In The Court of Appeals

Mark T. Klein, Appellant,


Sherry G. Klein, Respondent.

Appeal From Pickens County
 Tommy B. Edwards, Family Court Judge

Unpublished Opinion No. 2008-UP-074
Submitted January 2, 2008 – Filed February 4, 2008


Robert Scott Dover, of Pickens, for Appellant. 

Woodrow Grady Jordan, of Easley, for Respondent.

PER CURIAM:  In this appeal arising from a Rule to Show Cause action,  Mark T. Klein (Husband) argues the family court erred in awarding Sherry G. Klein (Wife) affirmative relief and attorney’s fees.  We affirm.  


Husband and Wife were married on June 16, 1972.  The parties had one son, Mark T. Klein, II, born on August 8, 1975.  During the marriage, Husband owned seven pieces of real estate encumbered by a single mortgage (the mortgage) with Oconee Savings and Loan Association. 

The parties separated in November 1988, and shortly thereafter, Husband filed for divorce.  The parties subsequently reached a separation agreement resolving all issues regarding the divorce.   

The separation agreement specifically addressed the disposition of three pieces of Husband’s real property.  Under the agreement, Husband agreed to be responsible for the mortgage covering the various properties.  Husband also agreed to transfer fee simple title of the marital home (Lot 8) to Wife when the parties’ son reached the age of eighteen.  Wife agreed to waive any right to Husband’s four-plex house (Lot 6).  Lastly, Husband agreed to give Wife one-half of “the net proceeds after costs of sale” when the remaining property (Lot 9) was sold. 

On May 22, 1989, the parties appeared before the family court, seeking the court’s approval of the parties’ separation agreement and requesting a ruling regarding separate maintenance and support.  The family court incorporated the agreement into its order after concluding it was fair and reasonable and awarded Wife separate maintenance and support pending the final order.  On January 12, 1990, the family court issued a final decree of divorce.

On January 4, 1990, Husband sold Lot 6 and Lot 9 for $198,000.  Husband’s records indicate the sale price of Lot 9 was $73,000, while the price for Lot 6 was $125,000.  Prior to this sale, Husband had sold other lots encumbered by the mortgage, and the net proceeds from these prior sales were applied to the satisfaction of the mortgage.  At the time of the January sale, the remaining balance on the mortgage was $137,702.91.  Husband’s records indicated net proceeds of $45,374.55 after paying the balance on the mortgage, real estate commission, and taxes on the properties.  On January 5, 1990, Husband’s attorney forwarded a check in the amount of $45,374.55 to the trust account of Acker, Acker, Floyd & Welmaker to be escrowed pending the distribution of the proceeds between Husband and Wife.  

On April 7, 2004, Wife filed a Rule to Show Cause against Husband, requesting the family court find Husband in contempt.  Specifically, Wife alleged Husband failed to convey fee simple title to Lot 8 in full because he conveyed a one-half interest in the property to her and a one-half interest to the parties’ son.  Wife also alleged Husband was in contempt because he failed to pay her one-half of the net proceeds from the sale of Lot 9.  Lastly, Wife sought attorney’s fees for the Rule to Show Cause action.  

Following Husband’s receipt of notice for the Rule to Show Cause, the parties’ son executed a deed conveying his one-half interest in Lot 8 to Wife.  Husband also paid Wife’s attorney’s fees and costs. 

However, at the Rule to Show Cause hearing on April 17, 2006, Husband denied that Wife was entitled to any of the net proceeds he received from the sale of the two lots.  Husband argued he applied the entirety of the sales price from the sale of Lot 9 to satisfy the mortgage, leaving no proceeds for Wife from the sale.  Husband also claimed the $45,374.55 in proceeds were entirely from the sale of Lot 6. 

In its Rule to Show Cause Order, dated May 8, 2006, the family court held a finding of contempt in abeyance because (1) Wife waited a long time to bring the action and (2) the determination of the amount due under the final order was confusing, such that the parties did not have a clear method for computing the net proceeds.  The court adopted Wife’s rationale for distributing the $45,374.55 based on Lot 9’s ratable share of the sales price and ordered Husband to pay Wife $8,229.  Additionally, the family court ordered Husband to pay Wife’s attorney’s fees in the amount of $573.  Husband appeals.   


