Williams v. Williams ( 2011 )

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

Glenn Emmett Williams, Respondent,

v.

Lisa B. Williams, Appellant,

and

Lisa B. Williams, Third-Party Plaintiff, Appellant,

Landmark Builders of the Triad, Inc., Third-Party Defendant, Respondent.

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Appeal From Horry County
Wylie H. Caldwell, Jr., Family Court Judge

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Unpublished Opinion No. 2011-UP-578
Submitted February 1, 2011 – Filed December 20, 2011   

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REVERSED AND REMANDED

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C. Vance Stricklin, Jr., of West Columbia; and Katherine Carruth Goode, of Winnsboro, for Appellant.

Deborah Harrison Sheffield, of Columbia; and David R. Gravely, of Myrtle Beach, for Respondent Glenn Emmett Williams.

M. Brian Magargle, of Columbia, for Respondent Landmark Builders of the Triad, Inc.

PER CURIAM: This family court action concerns whether the family court erred in refusing Lisa Williams' (Mother's) request that it issue a Qualified Medical Child Support Order (QMCSO).  We reverse and remand.^[1]

FACTS/PROCEDURAL HISTORY

Glenn Emmett Williams (Father) and Mother were divorced in May 2008.  The marriage resulted in one child (Child).  By agreement of the parties, approved by the family court, Mother was granted primary custody, Father was given secondary custody, physical placement of Child was to be with Mother, and visitation was established.  Father was required to pay child support and to continue to maintain health and dental insurance coverage for Child.

In September 2008, Father filed an amended complaint seeking custody of Child and attorney's fees among other relief.^[2] Mother filed an answer and counterclaim seeking sole custody, modification of the summer visitation schedule, half of the private school tuition, and attorney's fees.  Additionally, Mother sought an order holding Father in contempt for not paying or reimbursing medical expenses and requiring Father to forward the "Explanation of Benefits" from the health insurer for claims for Child.[3]  She requested the family court issue a QMCSO to require Father's employer and health insurer to provide her with direct access to Child's insurance benefits and information.

In February 2009, Mother filed an amended answer, which included a third-party counterclaim against Father's employer, Landmark Builders of the Triad, Inc., seeking an order interpreting the prior orders as QMCSOs, issuing a QMCSO, finding Father and the Employer in contempt, and awarding attorney's fees.  Landmark filed an answer to the third-party complaint, denying that any prior order it had received was a QMCSO. 

At the outset of trial, the family court continued the third-party action and heard the issues solely between Mother and Father.  Father's counsel stated Father had no problem with the family court entering a QMCSO. Father also testified that he agreed with issuing a QMCSO.  However, he believed the order only needed to provide for Child to continue receiving insurance coverage if Father was terminated from his employment.  He believed Mother wanted any order issued to give her control over Father's insurance options.  Father testified he had no objection to the QMCSO draft that said that Child "has a right to health care."  Following trial, the family court denied Mother's request for a QMCSO, finding Father had "fulfilled his responsibilities under all previous orders." Additionally, the family court denied Mother's request for attorney's fees and ordered her to pay $3,500 of Father's attorney's fees.^[4] This appeal followed.  

STANDARD OF REVIEW

The appellate court reviews decisions of the family court de novo.  Lewis v. Lewis, 392 S.C. 381, 390, 709 S.E.2d 650, 654-55 (2011).  The appellate court generally defers to the factual findings of the family court regarding credibility because the family court is in a better position to observe the witness and his or her demeanor.  Id. at 390-92, 709 S.E.2d at 654-55.  The party contesting the family court's decision bears the burden of demonstrating the family court's factual findings are not supported by the preponderance of the evidence.  Id. at 392, 709 S.E.2d at 655.

LAW/ANALYSIS

I.  QMCSO

Mother argues the family court erred in failing to issue a QMCSO.  She maintains the family court erred in requiring her to show Father had not complied with the existing order for it to issue a QMCSO for Child.  We reverse and remand.

"A stipulation is an agreement, admission, or concession made in judicial proceedings by the parties or their attorneys and is binding upon those who make them.  The court must accept stipulations as binding upon the parties."  McCrea v. City of Georgetown, 384 S.C. 328, 332, 681 S.E.2d 918, 921 (Ct. App. 2009) (citation omitted). 

Because Father and his counsel conceded to the family court issuing a QMCSO, the family court erred in failing to do so. Our search of jurisprudence revealed nothing to support the family court's reliance on Father's fulfilling his obligation under the current order as a basis for denying Mother's request.  Accordingly, we reverse and remand for the family court to issue an order that satisfies the requirements for a QMCSO.  See 29 U.S.C.A. § 1169(a)(2)(A) (2009) (defining a QMCSO).

II.  Attorney's Fees

Mother maintains the family court erred in awarding Father attorney's fees and in failing to award her attorney's fees because the family court failed to consider the required factors in determining whether to award attorney's fees, only considering the beneficial results obtained by Father.  We agree.

The family court has discretion in deciding whether to award attorney's fees.  Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989); see also Lewis v. Lewis, 392 S.C. 381, 394, 709 S.E.2d 650, 656 (2011) ("[T]he decision to award attorney fees [] rests within the sound discretion of the family court.").  In deciding whether to award attorney's fees, the family court should consider (1) each party's ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties' respective financial conditions; and (4) the effect of the fee on each party's standard of living.  Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004). In determining reasonable attorney's fees, the six factors the family court should consider are "(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."  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). 

Although it noted all of the appropriate factors to consider when determining what amount of fees are reasonable, the family court only considered the beneficial results factor when making its decision of whether to award attorney's fees.  Additionally, by determining the family court should have entered a QMCSO, the beneficial results have changed.  Accordingly, in light of the above, we reverse the family court's award of attorney's fees and remand the issue to the family court to consider all of the appropriate factors when determining whether to award either party attorney's fees.

CONCLUSION

Because Father agreed to the issuing of a QMCSO, the family court erred in failing to issue one.  Additionally, the family court failed to consider all of the appropriate factors when making its decision of whether to award attorney's fees.  Further, based on our determination that the family court erred in failing to issue a QMCSO, the beneficial results have changed.  Accordingly, the family court's decision is

REVERSED AND REMANDED.

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

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

[2] Father filed his original complaint in July 2008 as an attempt to prevent Mother from removing Child from public school and placing him in a private school, which included homeschooling three days a week. Father also filed a motion for temporary relief to preserve the status quo as to Child's school placement.  While the family court was reviewing jurisdictional issues relating to Father's request, the court ordered Child attend the same school as he did the previous year.  During litigation, the private school Mother wanted Child to attend became an unviable option and Mother sought to move Child to a different private school.  Father did not object to the new private school and dropped all of his claims except for attorney's fees for Mother's counterclaims.

[3] Mother had sought an Explanation of Benefits from the health insurer, which had told her "the Plan Administrator (usually the employer) is responsible for validating a QM[CS]O. . . . It is the Plan Administrator's role to determine whether the QM[CS]O is valid and meets applicable state and federal requirements."  The following month, Mother's attorney sent, via certified mail, Father's employer, Landmark Builders of the Triad, Inc., a letter requesting it treat the divorce decree and order approving the custody agreement as QMCSOs.

[4] Father's affidavit for reimbursement for attorney's fees and costs incurred prior to trial amounted to $19,325.