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2012-MO-003 - Rachels v. Kelly

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 Supreme Court


James P. Rachels, Petitioner,

v.

Kathleen M. Kelly, Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From Lexington County
Kellum W. Allen, Family Court Judge


Memorandum Opinion No. 2012-MO-003
Submitted January 26, 2012 – Filed March 7, 2012  


AFFIRMED AS MODIFIED


James P. Rachels, of Ridgecrest, pro se, for Petitioner.

James W. Corley, of Columbia, for Respondent.


PER CURIAM:  Affirmed as modified pursuant to the following authorities.  As to the issue of standing, we find that the issue was preserved but that Respondent had standing to bring suit and Petitioner was properly joined as defendant.  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733-34 (1998); Rule 8, SCRCP. 

As to whether requiring payment by Petitioner to Respondent based upon the settlement agreement that was incorporated into the divorce decree was proper, we find that the warranty of good faith implied in the parties’ agreement included Petitioner’s agreement to remit to Respondent any sums the parties intended as her property settlement in the case of failure of the designated means of payment.  Southern Realty and Const. Co., Inc. v. Bryan, 290 S.C. 302, 311-12, 350 S.E.2d 194, 199 (Ct. App. 1986). 

As to whether the Uniformed Services Former Spouse Protection Act bars enforcement of the settlement agreement, we find that this issue is not preserved for the Court’s review.  Carroway v. Carolina Power & Light Co., 226 S.C. 237, 249, 84 S.E.2d 728, 734 (1954). 

As to whether the monthly payment was calculated appropriately, we find that the family court failed to incorporate the parties’ intent that the sum be paid in pre-tax dollars and that the sum should not have included cost of living adjustments.  Applying that intent, we find that Respondent was due the monthly sum of $389.09 less seventeen percent, or $322.94 per month, from the date of Petitioner’s retirement.  The uncontested finding of the family court was that Petitioner had paid Respondent a total of $1,261.92 as of October 27, 2008.  Petitioner retired on November 1, 2005.  Therefore, his total arrearage as of May 1, 2012, is $25,512.26, reduced by any sums Petitioner has paid Respondent since October 27, 2008.  Petitioner is ordered to pay Respondent $322.94 per month beginning May 1, 2012, and terminating upon the death of either party.  Petitioner is further ordered to pay Respondent an additional $500.00 per month beginning May 1, 2012, until the arrearage is paid in full.

TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur. HEARN, J., not participating.