Shaw v. Shaw ( 2010 )

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

Cupid Shaw, Respondent,

v.

Anna Lee Shaw and Jerome Shaw, Defendants

Of whom Anna Lee Shaw Is Appellant.

---

Appeal From Berkeley County
Aphrodite K. Konduros for Billy A. Tunstall, Jr.
and Billy A. Tunstall, Jr., Family Court Judge

---

Unpublished Opinion No. 2010-UP-344
Submitted May 3, 2010 – Filed June 30, 2010

---

AFFIRMED

---

Deborah K. Lewis, of Charleston, for Appellant. 

John B. Williams, of Moncks Corner, for Respondent.

PER CURIAM: In this family court case, Anna Lee Shaw (Wife) appeals from an order of Judge Tunstall granting Cupid Shaw (Husband) sole authority to conduct listing arrangements, negotiations, and the final sale of certain jointly held property, free of interference or control by Wife, and an order of Judge Konduros, on behalf of Judge Tunstall, denying Wife’s motions pursuant to Rules 59 and 60, SCRCP.  Wife contends (1) Judge Tunstall erred in proceeding with a hearing when another judge had retained jurisdiction of the matter and no written order was entered by the prior judge relinquishing jurisdiction; (2) Judge Tunstall erred and abused his discretion by issuing an order on Husband’s rule to show cause which effectively modified the underlying order and granted new relief not requested by Husband; (3) Judge Tunstall erred in proceeding with the hearing on March 17, 2008 knowing that the defendant Jerome Shaw had not been notified of the hearing or dismissed from the action as Jerome was a necessary party to the case; (4) the underlying orders upon which Judge Tunstall based his ruling were without subject matter jurisdiction or were ambiguous and unenforceable; (5) Judge Tunstall was barred by equity from enforcing the order of Judge Cate filed April 26, 2008 and was it an abuse of discretion by Judge Tunstall to enforce the order.  We affirm.[1]

1.  We decline to rule on whether (1) Judge Tunstall erred in proceeding with a hearing when another judge had retained jurisdiction of the matter and no written order was entered by the prior judge relinquishing jurisdiction; (2) Judge Tunstall erred in proceeding with the hearing on March 17, 2008 knowing that the defendant Jerome Shaw had not been notified of the hearing or dismissed from the action as Jerome was a necessary party to the case; and (3) Judge Tunstall was barred by equity from enforcing the order of Judge Cate filed April 26, 2008 and whether it was an abuse of discretion by Judge Tunstall to enforce the order.  These issues clearly are not preserved for our review.  Payne v. Payne, 382 S.C. 62, 70, 674 S.E.2d 515, 519 (Ct. App. 2009) (“To be preserved for appellate review, an issue must have been raised to and ruled upon by the trial judge.  Issues not raised and ruled upon in the trial court will not be considered on appeal.”); see also Dixon v. Dixon, 362 S.C. 388, 399, 608 S.E.2d 849, 854 (2005) (finding issue raised for first time in a Rule 59, SCRCP motion is not preserved for review); Gartside v. Gartside, 383 S.C. 35, 43, 677 S.E.2d 621, 625 (Ct. App. 2009) (a party cannot use a motion to reconsider, alter or amend a judgment to present an issue that could have been raised prior to the judgment but was not).

2.  We find no merit to Wife’s assertion Judge Tunstall erred and abused his discretion by issuing an order which effectively modified Judge Cate’s order and granted new relief that was not requested by Husband.  Assuming arguendo that the issue is properly preserved because Wife could not have raised the matter until her post-trial motion since she did not know of it prior to the judgment, it is clear Judge Tunstall did not modify clear and unambiguous terms of a divorce or separation agreement as prohibited by Nicholson v. Nicholson, 378 S.C. 523, 532, 663 S.E.2d 74, 79 (Ct. App. 2008), but simply construed Judge Cate’s order incorporating the parties’ agreement to effect the intent of the judge and the parties, and did so in accordance with principles of equity and the rule that implied in every such agreement is a requirement of reasonableness.  Davis v. Davis, 372 S.C. 64, 75, 641 S.E.2d 446, 451 (Ct. App. 2006).  Further, a family court may exercise its power in equity to ensure a just result.  Buckley v. Shealy, 370 S.C. 317, 323-24, 635 S.E.2d 76, 79 (2006) (citing Ex Parte Dibble, 279 S.C. 592, 595-96, 310 S.E.2d 440, 442 (Ct. App. 1983) for the proposition that all courts have the inherent power to do all things reasonably necessary to ensure that just results are reached to the fullest extent possible). Additionally, in consideration of Husband’s petition, as well as his argument and presentation of evidence at the hearing, it is equally clear that Judge Tunstall did not, as asserted by Wife, grant Husband relief not requested. Finally, Wife’s argument in this respect may be considered abandoned on appeal based on the conclusory nature of her argument and failure to cite any law in support thereof.  See Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (noting when an appellant fails to cite any supporting authority for his position and fails to provide any argument or makes conclusory arguments, the appellant abandons the issue on appeal).