In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence.  Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005).  However, this broad scope of review does not require this Court to disregard the family court’s findings.  Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149-50 (Ct. App. 2005).  Nor must we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  However, our broad scope of review does not relieve the appellant of the burden of convincing this Court that the family court committed error.  Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E.2d at 711.


I. Admissibility of Evidence

Husband argues the family court erred in admitting a document illustrating Wife’s calculations of the “net proceeds” owed to her under the real estate sale because Wife laid no foundation for its admissibility.  We disagree.

The admission or exclusion of evidence at trial is within the sound discretion of the court.  Grand Strand Constr. Co., Inc. v. Graves, 269 S.C. 594, 595, 239 S.E.2d 81, 81 (1977).  On appeal, the exercise of the trial court’s discretion will not be disturbed unless there is a showing of (1) a clear abuse of discretion, (2) the commission of legal error in the exercise of discretion, and (3) prejudice to the rights of the appellant.  Rutledge v. St. Paul Fire & Marine Ins. Co., 286 S.C. 360, 366, 334 S.E.2d 131, 135 (Ct. App. 1985).

At trial, Husband objected to the admission of Wife’s document, arguing Wife was not aware of its contents.  Following the objection, Wife testified the document contained her calculations of the amount owed to her based on the sales prices of the two properties.  The family court overruled Husband’s objection and admitted the document. 

Rule 901(a) of the South Carolina Rules of Evidence states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Testimony of a witness with knowledge that “a matter is what it is claimed to be” is a method of authentication conforming to the requirements of Rule 901.  Rule 901(b)(1),  SCRE.

Wife offered the document to demonstrate her calculation of the figure she claimed she was owed from the sale of Lot 9.  She expressly testified the document represented this calculation and the figure she ultimately claimed to be owed.  Thus, Wife’s testimony provided a proper authentication for the admission of the document into evidence.

Furthermore, the figures contained in the document had already been properly admitted into evidence.  The document included the figures from the sale of Lot 9 as contained in two previous exhibits, which were already stipulated into evidence by the parties.  The document also included the figure Wife testified she believed to be her share from the sale of Lot 9.  In this regard, the document is demonstrative evidence offered as an aid to the fact finder.  Demonstrative evidence explains or summarizes other evidence and testimony.  Clark v. Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000).  Such evidence “must rely on other material testimony for relevance.”  Id.  Wife’s document simply illustrates how, from the figures in the two prior exhibits, Wife calculated the amount she claimed to be owed.  It is of no consequence that she did not testify to having first-hand knowledge of the figures contained in the two previous exhibits as they were already admitted into evidence.       

Additionally, the admission of improper evidence is harmless when it is merely cumulative to other evidence.  Muir v. C.R. Bard, Inc., 336 S.C. 266, 300, 519 S.E.2d 583, 600 (Ct. App. 1999).  Even if we agreed with Husband’s argument, we must not disturb the family court’s decision to admit Wife’s document because Husband has made no showing that he has suffered prejudice.  As noted previously, the document contained figures from evidence which had already been properly admitted.  Therefore, Husband has not suffered prejudice, and the family court’s decision to admit Wife’s document was not reversible error. 

II. Reopening of Wife’s Case at Trial

Husband argues the family court erred in allowing Wife to reopen her case.  We disagree. 

The decision to reopen the evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.  Brown v. La France Indus., a Div. of Riegel Textile Corp.,  286 S.C. 319, 324-25, 333 S.E.2d 348, 351 (Ct. App. 1985). In South Carolina, it is well established that the decision of the trial court to allow a party to reopen his case will not be reversed unless it results in prejudice to the opposing party.  Id.   The wide latitude afforded to the trial court permits the court to reopen the case and allow the introduction of additional evidence even after a motion for a nonsuit is made.  Rakestraw v. Allstate Ins. Co., 238 S.C. 217, 222, 119 S.E.2d 746, 748 (1961) (citations omitted). 

