                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

             Michael Landry, Petitioner,

             v.

             Angela Landry, Respondent.

             Appellate Case No. 2019-000843



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                        Appeal From Greenville County
              The Honorable Rochelle Y. Conits, Family Court Judge


                              Opinion No. 27968
                  Heard February 11, 2020 – Filed May 13, 2020


                         REVERSED AND REMANDED


             Rhett D. Burney, of Rhett Burney, PC, of Simpsonville,
             and J. Falkner Wilkes, of Greenville, for Petitioner.

             Larry Keith Wood, of Larry K. Wood, P.A., of Mauldin,
             for Respondent.


JUSTICE HEARN: We granted Michael Landry's petition for a writ of certiorari
to determine whether the court of appeals erred in affirming the family court's denial
of his motion under Rule 60(a), SCRCP, to correct an alleged clerical error in a final
order. We reverse the decision of the court of appeals and remand to the family
court for a new hearing.
                 FACTUAL/PROCEDURAL BACKGROUND
       Michael Landry (Husband) filed an action against Angela Landry (Wife)
seeking a divorce on the ground of one year's continuous separation. The parties
were scheduled for a contested hearing before the family court on December 6, 2016.
On the morning of trial, the parties drafted and signed a handwritten agreement
resolving all of the issues between them except for the divorce. Thereafter, the
parties informed the court they had reached a final agreement, marked the agreement
as Plaintiff's Exhibit 1, and submitted it to the court for approval. The agreement,
which consisted of three pages and seventeen paragraphs, determined the issues of
alimony, equitable distribution of property, child support, custody and visitation of
the minor child, and attorney's fees. The terms of the agreement were not read into
the record; instead, the court questioned both parties about their general
understanding of the agreement and whether they entered into it freely and
voluntarily. Satisfied with the parties' responses, the court stated it would approve
the agreement and make it the final order of the court.

       As requested by the family court, Husband's attorney drafted the order,
incorporating the handwritten agreement by typing its terms into the final order.
After sending it to opposing counsel for his approval, Husband submitted the order
to the family court judge, who signed it on January 18, 2017. Nine weeks later,
Husband noticed the order contained a provision requiring him to pay Wife one-half
of his military retirement benefits—the focal point of this appeal. Specifically,
paragraph 2 of the final order, which was not part of the parties' handwritten
agreement, stated: "Husband shall pay wife one-half of his Airforce retirement[.]
The Defendant will as soon as possible make application for her portion of the
benefits to be paid directly to her relieving him of any obligation to continue to pay
her portion out of his funds." However, the handwritten agreement did mention
Husband's military retirement in paragraph 6, which stated: "The husband's alimony
payments, child support payments, and ½ of military retirement for December 2016
shall be paid by husband to wife once the TSP1 is divided by QDRO. The amount is

1
  The Thrift Savings Plan (TSP) is a retirement savings and investment plan for
Federal employees and members of the uniformed services. Established by Congress
in the Federal Employees' Retirement System Act of 1986, the TSP is a defined
contribution plan that provides the participant with retirement income based on how
much is paid into the account during employment and earnings accumulated over
time. What is the Thrift Savings Plan (TSP)?, THRIFT SAVINGS PLAN,
https://www.tsp.gov/PlanParticipation/AboutTheTSP/index.html (last visited Feb.
5, 2020).
$2,923.00." Nevertheless, believing the addition of paragraph 2 to be a mistake—
albeit one made by his own attorney in drafting the order—Husband moved for relief
under Rule 60(a), SCRCP, based upon a clerical mistake "arising from oversight or
omission."

       The court held a hearing on the motion. Noticing that a provision in the
handwritten agreement referenced Husband's military retirement benefits, the court
questioned Husband's counsel as follows: "Well, wait a minute, Paragraph 6 says,
'The husband's alimony payments, child support payments, and one half of the
military retirement.' It says that doesn't it?" Husband's counsel answered
affirmatively. Regarding paragraph 2 at issue, the court asked Husband's counsel,
"Well, why in the world would you add that if, y'all drafted it, why did y'all add that
if it wasn't your agreement?" Husband's counsel replied, "I don't know why we put
that in there. All I can tell you, I know why we put the agreement in writing. That
was so there would not be any misunderstanding. Both parties signed that. We
presented that to the court. The only reason we typed it from that point on was
because it looked neater." Wife's counsel opposed the motion, arguing the parties
did in fact agree to share Husband's military retirement benefits.

