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2011-UP-513 - Hentges v. Hentges

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


Narda Ray Hentges, Respondent/Appellant,

v.

Thomas J. Hentges, Appellant/Respondent.


Appeal From Charleston County
Jack Alan Landis, Family Court Judge
Judy L. McMahon, Family Court Judge


Unpublished Opinion No.   2011-UP-513
Heard September 15, 2011 – Filed November 28, 2011


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Jack D. Cordray, of Charleston, for Appellant/Respondent.

Margaret D. Fabri, of Charleston, for Respondent/Appellant.

PER CURIAM:  This cross-appeal arises from two orders of the family court, both of which interpret and enforce a court-approved marital separation agreement (the Agreement) between Thomas Hentges (Husband) and Narda Hentges (Wife).  We affirm in part, reverse in part, and remand.

1.  As to whether Husband violated the Agreement by failing to give Wife a raise in salary in proportion to the 17.3% increase to Husband's salary, we find the Agreement ambiguous.  See Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 242, 672 S.E.2d 799, 803 (Ct. App. 2009) (providing an agreement is ambiguous when the terms of the agreement are reasonably susceptible to more than one interpretation).  The salary provision in the Agreement can reasonably be interpreted as providing the parties' intent for Wife to receive a raise in salary proportional to any increases to Husband's income occurring either after January 1, 2003, the date commencing the five-year period Wife was to remain on the payroll of Animal Medical West, or after February 19, 2003, the date the parties executed the Agreement.  In light of this ambiguity, the family court erred by finding Husband in willful contempt.  See Smith v. Smith, 359 S.C. 393, 397, 597 S.E.2d 188, 189 (Ct. App. 2004) (finding husband not in willful contempt when court order was ambiguous); see also Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind. App. 2009) ("A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.  Otherwise, a party could be held in contempt for obeying an ambiguous order in good faith." (internal quotation marks omitted)); Evans v. Evans, 2011 WL 1566017, at *2 (Miss. App. 2011) (holding a defendant can rebut a prima facie case of contempt by showing an inability to pay, that the default was not willful, that the provision violated was ambiguous, or that performance was impossible).  Therefore, we reverse the family court's finding Husband in willful contempt and remand for further proceedings for the family court to make specific findings regarding the controlling date of the salary provision and to allow the family court to enforce the Agreement if it finds the parties intended January 1, 2003, to be the controlling date.

2.  As to whether the family court erred by finding Husband was not entitled to receive a setoff for the reduced equity in the marital home due to Wife's refinancing of the home, we find Husband's arguments abandoned on appeal.  See Fields v. Melrose Ltd. P'ship, 312 S.C. 102, 106 n.3, 439 S.E.2d 283, 285 n.3 (Ct. App. 1993) ("[A]n issue is deemed abandoned on appeal and, therefore, not presented for review, if it is argued in a short, conclusory statement without supporting authority." (citation omitted)).

3.  As to whether the family court erred by awarding Wife $12,957.00 in attorney's fees on Wife's rule to show cause, we remand the award for reconsideration after making the findings herein regarding the salary provision.  See Reiss v. Reiss, 392 S.C. 198, 210, 708 S.E.2d 799, 805 (Ct. App. 2011) ("In deciding whether to award attorney's fees and costs, the family court should consider '(1) the party's ability to pay his/her own attorney's fee; (2) beneficial results obtained by the attorney; (3) the parties' respective financial conditions; [and] (4) effect of the attorney's fee on each party's standard of living.'" (quoting E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992))); id. ("In determining a reasonable attorney's fee the family court should consider '(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; [and] (6) customary legal fees for similar services.'" (quoting Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991))).

4.  As to whether the family court erred by granting Wife's motion to compel enforcement of the money judgment for underpaid wages, we find the family court correctly found the monies awarded and due to Wife by court order on the rule to show cause were in the nature of back support and, therefore, not automatically stayed upon appeal.  See  Rule 241(a), SCACR ("As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order, judgment, decree or decision on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree or decision."); Rule 241(b)(6), SCACR (providing an exception to the general rule for family court orders regarding a child or requiring payment of support for a spouse or child as provided in section 63-3-630 of the South Carolina Code).

