April 17, 2013 South Carolina Court of Appeals published opinions

Shultze v Schultze

Wife appealed the final judgment of divorce arguing her retirement account and the marital debts should not have been apportioned and seeking additional attorney fees. The panel reversed in part, affirmed in part and remanded. It held that the parties had withdrawn the division of personal property form the family court in pretrial filings. Thus, as husband had not moved to include personal property division in the final judgment, the family court lacked jurisdiction over wife’s retirement account. The panel affirmed on the debt division holding the issue was before the family court, the debt in question existed before the divorce action was field and wife failed to rebut the presumption that eh debt was marital. The panel remanded for consideration of additional attorney fees.

Hawkins v Hawkins

Father sought termination of his child support obligation which the family court denied. The panel, one judge separately concurring, affirmed. The majority held that the parties’ settlement agreement did not require automatic annual recalculations or relive father of the burden of proving a substantial change in circumstances. The majority also held that given father’s assets, his wife’s income, his taking expensive vacations and having obtained a real estate license, the family court properly concluded he was not entitled to a termination of child support. The majority also affirmed the award of attorney fees to wife. The concurring judge argued that the settlement agreement did require annual recalculation without a need to show a change of circumstances. However the judge agreed that allowing termination here would be inequitable as father’s standard of living had not changed despite being fired from a high paying job.

Colonna v Marlboro Park Hospital

Colonna suffered a compensable injury to her ankle and foot. After two surgeries on her ankle and the implantation of a stimulation device in her back, she sought additional benefits. The workers compensation commission found that she was entitled to a scheduled award for her ankle and foot, was not entitled to additional temporary disability befits and had reached maximum medical improvement. The circuit court upheld the decision. The panel affirmed. It held that the implanted device did not affect her back as it was not placed there to diagnose or treat her back but to treat her ankle and foot to improve the condition of her leg. Because there was only injury to her leg, she was only entitled to benefits under the schedule not the general disability prong of the statute. The claim for psychological injury was barred as law of the case as she did not challenge the commission’s finding below. The panel also held there was substantial evidence in the form of medical testimony that Colonna had reached maximum medical improvement.

Smith v D.R. Horton, Inc.

Smith sued Horton alleging defective construction of a house. Horton moved to compel arbitration under the purchase agreement. The circuit judge ruled the provision unconscionable and denied the motion. The panel affirmed. It held the arbitration clause was unconscionable as there was no mutuality of remedy as the arbitration clause sought to simultaneously eliminate a large number of remedies normally available to Smith including all monetary damages. It also held that the clause was so imbued with illegality that severing the terms while leaving the arbitration requirement would be a judicial rewriting of the contract which is not allowed under South Carolina law.

States v Spears

Spears was tried for murder and assault with intent to kill. The trail court allowed hearsay evidence about another shooting of the murder victim by Spears one moth prior to the murder and video evidence of the shooting. There was no on the record balancing of prejudice and relevance under Rule of Evidence 403. Spears was convicted on all counts. The panel remanded. It held that a balancing analysis under 4034 was necessary and the trial court field to conduct one. The panel noted a three way split of authority on the appropriate remedy with some jurisdiction having the appeals court conduct the analysis, some jurisdictions holding the failure to balance is harmless when the appellate panel can conduct the inquiry on the record and some remanding for the balancing analysis. As the South Carolina Supreme Court remanded in a case involving Rule of Evidence 609 when no balancing analysis was undertaken, the panel adopted remand as the appropriate remedy. The panel noted that there was evidence of prejudice in that the jury could have convicted on the earlier shooting and the error could not be held harmless.

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