Elkachbendi v. Elkachbendi ( 2012 )

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
Mokhtar Elkachbendi, Appellant/Respondent,
v.
Anne K. Elkachbendi, Suzanne H. Ruth, Individually and
as Trustee of the Suzanne H. Ruth Revocable Trust UDO
February 25, 2003, Daniel Ruth and Suzanne H. Ruth
Revocable Trust, Defendants,
Of Whom Anne K. Elkachbendi is
Respondent/Appellant,
v.
Nouhza Elkachbendi Warning, Third-Party Defendant.
Appellate Case No. 2010-171286
Appeal From Charleston County
Paul W. Garfinkel, Family Court Judge
Unpublished Opinion No. 2012-UP-479
Heard June 21, 2012 – Filed August 15, 2012
AFFIRMED IN PART, DISMISSED IN PART, and
REVERSED IN PART
Gregory S. Forman, of Charleston, for
Appellant/Respondent.
David L. DeVane and Theresa Wozniak Jenkins, both of
Ameika DeVane & Mack, of Summerville, for
Respondent/Appellant.
PER CURIAM: In this cross-appeal, Mokhtar Elkachbendi (Husband) appeals
from two orders of the family court: (1) the first, filed on May 6, 2010, granted
Anne Elkachbendi (Wife) attorney's fees and costs related to the parties' divorce
and (2) the second, filed on August 24, 2010, dismissed Husband's Rule 59(e),
SCRCP, motion to alter or amend the May 6, 2010 order as untimely. Wife cross-
appeals from the family court's August 24, 2010 order, contending the family court
erred in denying her request for attorney's fees and costs incurred in responding to
Husband's Rule 59(e)motion. We affirm in part, dismiss in part, and reverse in
part.
1. In deciding an appeal from the family court, "this Court may find facts in
accordance with its own view of the preponderance of the evidence." Miles v.
Miles, 393 S.C. 111, 117, 711 S.E.2d 880, 883 (2011). "Moreover, consistent with
our constitutional authority for de novo review, an appellant is not relieved of his
burden to demonstrate error in the family court's findings of fact. Consequently,
the family court's factual findings will be affirmed unless 'appellant satisfies this
court that the preponderance of the evidence is against the finding of the [family]
court.'" Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011) (quoting
Finley v. Cartwright, 55 S.C. 198, 202, 33 S.E. 359, 360-61 (1899)).
2. As to whether the family court erred in finding Husband's Rule 59(e) motion
untimely, we affirm the family court's ruling. "A motion to alter or amend the
judgment shall be served not later than 10 days after receipt of written notice
of the entry of the order." Rule 59(e), SCRCP (emphasis added). In Ackerman v.
3-V Chemical, Inc., "[t]he sole issue on certiorari [was] what constitutes timeliness
in filing a Rule 59, SCRCP, motion to reconsider." 349 S.C. 212, 214, 562 S.E.2d
613, 614 (2002). There, the South Carolina Supreme Court rejected an argument
that a Rule 59 motion filed ten days after receipt of the written order, but not
within ten days of receipt of the Form Four notice of entry of the judgment, was
timely: "There is simply no language in the rule permitting the motion to be served
10 days after receipt of the written order; it states 10 days after receipt of written
notice of the entry of judgment." Id. at 215, 562 S.E.2d at 615. Furthermore,
Rule 6, SCRCP, does not extend the time for filing and serving a Rule 59(e)
motion: "The time for taking any action under [R]ules 50(b), 52(b), 59, and 60(b)
may not be extended except to the extent and under the conditions stated in [the
Rule]." Rule 6(b), SCRCP; see also Witzig v. Witzig, 325 S.C. 363, 366, 479
S.E.2d 297, 299 (Ct. App. 1996) ("Rule 6(e) is a pleadings rule and applies only
when service is effective upon mailing. The extra five days provided by Rule
6(e) compensates for the time notice is in the mail.") (emphasis added).