5.  As to whether the family court erred by not allowing Husband to post monies with the court to secure payment of the judgment, we find no error because there was not a question of entitlement to the funds at the time Wife moved to compel payment.  See Rule 67, SCRCP (allowing a judgment debtor to avoid further accrual of post judgment interest pending the resolution of an appeal from the judgment by depositing the judgment with the court); S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 369 S.C. 150, 153, 631 S.E.2d 533, 535 (2006) ("The granting of leave to deposit money with the court pursuant to Rule 67, SCRCP is a matter within the discretion of the trial court and will not be overturned absent an abuse of that discretion." (citation omitted)).

6.  As to whether the family court erred by awarding Wife prejudgment interest on the money judgment for underpayment of wages, we find Wife did not waive her right to seek prejudgment interest.  See Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989) (holding a motion for prejudgment interest filed after the entry of judgment constitutes a Rule 59(e), SCRCP, motion to alter or amend the judgment).  However, we remand the award for reconsideration after making the findings herein regarding the salary provision.  See Babb v. Rothrock, 310 S.C. 350, 353, 426 S.E.2d 789, 791 (1993) ("The law allows prejudgment interest on obligations to pay money from the time when, either by agreement of the parties or operation of law, the payment is demandable, if the sum is certain or capable of being reduced to certainty." (citation omitted)).

7.  As to whether the family court erred by awarding Wife $4,504.62 in attorney's fees in connection to Wife's motion to compel, we find no error.[1]  See High v. High, 389 S.C. 226, 249, 697 S.E.2d 690, 702 (Ct. App. 2010) (providing the award of attorney's fees in a domestic action rests within the sound discretion of the family court and will not be reversed absent an abuse of discretion); Dickert v. Dickert, 387 S.C. 1, 10–11, 691 S.E.2d 448, 453 (2010) (holding the family court did not abuse its discretion in awarding attorney's fees when it properly considered the E.D.M. and Glasscock factors).

8.  As to whether the family court erred by finding Husband was not required to reimburse Wife for underpaying the mortgage on the marital home, we find the family court correctly determined Husband was not responsible under the Agreement for paying the increase in mortgage payments that occurred from Wife's refinancing of the marital home.  See Miles v. Miles, 393 S.C. 111, 117, 711 S.E.2d 880, 883 (2011) (holding the interpretation of marital agreements is a matter of contract law); Nicholson v. Nicholson, 378 S.C. 523, 532, 663 S.E.2d 74, 79 (Ct. App. 2008) ("The court's only function with an agreement that is clear and capable of legal construction is to interpret its lawful meaning and the intention of the parties as found within the agreement and to give them effect." (citation omitted)).

9.  As to whether the family court erred by granting Husband a setoff in the amount of $23,875.00 for money Husband paid to repair Wife's non-marital home, and a setoff in the amount of $2,800.00 for money that Husband paid for therapy expenses, we find no error.  See Smith v. Smith, 386 S.C. 251, 261, 687 S.E.2d 720, 726 (Ct. App. 2009) ("[N]o family court rule governs the construction of pleadings."); Rule 2(a), SCRFC (providing the rules of civil procedure apply in domestic relations actions with limited exceptions); Rule 8(c), SCRCP (requiring a party to set forth any affirmative defenses in the pleadings); Broome v. Watts, 319 S.C 337, 342, 461 S.E.2d 46, 49 (1995) ("Rule 8(c) does not list setoff as an affirmative defense which must be pled in order to be pursued at trial."); Rule 8(f), SCRCP (providing all pleadings must be construed to provide substantial justice to all parties); Smalls v. S.C. Dep't of Educ., 339 S.C. 208, 219, 528 S.E.2d 682, 688 (Ct. App. 2000) ("The trial court's jurisdiction to set off one judgment against another is equitable in nature and should be exercised when necessary to provide justice between the parties." (citation omitted)).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


[1] This award of attorney's fees is completely separate from the award of attorney's fees in connection with Wife's rule to show cause.