Subsection 20-3-130(G) of the South Carolina Code of Laws provides in part: "The parties may agree in writing if properly approved by the court to make the payment of alimony . . . nonmodifiable and not subject to subsequent modification by the court."

In a rare Domestic Relations decision, the South Carolina Supreme Court addressed 20-3-130(G) and the issue of non-modifiable alimony in the matter of Rish v Rish on July 31, 2024.  In fact it was one of two Domestic Relations decisions issued on the same day!

The facts are pretty simple:  in 2003 Wife and Husband agreed for Husband to pay Wife $650 in non-modifiable alimony. The agreement was reduced to writing and approved by the family court as required by 20-3-130(G).  In 2011 Husband filed for a modification of alimony, Wife did not object on the grounds of 20-3-130(G), and the Family Court reduced Wife's award to $550. Wife did not appeal. 

In 2018 Husband filed to terminate alimony due to declining health and retirement.  The Family Court terminated alimony relying on the 2011 order that changed the nature of the award from non-modifiable to modifiable.

The Court of Appeals reversed the Family Court's order as it related to the 2018 termination of alimony.  The Court found that 20-3-130(G) denied the trial court of "subject matter jurisdiction" to modify the 2011 Final Order.  It further found that Wife could not now appeal from the 2011 Final Order as too much had time had passed.

The Supremes first clarified the issue of subject matter jurisdiction as it is related to the approval of marital settlement agreements in the family court.  The Court clarified that that 20-3-130(G) did not deny the Family Court of subject matter jurisdiction to modify alimony, only that if the requirements of 20-3-130(G) were met the Family Court would not be permitted to modify alimony.  A fine distinction, perhaps, but an important one.

The Supreme Court then got down to the issue at bar and ruled with the Trial Judge, reversing the Court of Appeals. The 2011 ruling, to which Wife did not object on grounds of 20-3-130(G), nor appeal, did, in fact,  change the nature of the alimony award from "non-modifiable" to "modifiable."  The Court justified their ruling by stating:

We stress that if Kathy had raised the nonmodifiable issue in 2010 or 2011, and if the family court found their agreement complied with the requirements of subsection 20-3-130(G), then the family court would absolutely have been obligated to enforce the agreement and refuse to modify the alimony award in 2011. Similarly, if the 2003 agreement and order remained in effect in 2016, or if the parties agreed to include a "nonmodifiable" provision in the 2011 order that complied with subsection 20-3-130(G),5 such an agreement would have foreclosed the family court's termination of alimony in 2018.

Was this ruling harsh, overly technical, perhaps even results oriented as Husband was ill and the request was made in good faith? In dissent, the Chief stated as such:

In my view, 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.

So the old adage remains true once again:  You raise it or you waive it.  In answer to the question "How to modify non-modifiable alimony" - you get lucky!

Guy Vitetta

Charleston