       Thereafter, the court denied the motion, finding Husband should have
requested relief pursuant to Rule 59(e), SCRCP, rather than through Rule 60(a),
SCRCP, and accordingly, the court lacked jurisdiction to consider the merits of the
motion. Alternatively, the court found the parties had agreed that one-half of
Husband's military retirement benefits would be paid to Wife. Husband appealed to
the court of appeals, which affirmed the family court's decision in an unpublished
per curiam opinion pursuant to Rule 220(b), SCACR. Husband petitioned for a writ
of certiorari, which this Court granted.

                               ISSUE PRESENTED
      Did the court of appeals err in affirming the family court's order denying
Husband's motion under Rule 60(a), SCRCP, to correct the final order by removing
a provision that was allegedly included by mistake and to which the parties
purportedly did not agree?

                            STANDARD OF REVIEW

      On appeal, this Court reviews the family court's legal and factual issues de
novo. Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). Therefore,
in appeals taken from the family court, the appellate court may find facts in
accordance with its own view of the preponderance of the evidence. Lewis v. Lewis,
392 S.C. 381, 384, 709 S.E.2d 650, 652 (2011). However, a family court's
evidentiary or procedural rulings will not be reversed on appeal absent an abuse of
discretion. Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2. In reviewing decisions
to grant or deny motions under Rule 60, SCRCP, the abuse of discretion standard
applies. See Ex Parte Carter, 422 S.C. 623, 631, 813 S.E.2d 686, 690 (2018). An
abuse of discretion occurs when the ruling is controlled by an error of law, or when
based on factual conclusions, is without evidentiary support. McKinney v. Pedery,
413 S.C. 475, 482, 776 S.E.2d 566, 570 (2015).

                                   DISCUSSION

       Husband contends both the family court and the court of appeals erred in
rejecting Rule 60(a) as a vehicle for correcting the order to conform it to the parties'
original intent. Conversely, Wife asserts Rule 60(a) is inapplicable because
Husband seeks to change the scope of the judgment and he forfeited his ability to
challenge the order by failing to file a Rule 59(e) motion. We disagree that Rule
59(e) afforded the only avenue of relief. However, because the agreement is
ambiguous as to whether the parties actually intended to permanently divide
Husband's military retirement benefits, and that fact was never clarified during the
court's initial approval of the agreement, we decline to adopt Husband's position at
this posture and instead remand to the family court for that determination.2

       We begin by addressing whether the family court erred in finding that it lacked
jurisdiction to consider the substance of Husband's motion because he was
procedurally required to seek relief under Rule 59(e) rather than Rule 60. It is well-
established that a Rule 59(e) motion to alter or amend a judgment must be served
within ten days from receiving notice of entry of the order. Rule 59(e), SCRCP;
Overland, Inc. v. Nance, 423 S.C. 253, 256-57, 815 S.E.2d 431, 433 (2018). In
contrast, Rule 60 applies to specific contexts and does not impose a ten-day
jurisdictional requirement. Particularly relevant is Rule 60(a), SCRCP, which
enables the court on its own initiative or on a party's motion to correct clerical
mistakes "arising from oversight or omission." However, not all mistakes may be



2
  Husband also argues the court of appeals erred in applying Brown v. Brown, 392
S.C. 615, 709 S.E.2d 679 (Ct. App. 2011), to the facts of this case. However,
because our analysis of the family court's decision is dispositive, we need not address
this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (finding an appellate court need not address remaining
issues on appeal when decision of a prior issue is dispositive).
corrected under this Rule, as the United States Court of Appeals for the Fourth
Circuit has explained:

      The basic distinction between clerical mistakes and mistakes that
      cannot be corrected pursuant to Rule 60(a) is that the former consist of
      blunders in execution whereas the latter consist of instances where the
      court changes its mind, either because it made a legal or factual mistake
      in making its original determination, or because on second thought it
      has decided to exercise its discretion in a manner different from the
      way it was exercised in the original determination.

