Condell v. Fitzgerald

THE STATE OF SOUTH CAROLINA In The Court of Appeals Marsha K. Condell (f/k/a Fitzgerald), Respondent, v. Alexander Richard Fitzgerald, II, Appellant. Appeal From Lexington County Richard W. Chewning, III, Family Court Judge Unpublished Opinion No. 2003-UP-724 Submitted October 10, 2003 – Filed December 15, 2003 AFFIRMED G. Robin Alley, of Columbia, for Appellant. J. Mark Taylor, C. Vance Stricklin, Jr., and M. Ronald McMahan, Jr., all of West Columbia, for Respondent. PER CURIAM: Alexander Fitzgerald (Husband) appeals the family court’s order holding him in contempt for his failure to comply with certain provisions of the divorce decree. We affirm. [1] FACTS/PROCEDURAL HISTORY Marsha Condell (Wife) brought this contempt action against Husband alleging he failed to make mortgage and tax payments on the marital home pending the home’s sale as required by the order for separate maintenance and support which was incorporated into the couple’s divorce decree. These payments were to be an incident of support to Wife. Pursuant to the order, Wife was to receive the net proceeds from the home’s sale. Wife alleged Husband’s conduct forced her to sell the home at a reduced price to avoid bankruptcy, a deficiency judgment, and damage to her credit rating. In addition to a finding of contempt, Wife sought compensation for her lost proceeds. During a hearing on the matter, Husband conceded he had failed to pay the mortgage payments and taxes following his compliance with an earlier contempt order in 2001. He explained that he stayed in the marital home until going to jail for 32 days pursuant to a second contempt order regarding his failure to make the mortgage and tax payments. The family court held Husband in willful contempt for failing to pay the mortgage payments and taxes prior to the home’s sale. The court sentenced husband to six months in jail suspended upon his payment to Wife of $47,408.46, representing the mortgage and tax payments he failed to make, Wife’s attorney’s fees associated with an earlier contempt proceeding, and Wife’s attorney’s fees for the instant contempt proceeding. LAW/ANALYSIS Husband argues the family court erred in holding him in contempt. We disagree. “Contempt results from the willful disobedience of a court order.” Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989). To sustain a finding of contempt, the record must “clearly and specifically” exhibit the contemptuous conduct. Id. An appellate court will reverse the family court’s contempt ruling only if it lacks evidentiary support or constitutes an abuse of discretion. Dale v. Dale, 341 S.C. 516, 520, 534 S.E.2d 705, 707 (Ct. App. 2000). Here, Husband’s own testimony clearly supports the trial court’s finding that he willfully disobeyed the divorce decree by failing to make the mortgage and tax payments. Thus we find no basis to reverse the family court’s order. Husband devotes a substantial portion of his brief to challenging Wife’s entitlement to the compensatory damages awarded. Among other things, he contends because the sale price of the home was less than the sums due on the note and taxes and because the bank agreed not to pursue a deficiency judgment, Wife suffered no loss. However, because these arguments are extraneous to the sole question on appeal — whether Husband was in contempt of the court order — we do not address them. See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”). AFFIRMED. HUFF, STILWELL, and BEATTY, JJ., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.