We note it is unclear from the record whether Wife had rested her case as Husband claims.  After Husband’s attorney cross-examined Wife, the family court instructed Wife to step down and asked if Wife’s attorney had “[a]nything else,” to which Wife’s attorney responded, “No, sir.”  The court then asked Husband’s attorney whether he had any additional testimony, and Husband’s attorney stated, “If [Wife] rests, I have a motion.”  Wife’s attorney in kind responded, “I’ll call [Husband].”  It is plausible that Wife’s attorney’s response of “No, sir” to the family court’s initial question meant Wife’s attorney had no additional questions for Wife and that only after calling Husband to the stand would Wife rest her case. 

Regardless, under this State’s case law, the family court could have subsequently allowed additional evidence even if the Wife had rested her case and Husband had made his directed verdict motion.  See id.  Further, Husband does not argue he suffered prejudice by the family court’s decision.  Absent a showing of prejudice, we cannot disturb the decision of the family court.   Brown, 286 S.C. at 324-25, 333 S.E.2d at 351. 

III. Affirmative Relief

Husband argues the family court erred in awarding Wife affirmative relief.  We disagree. 

A. Contempt

Husband contends because the family court did not find him in contempt, it erred in awarding Wife affirmative relief.  We disagree. 

“It is well settled that contempt results from willful disobedience of a court order; and before a person may be held in contempt, the record must be clear and specific as to acts or conduct upon which the contempt is based.” Cheap-O’s Truck Stop, Inc., 350 S.C. 596, 612, 567 S.E.2d 514, 522 (Ct. App. 2002) (quoting State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct. App. 1994)). A willful act is “one done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say with bad purpose either to disobey or disregard the law.”  Id. (citations omitted).

The family court held the issue of contempt in abeyance in part because Wife waited an extended period of time to bring the Rule to Show Cause action.  We agree with the family court when it also stated, “[T]he determination in the amount due was confusing and the prior [o]rder did not help the parties in providing a clear cut methodology from which the amount was to be derive[d].”  Because the prior final order did not specify what constituted net proceeds and how those proceeds were to be deduced, the family court felt it was unclear as to whether Husband willfully disobeyed the final order.  However, based on our own view of the preponderance of the evidence, we find the ambiguity in the final order prevents a finding of contempt against Husband.  The facts and circumstances of this case do not support a finding of contempt.  See Smith v. Smith, 359 S.C. 393, 397, 597, S.E.2d 188, 189 (Ct. App. 2004) (finding provision in settlement agreement was ambiguous such that family court was proper to not hold the husband in contempt). 

Despite this, we agree with the family court when it stated, “[A] common sense and reasonable interpretation of [the] order was to give some value out of the sale of Lot 9 to [Wife].”  As stated in further detail below, because of the ambiguity in the final order, it was proper to award affirmative relief to Wife, despite the family court’s failure to find Husband in contempt.  Therefore, Husband’s argument is without merit. 

B. Interpretation of the Final Order and Separation Agreement

Husband also contends the family court erred in its interpretation of the prior final order and in granting Wife $8,229 in affirmative relief because it failed to find an ambiguity in the prior order.  Specifically, Husband contends the family court erred by inserting essential terms into the parties’ agreement and prorating the mortgage between Lot 6 and Lot 9.  We disagree.

In South Carolina, the construction of a separation agreement is a matter of contract law.  Estate of Revis by Revis v. Revis, 326 S.C. 470, 477, 484 S.E.2d 112, 116 (Ct. App. 1997).  “In the enforcement of an agreement, the court does not have the authority to modify terms that are clear and unambiguous on their face.”  Messer v. Messer, 359 S.C. 614, 621, 598 S.E.2d 310, 314 (Ct. App. 2004).  “Where an agreement is clear and capable of legal construction the court’s only function is to interpret its lawful meaning and the intention of the parties as found within the agreement and give effect to them.”  Bogan v. Bogan, 298 S.C. 139, 142, 378 S.E.2d 606, 608 (Ct. App. 1989).  “To discover the intention of a contract, the court must first look to its language - if the language is perfectly plain and capable of legal construction, it alone determines the document’s force and effect.”  Davis v. Davis,  372 S.C. 64, 75, 641 S.E.2d 446, 452 (Ct. App. 2006).  

