The July 31, 2024, Supreme Court opinion in Rish v. Rish, reverses a Court of Appeals decision in Rish v. Rish, 435 S.C. 681, 868 S.E.2d 719, (Ct. App. 2021), that the family court lacks subject matter jurisdiction to modify “nonmodifiable” alimony.
Rish presents a lengthy litigation history. The Rishes divorced in 2003, reaching a court-approved agreement making Husband’s $650 per month alimony obligation “nonmodifiable.” Despite that provision, Husband filed an action in 2010 to reduce his obligation and, in 2011, the family court reduced his alimony to $550 per month. The 2011 order did not continue the nonmodifiable provision and Wife did not appeal that order.
In 2016 Husband filed to modify or terminate his alimony and, in 2018, the family court terminated his alimony, finding the 2011 order controlled and their alimony was modifiable. Wife filed post-trial motions, arguing the 2003 order controlled and, therefore, the family court lacked subject matter jurisdiction to modify alimony. After this motion was denied, Wife appealed.
The Court of Appeals partially accepted Wife’s argument. It refused to vacate the 2011 order, finding Wife’s seven-year delay in challenging that order was unreasonable and, therefore, she was not entitled to relief under Rule 60(b)(4), SCRCP, which requires motions challenging subject matter jurisdiction be made within a “reasonable time.” However, it vacated the 2018 order, finding the 2003 order controlled, making alimony nonmodifiable, and, therefore, the family court lacked subject matter jurisdiction to modify alimony. The Supreme Court accepted certiorari.
In reversing the Court of Appeals, the Supreme Court noted that it “has recently corrected our prior cases that imprecisely and inaccurately referred to different procedural and substantive rules as limitations on a court’s ‘subject matter jurisdiction.’” The Rish litigation had relied upon S.C. Code Subsection 20-3-130(G), which allows, “The parties may agree in writing if properly approved by the court to make the payment of alimony as set forth in items (1) through (6) of subsection (B) nonmodifiable and not subject to subsequent modification by the court.” In Rish, the parties had initially agreed to make alimony nonmodifiable. The Supreme Court held that such agreement did not deprive the family court the authority—i.e., subject matter jurisdiction—to hear alimony modification claims. Such agreements merely deprive the family court of the power to modify alimony over one party’s objection.
The Supreme Court noted that had the 2011 order carried over the nonmodifiable language, the family court would have lacked authority to modify alimony in 2018. Had Wife objected to any modification in 2011, the family court would have been powerless to modify alimony. However, by failing to object in 2011, the 2011 order controlled and alimony was therefore modifiable. The Supreme Court reversed the Court of Appeals and affirmed the family court’s termination of Husband’s alimony obligation.
In affirming the family court, the Supreme Court noted Husband’s declining health made it “virtually impossible” to pay the agreed-upon alimony. However, the Supreme Court noted that Subsection 20-3-130(G) remained valid and family courts will enforce agreements that render alimony nonmodifiable.
In a footnote, the Supreme Court addressed the issue of enforcing nonmodifiable alimony agreements when the obligor can no longer pay alimony:
Our experience teaches us, however, that many will still fall into the trap of having agreed never to modify an alimony payment they eventually become unable to make. We recognize that when this situation arises, as a practical matter, the party will simply be unable to make the payments. For this reason, family courts have historically reduced the unpaid alimony obligations to a civil judgment in favor of the supported spouse.
This may be the Supreme Court’s experience. In 30 years of family law practice, it has not been mine.
Chief Justice Beatty—whose last official day on the court was the day this opinion issued—dissented in part. He agreed that Wife could not now contest the 2011 modification but held that Wife did not waive her right to argue alimony remained nonmodifiable by failing to raise that claim in the 2011 litigation. He felt “the majority’s reasoning will deter future alimony recipients, who recognize temporary financial distress of alimony payers, from considering benevolence under the circumstances. This decision will lead to unnecessary protracted litigation.” In a footnote, the majority opinion addressed this concern by noting litigants could agree to an alimony modification but make that new agreement nonmodifiable.
In my experience the courts often confuse the authority of the court to do certain acts with the power of the court to hear a case. For example, the family courts have subject matter jurisdiction to hear visitation cases but lack the power to award visitation to someone who simply really likes a particular child. Rish helps clarify that distinction. In attorney lingo, it’s the difference between a Rule 12(b)(1), SCRCP motion (addressing subject matter jurisdiction) with 12(b)(6) (addressing whether a valid claim has been pled). Rish also affirms that litigants can bind themselves by making alimony nonmodifiable—something I never understood to be in dispute.
I believe the South Carolina legislature was unwise to allow litigants to bind themselves to nonmodifiable alimony. I’ve seen too many pro se litigants—essentially cheap husbands—agree to nonmodifiable alimony and have lifelong problems with an obligation they cannot meet or change, but which can be enforced through incarceration. I would prefer our legislature remove the provision allowing parties to agree to make permanent periodic alimony nonmodifiable. Absent that, I would like to see our family courts routinely questions litigants before approving such agreements on the potential ramifications and pitfalls if their circumstances worsen in the future.
I am confused with your statement that “I would prefer our legislature remove the provision making permanent periodic alimony nonmodifiable.” Doesn’t SC Family Law allow the readdress of Permanent Periodic Alimony under certain circumstances (eg, Retirement)? Referencing my particular case, I have a Federally Mandated forced retirement. I offered all of my retirement to be Marital when her own Forensic Accountant Expert acknowledged that only 76% of it was marital (and we proved in court that she used incorrect calculations and that in reality it was only approximately 50% that was marital) if we had alimony end when I retire, approximately 3.5 years from the date of trial. The Judge accepted my offer of making all of my retirement marital, however, then gave her Permanent Periodic Alimony. As a side she is a professional in the health care industry making well into the 6 figures. By your statement, as I read it, your saying that I should not be able to readdress alimony once retired to get it reduced or eliminated. Correct me if I’m understanding you incorrectly, please. I am currently appealing this and other aspects of the order.
Dear Mr. Updegraff,
You caught an omission in the blog. I meant to write “I would prefer our legislature remove the provision allowing parties to agree to make permanent periodic alimony nonmodifiable.” I left out the italicized language. Yes, permanent periodic alimony is generally modifiable. However Subsection G allows parties to commit to nonmodifiable alimony. I believe allowing this option is a mistake.