Sartin v. McNair Law Firm, 756 F.3d 259, 265 (4th Cir. 2014) (quoting Rhodes v.
Hartford Fire Ins. Co., 548 Fed.Appx. 857, 859-60 (4th Cir. 2013) (per curiam)).
Instead, for Rule 60(a) to apply, the "mistake" must be one where "there is an
inconsistency between the text of an order or judgment and the . . . court's intent
when it entered the order or judgment," which "includes an unintended ambiguity
that obfuscates the court's original intent." Id. at 265-66.

       While the family court has authority to modify certain orders, including those
involving a child or ongoing child support and alimony payments upon a showing
of changed circumstances, it may not modify an order pertaining to equitable
property division. See Miles v. Miles, 393 S.C. 111, 120, 711 S.E.2d 880, 885 (2011)
(holding spousal support may be modified where requesting party demonstrates a
substantial change in circumstances); Moesley v. Moesley, 263 S.C. 1, 4, 207 S.E.2d
403, 404 (1974) (holding divorce decree may be modified with respect to custody
and child support); S.C. Code Ann. § 20-3-620(C) (2014) ("The [family] court's
order as it affects distribution of marital property shall be a final order not subject to
modification except by appeal or remand following proper appeal."). Further, it is
"exceedingly clear that the family court does not have the authority to modify court
ordered property divisions." Simpson v. Simpson, 404 S.C. 563, 571, 746 S.E.2d 54,
58-59 (Ct. App. 2013). The only exception to this general rule is when Rule 60 is
implicated.

       Specifically, Rule 60(a) provides a mechanism to modify an order that may
be non-modifiable under these general principles. Thompson v. Thompson, 428 S.C.
142, 149, 833 S.E.2d 274, 278 (Ct. App. 2019) ("[T]he family court has jurisdiction
to reconsider an otherwise un-modifiable property division in order to correct
clerical errors and in exceptional circumstances."). For example, the court allowed
modification of property division under Rule 60(a) to correct a clerical error that
accounted for the same trailer twice in the court order. Clark v. Clark, 423 S.C. 596,
609-10, 815 S.E.2d 772, 779-80 (Ct. App. 2018). In Simmons v. Simmons, 392 S.C.
412, 414-15, 709 S.E.2d 666, 667 (2011), we found the family court had subject
matter jurisdiction to revisit a court-approved divorce settlement agreement when
the alimony portion was declared void on appeal. Moreover, the court of appeals
has found exceptional circumstances existed to allow modification under Rule
60(b)(5). See Johnson v. Johnson, 310 S.C. 44, 47, 425 S.E.2d 46, 48 (Ct. App. 1992)
(holding if justice so requires, the court may relieve a party of a final consent order
if it was based on a vacated final consent order in a related case).

       Here, in its order denying Husband's Rule 60(a) motion, the family court held
the relief Husband sought did not fall within the scope of Rule 60(a), and that he
instead should have filed a motion pursuant to Rule 59(e). Under this state's
precedent discussed above, this determination was error. Because we find the family
court erred in denying Husband's motion based on a lack of jurisdiction, we now
consider the merits of Husband's claim.

       In his Rule 60(a) motion, Husband argued the provision was inadvertently
added during the process of incorporating the terms of the handwritten agreement
into the final order and that the parties did not agree to that term. In contrast, Wife
contended Husband did agree to the provision. Both in its ruling from the bench and
its findings in the written order, the family court indicated Husband agreed to pay
one-half of his military retirement benefits to Wife. However, we are unable to
discern from the record any evidence which supports that finding. It is possible the
family court could have found that the provision of the handwritten agreement
referencing Husband's payment of one-half of his military retirement benefits to
Wife for the month of December 2016 supported this conclusion.3 While the court
also could have simply believed Wife's counsel when he said the parties agreed to
divide Husband's military retirement, it is well settled that statements by counsel are
not evidence. Ex parte Morris, 367 S.C. 56, 64, 624 S.E.2d 649, 653 (2006) ("It is
well established that counsel's statements regarding the facts of a case and counsel's

3
  At oral argument, Husband's counsel explained that this provision was included in
the agreement for the purpose of paying Wife arrearages in alimony and child
support in exchange for dismissing her contempt action against him. He stated
Husband's military benefits were mentioned in the provision because he wanted to
specify where the approximately $691.00 of the $2,923.00 total stated in the
agreement would come from. He further clarified that this was the only amount of
Husband's military retirement the parties agreed would be paid to Wife, which is
why paragraph 10 of the agreement stated, "Each party will retain their own . . .
retirement accounts . . . to the exclusion of the other except as specifically set out in
this agreement."
arguments are not admissible evidence. Consequently, the family court may not base
necessary findings of fact and conclusions of law solely on counsel's statements of
fact or arguments." (citations omitted)).