On the other hand, “[a]n ambiguous contract is one capable of being understood in more ways than one, an agreement obscure in meaning through indefiniteness of expression, or having a double meaning.”  Estate of Revis, 326 S.C. at 479, 484 S.E.2d at 117.  Whether or not an ambiguity exists in an agreement must be determined from the language of the instrument.  Steffenson v. Olsen, 360 S.C. 318, 322, 600 S.E.2d 129, 131 (Ct. App. 2004).  When an agreement is susceptible of more than one interpretation, it is ambiguous and the court should seek to determine the intent of the parties.  Estate of Revis, 326 S.C. at 477-78, 484 S.E.2d at 117.  “[W]here an agreement has been merged into a courts [sic] decree, the decree, to the extent possible, should be construed to effect the intent of both the judge and the parties.”  Messer, 359 S.C. at 628, 598 S.E.2d at 318.  Additionally, “[a] court approved divorce settlement must be viewed in accordance with principles of equity and there is implied in every such agreement a requirement of reasonableness.”  Ebert v. Ebert, 320 S.C. 331, 340, 465 S.E.2d 121, 126 (Ct. App. 1995) (quoting 17A Am. Jur. 2d Contracts § 479 (1991)).

We agree with the family court’s finding that the final order was ambiguous.  The language of the separation agreement, adopted in the final order and divorce decree, is as follows: “The [Husband] agrees to be responsible for the outstanding mortgage covering the various properties which has an approximate balance at this time of $135,000.00. . . . Additionally, the [Husband] will give [Wife] one-half (50%) of the net proceeds after costs of sale of the remaining duplex house on Lot 9, Willowood Sub.” 

We agree with the family court that, looking at the language of the final order, it is not clear how the satisfaction of the mortgage is to be apportioned among the remaining properties, leaving the order susceptible to more than one interpretation.  We find the family court was not unreasonable in its assessment of the parties’ intent, in that “a common sense and reasonable interpretation of [the] [o]rder was to give some value out of the sale of Lot 9 to [Wife].”  For these reasons, we hold that the family court did not err in interpreting the final order.

We also hold the family court’s grant of affirmative relief was reasonable considering the language of the order.  The separation agreement, as incorporated into the final order, is susceptible to multiple interpretations, which may have allowed Wife to claim a greater share of the proceeds from the sale of Lot 9.  For example, the family court found the intent behind the final order was to divide the proceeds “after taking into account payoff of the mortgage.”  The language of the final order, however, might suggest that the mortgage is not to be considered at all since Husband agreed “to be responsible for the payment of the outstanding mortgage.”  Nevertheless, Wife only sought relief based on a ratable share of the total sale prices of Lot 9 and Lot 6.  See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (holding issues not raised to or ruled upon by the trial court may not be considered on appeal).  In this regard, the family court’s adoption of Wife’s rationale was reasonable in light of the language of the agreement, and therefore, the family court did not err in granting the relief requested.   

IV. Attorney’s Fees

Husband argues the family court erred in awarding Wife attorney’s fees because the court did not find him in contempt, and therefore, the court had no basis for awarding attorney’s fees.  We disagree.

When a party in an action seeks attorney’s fees, the family court has the statutory authority to award “a reasonable sum for the claim if it appears well-founded.”  S.C. Code Ann. § 20-7-420(A)(38) (Supp.2006).  An attorney’s fees award is within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion.  Davis, 372 S.C. at 88, 641 S.E.2d at 458.

Our review of the record reveals no abuse of discretion.  Wife’s attorney’s fees were incurred as a result of a contempt proceeding involving Husband.  Wife initiated the action in a good faith belief that Husband was willfully disobeying a prior order of the family court.  While we find Husband was not technically in contempt, Wife incurred attorney’s fees and costs in an effort to enforce compliance with a previous court order.  See Christy v. Christy, 317 S.C. 145, 150-51, 452 S.E.2d 1, 4 (Ct. App. 1994) (holding award of attorney’s fees against a husband was proper even though the family court failed to find the husband in contempt because the fees were incurred as a result of the contempt proceeding and the matter was initiated by the wife to force compliance with the court’s order).  Therefore, Wife’s claim for attorney’s fees is well founded, and we find no abuse of discretion in the family court’s award of attorney’s fees. 


For the foregoing reasons, the order of the family court is



[1] We decide this case without oral argument pursuant to Rule 215, SCACR.