THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James C. Christy,                Appellant/Respondent,

Vida L. Christy,                Respondent/Appellant.

Appeal From Charleston County
John T. Black, Family Court Judge
F.P. Segars-Andrews, Family Court Judge
H.T. Abbott, III, Family Court Judge
Alvin C. Biggs, Family Court Judge

VACATED AND REMANDED

Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein, of Charleston, for appellant/respondent.

Robert N. Rosen, of Rosen, Rosen & Hagood, of Charleston, for respondent/appellant.

CURETON, J.: This domestic cross-appeal concerns the ability of a successor judge to sign a final order when a different judge presided at trial but became disabled before filing findings of fact and conclusions of law. See Rule 63, SCRCP. We vacate the orders on appeal and remand the action to the family court.

James Christy (the husband) and Vida Christy (the wife) were divorced by order of the family court dated August 2, 1989. Pursuant to the divorce decree, the wife was awarded $2,500 per month in alimony. On appeal, the alimony was reduced by this court to $1,750 per month terminable on the death or remarriage of the wife. Later, these parties again appeared before this court to litigate the effective date for the reduction of the alimony.

The husband filed this third action in June of 1997 requesting termination or reduction of alimony based on the wife's alleged "long-term, monogamous relationship with a paramour, which is tantamount to a common law marriage" and changes in his own financial circumstances. The wife answered and counterclaimed seeking an increase in alimony.

The Honorable Tommy B. Edwards bifurcated the issues. The issue of termination of alimony based on the wife's alleged common law marriage was tried first on September 16, 17, 25, 26, and November 4 of 1996 by the Honorable John T. Black. At the conclusion of the trial, Judge Black made no oral factual or legal findings on the record. However, according to Mr. Rosen, the wife's attorney, Judge Black stated in a side bar conference that he was not going to terminate the wife's alimony.

On July 3, 1997, Mr. Rosen sent Judge Black a proposed order containing findings of fact and conclusions of law. A copy of the proposed order was sent to the husband's counsel, Mr. Goldstein. Mr. Goldstein objected in writing to certain portions of the proposed order in a letter dated July 15, 1997. Mr. Rosen's legal assistant made Mr. Goldstein's requested changes pursuant to Judge Black's telephonic instructions to the assistant. On August 26, 1997, the assistant sent the revised order to Judge Black and Mr. Goldstein. Months thereafter, Judge Black suffered a stroke without having signed any order.

The husband filed a notice of appeal from the unsigned order. This court dismissed the action because there was no signed order. The husband filed a petition for a writ of mandamus in the supreme court requesting the court take the action in its original jurisdiction. The supreme court denied the petition.

The Honorable F.P. Segars-Andrews succeeded Judge Black as the presiding judge in this action. The husband filed a motion for a new trial pursuant to Rule 63, SCRCP. On January 14, 1998, Judge Segars-Andrews denied the motion finding Judge Black made:

findings of fact and conclusions of law in this case. Therefore, Rule 63 applies. While Judge Black's findings of fact and conclusions of law were not "filed," as Rule 63 literally requires, no case presented to the Court by either party interpreting Rule 63 requires such a filing or even defines what constitutes filing in this context.

Judge Segars-Andrews also found the husband should be equitably estopped from obtaining a new trial due to his request to the clerk of court for a trial date for the second portion of the bifurcated trial. Judge Segars-Andrews further concluded "a review of the transcript is not necessary in this matter and . . . the order may be signed by the successor judge without any further proceedings." Also on January 14, 1998, Judge Segars-Andrews signed the wife's original proposed order, without the husband's requested changes, refusing to terminate alimony. ⁽¹⁾ On June 15, 1998, the wife filed a motion, pursuant to Rule 60(a), SCRCP, to correct clerical errors on the ground the wrong final order was submitted to Judge Segars-Andrews. The husband objected on the ground the motion was filed in an attempt "to make the final order less assailable on appeal." Judge Segars-Andrews denied the motion.

The second portion of the case was heard by the Honorable Alvin C. Biggs on January 14, 15, and February 10, 1998. On April 6, 1998, Judge Biggs dismissed the husband's request for termination or modification of alimony based on a financial change of circumstances. Judge Biggs also dismissed the wife's counterclaim for an increase in alimony and awarded the wife costs. In a separate order dated June 30, 1998, Judge Biggs awarded the wife attorney fees and costs totaling $100,761.44.

Both parties appealed. The husband filed a motion in this court to remand to reconstruct the record or, in the alternative, for a new trial. As to the motion to remand, the husband argued that because the court reporter's tapes f