Supreme Court authorizes use of SCRCP 60(b)(5) to right obvious injustice

Posted Wednesday, May 11th, 2011 by Gregory Forman
Filed under Alimony/Spousal Support, Equitable Distribution/Property Division, Family Court Procedure, Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The 2006 Court of Appeals opinion in Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1 (Ct. App. 2006) voided a provision in the parties’ 1990 court-approved equitable distribution agreement that gave Wife a portion of Husband’s Social Security benefits.  The Court of Appeals found that this provision violated 42 U.S.C. § 407(a) of the Social Security Act, which provides that Social Security benefits “shall not be transferable or assignable.”  When I read the Court of Appeals opinion I thought that case was ripe for a motion pursuant to SCRCP 60(b)(5) to reopen the final judgment based upon a claim that it was “no longer equitable that the judgment should have prospective application.”

Evidently Ms. Simmons’ attorney, Paul Tinkler, had the same thought.  He filed that motion, seeking to reopen both the equitable distribution and the alimony provisions of the Simmons’ agreement.  He sought to reopen the alimony provision because even though the distribution of Husband’s Social Security benefits were fashioned as “equitable distribution,” they were designed to provide ongoing support for Wife.  The family court ruled that it lacked subject matter jurisdiction to reconsider the agreement and denied her motion.  Wife appealed.

In the May 9, 2011 Supreme Court opinion of Simmons v. Simmons, 392 S.C. 412, 709 S.E.2d 666 (2011), the Supreme Court corrects this obvious injustice, noting that the mere passage of time did not make a SCRCP 60(b)(5) motion inappropriate.  It held that the parties’ mistaken belief that the court could divide Husband’s Social Security benefits was a valid reason to reconsider the equitable distribution agreement and remanded that issue for reconsideration by the family court.  Because the Supreme Court found “the parties’ intended agreement concerning alimony is inextricably connected to the agreed upon division of marital property,” it authorized reconsideration of the alimony agreement on remand too.

It was unjust to allow Husband to void a significant benefit to Wife from the parties’ separation agreement without allowing Wife to revisit and potentially revise the provisions of the parties’ agreement that are impacted by the voided portion.  Five years after the Court of Appeals opinion took away the benefit of Ms. Simmons’ bargain, it’s nice that the Supreme Court has provided her the opportunity to renegotiate.


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