Domestic Relations – Subject Matter Jurisdiction – Modification of Orders of Spousal Support

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The family court had exclusive jurisdiction over the modification of orders of spousal support.

We affirmed the family court’s order as to the grant of Husband’s motions to dismiss Wife’s first and second counterclaims and reversed and remanded the award of $9,271.69 to Husband for recalculation of the post-judgment interest owed by each party.

In this appeal from a declaratory judgment action, Wife appealed the family court’s order granting Husband’s motions to dismiss her first and second counterclaims and awarding Husband $9,271.69 after equitably offsetting the amount Husband owed her for attorneys’ fees and property division with the amount she owed Husband for his excess alimony payments. Wife argued the family court erred in dismissing her first counterclaim because this court did not have subject matter jurisdiction to modify the original permanent periodic alimony award to a fixed term alimony award in Gillmann v. Gillmann. She also argues the family court erred in dismissing her second counterclaim in which she contended the Gillmann I alimony judgment was void ab initio because this court rendered it without federal or state constitutional due process. She further argued that even if the Gillmann I alimony judgment was valid, the family court exceeded its mandate by awarding Husband judgment interest and equitable setoff in the declaratory judgment action, did not correctly apply the law in awarding judgment interest to Husband, and did not correctly apply the law in allowing Husband’s excess alimony payments to offset the attorney’s fees and property division award he owed her since 2015.

The family court did not err by dismissing Wife’s first counterclaim, in which she alleged this court erred in modifying her permanent periodic alimony to fixed term alimony in Gillmann I because the family court had exclusive jurisdiction over the modification of orders of spousal support. We held this court had subject matter jurisdiction to modify the alimony awarded Wife from permanent periodic alimony to fixed term alimony and to apply the modification retroactively. We rejected Wife’s argument that sections 63-3-5302 and 20-3-170(A)3 divest this court of subject matter jurisdiction to modify an award of alimony in family court cases appealed to this court. Our appellate courts have modified alimony without remanding the case to the family court. Accordingly, this court had subject matter jurisdiction in Gillmann I to modify the alimony awarded to Wife and to terminate alimony as of February 9, 2018.

The family court did not err in awarding Husband post-judgment interest on his excess alimony payments; however, the family court erred in determining the accrual date of the interest. Initially, we held the family court could not award Husband pre-judgment interest on his excess alimony payments because he failed to ask for such relief in his pleadings. We held the family court could award Husband post-judgment interest on his excess alimony payments because the amount owed was a fixed award as of the filing of this court’s opinion in Gillmann I on May 15, 2019. We held the family court could award post-judgment interest even though this court did not include such an award in its Gillmann I opinion because post-judgment interest is awarded as a matter of course. This court’s opinion in Gillmann I modified Husband’s alimony from permanent periodic to fixed term and indicated his alimony payments terminated retroactively as of February 9, 2018. Although this court did not state the exact amount of excess alimony paid by Husband in Gillmann I, the amount of excess alimony was a sum certain at the time this court filed its opinion in Gillmann I because the parties knew the amount of alimony that Husband paid each month since February 8, 2018. Accordingly, the family court did not err in awarding Husband post-judgment interest on the $31,000 in excess alimony. However, the family court erred in determining the accrual date for post-judgment on Husband’s excessive alimony payments was February 8, 2018, because no final judgment requiring Wife to reimburse Husband for excess alimony payments was in place on that date.

The family court did not err in finding the amount Husband owed in attorneys’ fees and for the property distribution award with interest was equitably offset by the excess alimony payments, with interest, that Wife owed Husband. The family court did not err in allowing equitable setoff notwithstanding Wife’s argument that it would prevent Husband from paying her attorney’s fee award directly to her attorney because attorney’s fees are paid to the litigant, not to the attorney. The fact that the $19,524.23 Husband owed Wife included $10,000 of attorneys’ fees did not prevent the family court from allowing equitable setoff.

Affirmed in part, reversed in part, remanded.

Gillmann v. Gillmann (Lawyers’ Weekly No. 012-036-25, 7 pp.) (Per Curiam) Appealed from Lexington County Family Court (W. Greg Seigler, J.) Nancy A. Lipski, of Nancy A. Lipski, LLC, of Lexington, for Appellant. Max Nathan Pickelsimer, of Rock Hill, for Respondent. South Carolina Court of Appeals Unpublished