        Here, there was no hearing with testimony from the parties to determine
whether they agreed to the provision at issue, and we cannot infer findings of fact
which do not appear in the record. See Rule 26(a), SCRFC ("An order or judgment
pursuant to an adjudication in a domestic relations case shall set forth the specific
findings of fact and conclusions of law to support the court's decision."); Holcombe
v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991) (noting an order in
compliance with Rule 26(a) contains sufficient findings of fact in support of its
conclusions); Id. ("[W]hen an Order is issued in violation of Rule 26(a), this Court
may remand the matter to the trial court or, where the record is sufficient, make its
own findings of fact in accordance with the preponderance of the evidence.").
Although parties are typically bound by the terms set forth in their agreement, we
believe the agreement at issue is ambiguous such that parol evidence of the parties'
intent must be considered to determine what the parties agreed to with respect to this
fairly substantial marital asset. Klutts Resort Realty, Inc. v. Down'Round Dev. Corp.,
268 S.C. 80, 89, 232 S.E.2d 20, 25 (1977) ("[I]t is the general rule that parol evidence
is admissible to show the true meaning of an ambiguous written contract.").
Therefore, we remand for the family court to take testimony and make findings in
support of its decision. See McKinney v. McKinney, 274 S.C. 95, 104, 261 S.E.2d
526, 530 (1980) (noting the family court "should have resolved the ambiguity
apparent on the face of the agreement by receiving testimony and evidence as to the
intentions of the parties and the circumstances of the agreement").

       The procedure utilized by the parties and the court in approving the
handwritten agreement reached immediately before the hearing has hampered our
ability to resolve this case. Normally, we are not inclined to provide litigants with
another "bite at the apple" in presenting their case. See Lewis, 392 S.C. at 393 n.11,
709 S.E.2d at 656 n.11. Moreover, a party whose conduct induces error is generally
not in a position to complain on appeal. 5 C.J.S. Appeal and Error § 1082 (2019)
("Error due to the fault, or in favor, of the appellant or plaintiff in error ordinarily
will not result in a reversal . . . . Generally, to procure the reversal of a judgment, the
commission of error without fault on the part of the party complaining must be
shown."). However, without any testimony as to what the parties intended in
paragraph 6 of the handwritten agreement, even our de novo standard of review does
not enable us to find the parties agreed to share Husband's military retirement
benefits. Accordingly, we take this opportunity to remind the bench and the bar of
the proper procedure for approving family court agreements.
       The approval of agreements reached between parties in domestic litigation
dates back to 1983. Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627
(1983) ("In all decrees entered after this decision, the parties may contract
concerning their property settlement and alimony, but the submitted agreement must
be approved by the family court."). This court has also mandated statewide
mediation of all contested family court cases. Re: Circuit Court Arbitration and
Mediation and Family Court Mediation Pilot Program 2015-11-12-04 (S.C. Sup.
Ct. Order dated Nov. 12, 2015). Under the ADR Rules, a final mediated agreement
is reduced to writing in the form of a Memorandum of Agreement prior to approval
by the court. Rule 6(g), SCADR. However, even when mediation does not produce
a final agreement, counsel often continue to negotiate until a final agreement is
reached, sometimes on the eve of trial.

       When parties choose to resolve their disputes through settlement rather than
participate in a contested hearing, the better practice is for counsel to reduce the
agreement to writing in a formal, typed document duly initialed and signed by the
parties. Indeed, this Court has noted that "out of court agreements should be reduced
to writing and submitted to the court for approval." Small v. Small, 286 S.C. 87, 90,
332 S.E.2d 769, 771 (1985). At the approval hearing, the agreement or a copy of it
should be marked as an exhibit, and the parties should be examined under oath
concerning their understanding of the agreement, its voluntary nature, their
satisfaction with counsel, and whether there has been a full disclosure of all marital
assets and debts. Thereafter, counsel should request the court admit the agreement
into evidence.

