father failed to set forth this issue in his Statement of the Issues on Appeal.  Because this issue was not included in Father's Statement of the Issues on Appeal, we need not address this argument on the merits. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.").  Moreover, this argument advanced in Father's brief makes no reference to any supporting authority.  See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority."); see also Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.")  At any rate, the family court declined to make this change as requested in Father's motion to amend.  Thus, it is clear that the court found the final written order properly set forth the court's finding in this regard.  See Doe v. Doe, 324 S.C. 492, 501, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding judgments are not final until written and entered, and until written and entered, the judge retains discretion to change his mind and amend his ruling accordingly).  As to Father's argument that the family court erred in finding the e-mails between the parties indicated an agreement that Father would reimburse Mother the contested tuition payments at a later date, we note a clear reading of the order shows the family court found the e-mails between the parties indicate only there may have been an agreement that the parties intended the Father pay the tuition later.  Further, the e-mails, together with Mother's testimony that she informed Father she expected him to catch up with the tuition at some point in time, support this conclusion.  Thus, considering the record as a whole, the preponderance of evidence supports the family court's finding in this regard.

4. We find there was no abuse of discretion in the family court's refusal to reopen the case to take additional testimony.  "The decision whether to reopen a record for additional evidence is within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of that discretion."  Brenco v. S.C. Dep't of Transp., 377 S.C. 124, 127, 659 S.E.2d 167, 169 (2008).  It is well established that a trial judge enjoys considerable latitude and discretion in deciding whether to allow a party to reopen his case, and this decision will not be disturbed on appeal unless the opposing party was prejudiced thereby.  Brown v. La France Indus., 286 S.C. 319, 324-25, 333 S.E.2d 348, 351 (Ct. App. 1985).  A review of the record reveals Father's attorney questioned Mother extensively regarding the change made from the amount sought in the initial rule to show cause to the lower amount sought in the amended rule to show cause.  Thus, Father's attorney was not limited from examining Mother on the issue. At any rate, any additional testimony on the matter would have, at best, been marginally relevant, and Father suffered no prejudice.  See  Fields v. Reg'l.  Med. Ctr. Orangeburg, 363 S.C. 19, 25-26, 609 S.E.2d 506, 509 (2005) (holding the admission or exclusion of evidence in general is within the sound discretion of the trial court, and reversal based on the admission or exclusion of evidence is not warranted absent a showing of both error and resulting prejudice).  See also State v. Johnson, 338 S.C. 114, 124-25, 525 S.E.2d 519, 524 (2000) (noting considerable latitude is allowed in cross-examination to test a witness's credibility, but a trial court may impose reasonable limits on cross-examination based upon concerns about, among other things, harassment or interrogation that is repetitive or only marginally relevant; an appellate court will not disturb a trial court's ruling concerning the scope of cross-examination of a witness to test his or her credibility absent a manifest abuse of discretion).

5.  Father contends, should this court reverse the finding that he is required to reimburse Mother for the tuition or that he is only responsible for the 2006-2007 tuition, the court should grant Father all of his fees for defending the rule to show cause, or should remand the matter back to the family court for an award of fees.  Thus, this issue is contingent upon this court's reversal on the award of tuition reimbursement.  Because we do not find the family court's decision on reimbursement of tuition should be reversed, there is no basis to reverse or remand on the issue of attorney's fees and costs.

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

AFFIRMED.

FEW, C.J., and HUFF and PIEPER, JJ., concur.