The December 22, 2021, Court of Appeals opinion in Rish v. Rish, 435 S.C. 681, 868 S.E.2d 719 (Ct.App. 2021), addresses the modifiability of non-modifiable alimony.
The parties in Rish divorced in 2003. As part of the divorce the family court approved their agreement on alimony, which purported to make alimony non-modifiable, and only terminable upon Wife’s remarriage or either parties’ death. In 2011, Husband’s alimony was reduced from $650 to $550 per month. Wife did not raise the issue that alimony was supposed to be non-modifiable.
In 2016, Husband filed to terminate alimony. Wife, for the first time, argued that their divorce decree made alimony non-modifiable. At trial, the family court found the 2011 order was the “law of the case” and therefore alimony was now modifiable. It further found Husband’s financial situation had substantially declined and terminated his alimony.
Wife then filed motions pursuant to Rule 59(e), and Rule 60(b)(4), SCRCP, arguing the 2011 modification order was void because the divorce decree deprived the family court of subject matter jurisdiction to modify alimony. The family court denied Wife’s motion, finding it had continuing jurisdiction to modify alimony because the divorce decree did not “unambiguously deny the family court jurisdiction to modify or terminate the alimony obligation.” The court further found “[t]he motion for reconsideration [as to Rule 60(b)(4), SCRCP,] was not filed within a reasonable time and is therefore subject to the equitable doctrines of estoppel and laches.” Thus, the court denied the motion. This appeal followed.
The Court of Appeals reversed the family court’s termination of alimony. It held the 2003 divorce decree unambiguously deprived the family court of subject matter jurisdiction to modify alimony and that the 2011 modification did not change that. Citing Degenhart v. Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct. App. 2004), it noted that the decree’s failure to “expressly deny” the family court continuing jurisdiction did not grant the court such jurisdiction. The agreement was “clear and specific in this case how alimony can be modified.” Husband had not alleged any of those grounds to so modify, so the Court of Appeals reversed the alimony termination “as void for lack of subject matter jurisdiction.”
However the Court of Appeals affirmed the family court’s determination that Wife’s Rule 60(b)(4), motion was untimely, and therefore the 2011 reduction should not be overturned. It noted prior South Carolina Supreme Court case law “requires that motions to set aside a judgment on the ground it is void must be brought within a reasonable time.” It further noted South Carolina follows the minority rule, applying a reasonable time requirement to void judgments even though the minority rule is in conflict with authority that holds a void judgment cannot gain validity with the movant’s delay because it is a nullity from its inception. Finding a seven year acquiescence to the reduction in the 2011 order was unreasonable under Rule 60(b)(4)’s reasonable time requirement, it refused to vacate the 2011 order.
Thus Husband will be paying $550 per month in alimony until either he or Wife dies or until Wife remarries. I occasionally see some alimony agreement making permanent alimony non-modifiable and it’s typically because some well-off Husband was too cheap to hire independent counsel and enters such an agreement either not understanding or caring that he cannot reduce his alimony if his income drops (and perhaps thrilled that it cannot increase if his income rises). As alimony is the rare debt in which one can be incarcerated for not paying, it is foolish for anyone to agree to such an obligation. It is also foolish for family courts to reflexively approve such agreements without clearly warning the supporting spouse of the ramifications of permanent, non-modifiable alimony. But such agreements do exist and they will be enforced.
Since Wife has not remarried in 18 years, it appears Husband’s alimony ends when he dies or she dies. Am I the only one twisted enough to note that his likely outcomes are similar if he doesn’t make his alimony payments or has his ex-wife killed?
” Am I the only one twisted enough to note that his likely outcomes are similar if he doesn’t make his alimony payments or has his ex-wife killed?”
I wouldn’t be so sure about that. I suspect that murder-for-hire may be considered a capital crime….
Your post brings back my appellate nightmare of Maxwell v. Maxwell, 375 S.C. 182, 650 S.E.2d 580 (Ct. App. 2007). When the family court approved the nonmodifiable alimony agreement, I was not the appellant’s lawyer.