       While having a formal, typed document introduced into evidence and
ultimately attached to the family court's final order is preferred, we recognize that
sometimes, as here, an agreement is reached immediately before a scheduled
contested hearing and is not reduced to a formal typed document. See Small, 286
S.C. at 88, 332 S.E.2d at 770 (involving a divorce settlement agreed upon in open
court). In that case, the terms of the agreement should be carefully stated upon the
record, and thereafter, the parties should be thoroughly questioned under oath
concerning their understanding of the terms of the agreement, the voluntariness with
which the agreement was entered, their satisfaction with counsel, and whether there
has been a full financial disclosure. See Liles v. Liles, 272 S.C. 511, 513, 252 S.E.2d
886, 887 (1979) (concluding "the settlement agreement became binding when it was
read into the record"); Rule 43(k), SCRCP ("No agreement between counsel
affecting the proceedings in an action shall be binding unless reduced to the form of
a consent order or written stipulation signed by counsel and entered in the record, or
unless made in open court and noted upon the record, or reduced to writing and
signed by the parties and their counsel." (emphasis added)).

        Moreover, because family courts are courts of equity, their primary focus is
whether the parties' agreement is fair and reasonable. See Fischl v. Fischl, 272 S.C.
297, 300, 251 S.E.2d 743, 745 (1979). Naturally, this inquiry begins with
determining whether the agreement was voluntarily given. See Skipper v. Skipper,
290 S.C. 412, 413, 351 S.E.2d 153, 154 (1986). In deciding whether an agreement
is fair, it is not the court's task to decide the parties' rights but rather to determine
whether the agreement is within the bounds of reasonableness from both a
procedural and substantive perspective. Burnett v. Burnett, 290 S.C. 28, 30, 347
S.E.2d 908, 909 (Ct. App. 1986). In the context of property settlement, the court is
required to consider the parties' financial declarations.4 See Rule 20(a), SCRFC;
Kane v. Kane, 280 S.C. 479, 483-84, 313 S.E.2d 327, 330 (Ct. App. 1984). The
family court's obligation to review the fairness of an agreement includes a duty to
examine plain, unambiguous agreements. Miller v. Miller, 280 S.C. 314, 315, 313
S.E.2d 288, 289 (1984). Ambiguous agreements, however, require the family court
to determine the intent of the parties before making a ruling as to fairness and to
consider several factors as enumerated in our family court jurisprudence. See
McKinney, 274 S.C. at 103, 105, 261 S.E.2d at 530-31 (holding the parties'
agreement was ambiguous and requiring the family court to try to resolve the
ambiguities before ruling upon the fairness of the agreement). See, e.g., Lucas v.
Lucas, 279 S.C. 121, 122-23, 302 S.E.2d 863, 864 (1983) (considering the parties'
contributions to the marriage); Drawdy v. Drawdy, 275 S.C. 76, 77, 268 S.E.2d 30,
30 (1980) (finding it incumbent on the family court to consider the economic
circumstances and contributions of each party); Doe v. Doe, 286 S.C. 507, 514, 334
S.E.2d 829, 833 (Ct. App. 1985) (noting the trial judge considered the length of the
marriage, the parties' ages, incomes, needs and obligations, financial status, and
relative contributions to the marriage).

       Because the parties' agreement in this case was ambiguous, the family court
was required to determine the parties' intent and resolve the ambiguities as part of
its obligation to review whether the agreement was fair and reasonable. Based on
the record presented to us, neither at the initial hearing approving the parties'
agreement nor the subsequent hearing on Husband's Rule 60(a) motion was any
evidence received by the family court as to what the parties intended by paragraph
6 in the handwritten agreement regarding Husband's military retirement benefits.

4
 While the parties' financial declarations were not included in the record on appeal,
Wife's counsel indicated at oral argument they were submitted to the family court.
Therefore, we cannot discern from the record before us any evidence supporting the
family court's finding that the final order incorporated the parties' intent with respect
to this significant marital asset. Accordingly, we remand to the family court to make
this determination.

                                   CONCLUSION

       For the foregoing reasons, we conclude the court of appeals erred in affirming
the family court's denial of Husband's Rule 60(a) motion based on a lack of
jurisdiction, and we remand for an evidentiary hearing to determine what the parties
actually agreed to with respect to Husband's military retirement benefits and whether
Husband is entitled to relief.

REVERSED AND REMANDED.

BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.