3.  We further find subject matter jurisdiction was not implicated, and because Wife failed to challenge the family court’s authority at the time of the numerous hearings and failed to directly appeal the previous orders, the matter is not preserved.  We likewise hold Wife’s ambiguity argument is not preserved as she failed to raise the issue before Judge Tunstall. 

Subject matter jurisdiction refers to a court’s constitutional or statutory power to adjudicate a particular case.  Johnson v. S.C. Dep’t of Prob., Parole, & Pardon Servs., 372 S.C. 279, 284, 641 S.E.2d 895, 897 (2007).  More simply, it is the power to hear and determine cases of the general class to which the proceedings in question belong.  Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005).  Numerous of our courts’ cases have held that subject matter jurisdiction is not implicated when the court possesses the power to hear and determine cases of the general class to which the proceedings in question belong.  Gainey v. Gainey, 382 S.C. 414, 424, 675 S.E.2d 792, 797 (Ct. App. 2009).  The family court does not have jurisdiction to apportion nonmarital property.  Simmons v. Simmons, 370 S.C. 109, 113-14, 634 S.E.2d 1, 3 (Ct. App. 2006); S.C. Code Ann. § 20-7-473 (Supp. 2007) (repealed and replaced by § 20-3-630); S.C. Code Ann. § 20-3-630(B) (Supp. 2009). However, the family court undoubtedly has jurisdiction to determine whether property is marital or nonmarital.  See S.C. Code Ann. § 20-7-420 (A)(2)(Supp. 2007) (repealed and replaced by § 63-3-530(A)(2)) (providing the family court has exclusive jurisdiction to hear and determine actions “[f]or divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage . . . .”); S.C. Code Ann. § 63-3-530(A)(2) (2010) (likewise providing the family court has exclusive jurisdiction “to hear and determine actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage . . . .”); S.C. Code Ann. § 20-3-620(A) (Supp. 2009) (stating, “[i]n a proceeding for divorce a vinculo matrimonii or separate support and maintenance, . . . and in other marital litigation between the parties, the court shall make a final equitable apportionment between the parties of the parties’ marital property upon request by either party in the pleadings”); S.C. Code Ann. § 20-3-630(A) (Supp. 2009) (defining marital property and that which, by exception, constitutes nonmarital property).        

Implicit in the court’s orders is that the 1.3 acres constituted marital property.[2] The determination of the marital nature of the property in question arose in the course of marital litigation and was therefore within the family court’s jurisdiction under former section 20-7-420(A)(2) and current section 63-3-530(A)(2).  Thus, the family court has subject matter jurisdiction over the matter.  Additionally, Wife did not challenge the family court’s authority over the property in question at the time of the 1993 hearing, nor even the 2000 hearing, nor does it appear she filed any direct appeals from either of those orders.  The issue of the court’s authority could have been raised in those hearings but was not, and because the matter does not implicate subject matter jurisdiction, it may not simply be raised at any time, and is therefore unpreserved.  See Gainey, 382 S.C. at 424-25, 675 S.E.2d at 797 (holding subject matter jurisdiction was not implicated in action for separate maintenance and support and approval of the parties’ agreement where wife subsequently asserted the parties were not living separate and apart; wife’s failure to challenge the family court’s authority at the time of the hearing and failure to directly appeal the order rendered the matter unpreserved and her attempt to assert the court’s lack of subject matter jurisdiction some thirteen months later in a post-trial motion was properly denied).  Because the court has subject matter jurisdiction to determine whether property is marital or nonmarital, and because Wife did not challenge the implicit rulings of the family court that the property in question was marital, this issue is not preserved and Wife’s attempt to classify the matter as a subject matter jurisdiction issue will not save her from the preservation rules of our courts.  

Further there is no merit to Wife’s contention the court lacked subject matter jurisdiction by virtue of the court’s failure to join Jerome as a necessary party to the 2000 action because the property had already been conveyed to Jerome.  At this point the orders implicitly provided, and Wife agreed, that the property in question was marital.  The fact that Wife may have deeded the property to a third party in contravention of the family court’s order did not divest the court of subject matter jurisdiction over Husband’s petition to hold Wife in contempt for violation of the court’s order.

Lastly, as noted by Husband, Wife failed to raise any issue concerning ambiguity in the 1993 order of Judge Creech before Judge Tunstall at the 2008 hearing.  Accordingly, this argument is not preserved for review.  See Payne, 382 S.C. at 70, 674 S.E.2d at 519 (stating to be preserved for appellate review, an issue must have been raised to and ruled upon by the trial judge, and issues not raised and ruled upon in the trial court will not be considered on appeal); Dixon, 362 S.C. at 399, 608 S.E.2d at 854 (finding issue raised for first time in a Rule 59, SCRCP motion is not preserved for review).

AFFIRMED.

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

---

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

[2] We note there is no merit to Wife’s contention that the court lacked subject matter jurisdiction because Husband expressly waived interest in her inherited property and the 1.3 acres was inherited property.  Wife has taken inconsistent positions that (1) the property was given to Jerome by her father and she merely held the property in trust and that (2) the property was inherited by her.  A review of the record reveals that the property was actually deeded to Wife in 1985, not inherited by her. She then deeded the property to Jerome in 1997.