"Immediately upon the entry of an order or judgment the clerk shall serve a notice
of the entry by first class mail upon every party . . . . Such mailing shall not be
necessary to parties who have already received notice. Such mailing is sufficient
notice for all purposes for which notice of the entry of an order or judgment is
required by these rules . . . ." Rule 77(d), SCRCP (emphasis added). Here, it is
undisputed that, pursuant to Rule 77(d) the clerk of the family court mailed the
Form Four notice of entry of judgment to counsel of record for both parties on May
6, 2010.1 When challenged as to the timeliness of his Rule 59(e) motion, Husband
failed to offer any evidence regarding the date he received the Form Four notice of
entry of judgment. See Green v. Green, 320 S.C. 347, 350-51, 465 S.E.2d 130,
132-33 (Ct. App. 1995) (upon Wife's challenge to the timeliness of a Rule 59(e)
motion, the family court found Husband had produced credible evidence of the
motion's timeliness; on appeal, the court of appeals upheld the family court's
implicit credibility determination that the motion was timely served). We affirm
the family court's finding that Husband's Rule 59(e) motion was untimely.
Husband filed and served his appeal from the family court's May 6, 2010 order on
September 2, 2010. A timely post-trial motion stays the time for appeal; however,
an untimely post-trial motion does not stay the time for appeal. Canal Ins. Co. v.
Caldwell, 338 S.C. 1, 5, 524 S.E.2d 416, 418 (Ct. App. 1999).
When seeking review of a family court's order, a notice
of appeal must be served on all respondents within thirty
days after receipt of written notice of the order or
judgment. Service of the notice of appeal is a
'jurisdictional requirement, and this Court has no
authority to extend or expand the time in which the
notice of intent to appeal must be served.' A timely post-
trial motion, including a motion to alter or amend the
1
On May 6, 2010, Jack Cordray was counsel of record for Husband.
judgment pursuant to Rule 59(e), SCRCP, stays the time
for an appeal for all parties until receipt of written notice
of entry of the order granting or denying such motion.
Camp v. Camp, 386 S.C. 571, 574-75, 689 S.E.2d 634, 636 (2010) (citations
omitted); see also State v. Cooper, 342 S.C. 389, 397, 536 S.E.2d 870, 875 (2000)
("When either party files a timely Rule 59, SCRCP motion, the time to appeal for
all parties is stayed until the motion is resolved."). Because this court has no
jurisdiction over Husband's appeal of the family court's May 6, 2010 order, we
dismiss Husband's appeal.
3. As to Husband's estoppel argument, we find this issue unpreserved because
Husband failed to raise this issue to the family court. See Wilder Corp. v. Wilke,
330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot
be raised for the first time on appeal, but must have been raised to and ruled upon
by the trial judge to be preserved for appellate review."); see also Jean Hoefer
Toal, et al., Appellate Practice in South Carolina 57 (2d ed. 2002) ("There are four
basic requirements to preserving issues at trial for appellate review. The issue
must have been (1) raised to and ruled upon by the trial court, (2) raised by the
appellant, (3) raised in a timely manner, and (4) raised to the trial court with
sufficient specificity.").
4. As to whether the family court erred in denying Wife's request for $6,638.65
in attorney's fees incurred in responding to Husband's post-trial motion, we
reverse. See Griffith v. Griffith, 332 S.C. 630, 645, 506 S.E.2d 526, 534 (Ct. App.
1998) ("In determining whether to award attorney's fees, the court should consider
each party's ability to pay his or her own fee; the beneficial results obtained by the
attorney; the parties' respective financial conditions; and the effect of the attorney's
fee on each party's standard of living." (citing E.D.M. v. T.A.M., 307 S.C. 471, 415
S.E.2d 812 (1992))). In reversing, we note the family court's extensive
consideration of these factors in its May 6, 2010 order. Furthermore, we note Wife
prevailed in her efforts to show that Husband's Rule 59(e) motion was untimely.
Accordingly, we award Wife attorney's fees of $6,638.65.
AFFIRMED IN PART, DISMISSED IN PART, and REVERSED IN PART.
PIEPER, KONDUROS, and GEATHERS, JJ., concur.