It is important if you are considering a settlement agreement that includes a provision for lump sum alimony that you are aware of the non-modifiable nature of lump sum alimony. In fact, the family court will not have the jurisdiction to modify even the payment structure of lump sum alimony, even if there is a significant reduction in the paying party’s income and resources.
Lump sum alimony is defined in South Carolina Code Ann. § 20-3-130(B)(2), which provides:
(B)(2) Lump-sum alimony [is] a finite total sum to be paid in one installment, or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award be of a finite and nonmodifiable nature. (emphasis added).
Lump sum alimony is non-modifiable, and the family court cannot modify the provision, even where the alimony is payable in installments. Blakey v. Blakely, 249 S.C. 623, 155 S.E.2d 857 (1967). Accord S.C. Code Ann. § 20-3-130(G) which provides that the parties may agree in writing, if properly approved by the Court, that the payment of alimony as set forth within the Agreement is non-modifiable and not subject to subsequent modification by the Court.
“While the family court normally has the authority to modify alimony, once an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.” Maxwell v. Maxwell, 375 S.C. 182, 187, 650 S.E.2d 680, 683 (citing Degenhart v. Burriss, 360 S.C. 497, 500-1, 602 S.E.2d 96, 98 (Ct.App.2004)). See also Payne v. Payne, 2007 S.C. App. Unpub. LEXIS 27 (S.C. Ct. App. Sept. 20, 2007) (unpublished opinion).
The family court has the authority to modify alimony agreements “unless the agreement unambiguously denies the court jurisdiction” to do so. Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983) (emphasis added). “In Moseley, our Supreme Court adopted a rule allowing parties to specifically agree that the court may never modify the terms of their agreement. This decision acknowledged that the parties could contract out of the family court’s continuing jurisdictional supervision of their relationship.” Payne citing Moseley, 279 S.C. at 353, 306 S.E.2d at 627. “[O]nce an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.” Degenhart v. Burriss, 360 S.C. 497, 500-01, 602 S.E.2d 96, 98 (Ct. App. 2004). The parties may specifically “agree that the amount of alimony may not ever be modified by the court.” Croom v. Croom, 305 S.C. 158, 161, 406 S.E.2d 381, 383 (Ct. App. 1991).
Moreover, our Supreme Court has held, “When a contract is unambiguous, clear and explicit, it must be construed according to the terms the parties have used. The judicial function of a court of law is to enforce a contract as made by the parties, and not to rewrite or distort, under the guise of judicial construction, contracts, the terms of which are plain and unambiguous.” Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003)(citations omitted)(emphasis added). As the Court stated in Ellis v. Taylor, 316 S. C. 245, 449, S. E. 2d 487 (1994), “courts must enforce an unambiguous contract according to the terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully. It is not the job of the court to protect litigants from entering into unwise agreements.” (emphasis added). See also, Smith–Cooper v. Cooper, 344 S.C. 289, 295, 543 S.E.2d 271, 274 (Ct.App.2001) (holding that where an agreement is clear on its face and unambiguous, “the court’s only function is to interpret its lawful meaning and the intent of the parties as found within the agreement.”)