Arnal v. Arnal

Citation363 S.C. 268,609 S.E.2d 821
Decision Date07 February 2005
Docket NumberNo. 3943.,3943.
CourtCourt of Appeals of South Carolina
PartiesLaura Lawton ARNAL, Respondent/Appellant, v. David Emil ARNAL, Appellant/Respondent.

Sally G. Calhoun, of Beaufort, for Appellant-Respondent.

Susan C. Rosen, Robert N. Rosen and Donald B. Clark, all of Charleston, for Respondent-Appellant.

HEARN, C.J.:

David Arnal (Husband) appeals from the final order of the family court which granted the parties a divorce, divided the marital property, imputed income to Husband, established child support and visitation, and required him to pay attorneys' fees and guardian ad litem fees. Laura Lawton Arnal (Wife) also appeals, contesting the equitable distribution and the determination of marital property. We affirm in part, reverse in part, and remand.

FACTS

The parties were married in 1995. In 1999, they had a son who was diagnosed with Down's Syndrome. Both prior to and during the parties' marriage, Husband was employed by Wife's father in his development company. Wife's father, Charles Fraser, was one of the main developers of Hilton Head Island, where the parties resided. The parties separated in 1999, shortly after the child was born.

Wife and child now reside in Brevard, North Carolina in a home purchased by one of two trusts under which she is a beneficiary. Father remained in Hilton Head and started his own consulting and land development business. Wife's main source of income is from the family trusts. She is also employed part time in order to be able to devote time to the child's special needs.

This case has a very litigious history. Wife initiated the action seeking custody of the child, child support, division of the property, and ultimately a divorce. Husband answered, requesting joint legal custody, equitable division, and rehabilitative or lump sum alimony.

A temporary hearing was held in January 2000, in which the parties were granted joint legal custody, with Wife having physical custody and decision-making authority with regard to the child's treatment. That temporary order granted Husband visitation in Brevard only and required him to pay $621.78 a month in child support.

In May 2000, Husband moved for a change of custody as a result of Wife's failure to begin therapies for the child. Additionally, Husband contended Wife had failed to complete the child's vaccinations. By the time of the hearing, Wife had commenced therapy and completed the vaccinations, so the change in custody was denied.

Husband then moved to compel discovery and to amend his pleadings to seek custody of the child. In return to Husband's motion, Wife sought the following relief: psychological testing of the parties; sole custody; sanctions for Husband's failure to comply with Rule 11, SCRCP; and a restraining order against Husband. The court compelled Wife to comply with discovery, declined sanctions against Husband, dismissed the motion for a restraining order, and continued the issue of custody of the child. Wife's request for psychological testing was abandoned.

In October 2000, the family court denied Wife's request for sole custody and granted Husband overnight visitation in the Brevard area and visitation in Hilton Head once a month. A second order required Husband to answer interrogatories and produce requested documents.

Thereafter, Wife filed a rule to show cause against Husband seeking to compel him to pay his portion of the medical expenses for the child. The court found Husband in contempt and ordered him to pay the expenses and $1,000 in attorney's fees. Wife filed a subsequent rule to show cause in December 2000, after Husband failed to pay medical expenses and failed to respond to discovery requests. Husband had complied by the date of the hearing, so the court did not hold him in contempt, though it reserved the issue of legal fees, required Husband to pay the medical expenses, and ordered him to produce documents.

In February 2001, upon Wife's motion, the family court reviewed Husband's visitation. The court concluded that because the child "ha[d] been suffering illnesses since December and the final hearing in this matter [was] scheduled shortly, and since it [was] the cold and flu season" it would be in the child's best interest for all visitation to occur in Brevard rather than having the child travel to Hilton Head pending the final hearing.

Wife subsequently filed a motion to hold Husband in contempt for his failure to respond to discovery and produce documents that he claimed contained a confidentiality agreement involving investment property he owned with others. The family court held Husband in contempt and ordered him to pay $10,000 in legal fees to Wife. The same order relieved Husband's counsel and appointed a new guardian ad litem for the child. Husband did not appeal the contempt order until the filing of the current appeal.

This action was tried in April 2001. In its final order, the family court granted Wife sole custody of the child and gave her the right to control all medical and educational decisions for the child. Husband received visitation on alternating weekends, but the first and third visitation of the month were required to be in Brevard rather than at Husband's home in Hilton Head. Additionally, the visitation in Brevard was limited to no more than one hour travel, and Husband was required to provide documentation to that effect. The visitation restrictions were to end when the minor reached forty-three months of age.1

The final order also divided the marital property. The court granted Husband the properties he acquired through his partnership and split the personal possessions. Additionally, in calculating child support, the court imputed income to Husband in the amount of $9,060.62 per month and imputed income to Wife in the amount of $5,012.40 per month. According to their sworn financial declarations filed pursuant to Rule 20, SCRFC, Husband earned $3,656 per month and Wife earned $4,750 per month. Husband was required to pay $1,564 in child support and to pay his pro-rata share (64%) of uncovered medical expenses. The court required Wife to apply for Medicaid and to research and apply for any other financial assistance available in order to pay the costs of caring for the child.

The family court ordered the guardian's fee to be paid equally by the parties up to the date of trial and required Husband to bear the full cost of the guardian's fee at trial. The court found Husband should be responsible for the full fee at trial because "the issue of visitation was tried primarily because [Husband] would not accept the Guardian ad Litem's recommendations." Finally, after analyzing the appropriate factors, the court ordered Husband to pay $65,000 in attorneys' fees in addition to the $10,000 and $1,000 awards previously ordered.

Husband filed a motion for reconsideration, challenging many aspects of the family court's order. The motion was denied in October 2001.

Subsequent to the final order, Wife filed a rule to show cause seeking to hold Husband in contempt on the grounds that: Husband failed to pay uncovered medical expenses, Husband failed to pay his August child support in full, Husband failed to provide documentation he was not traveling more than one hour from Brevard, and Husband failed to pay the remaining balance of $500 on the previous attorneys' fees award of $1,000.

The hearing was held on November 6, 2001. During the hearing, Wife presented the fee affidavit of one of her two attorneys. The attorney was not present, and Husband requested the hearing be continued so that he could cross-examine the attorney on her fee. The subsequent hearing was held two days later.

Following the second hearing, the family court issued two orders in February 2002. One found Husband should pay the increased child support as of August 1, but did not find him in willful contempt for failing to do so. Additionally, he was found in contempt for failing to make timely payments on medical bills and thereafter required to pay uncovered medicals within fourteen days from the date Wife mailed him notice. Husband was found in contempt for failing to pay the remaining balance on the $1,000 attorneys' fees and was ordered jailed for ten days with the ability to purge the contempt by paying the $500 remaining.

The second order required Husband to pay $4,727.25 in attorneys' fees as a result of Wife's institution of the rule to show cause. This amount was over $2,000 more than the amount submitted at the initial hearing on the rule to show cause. Husband has appealed the Amended Final Order, the order denying his motion for reconsideration, and the orders resulting from the rule to show cause.

STANDARD OF REVIEW

In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v. Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct.App.1996). However, this broad scope of review does not require us to disregard the family court's findings. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).

LAW/ANALYSIS
A. HUSBAND'S APPEAL
1. Whether the family court erred in imputing income to Husband

Husband asserts the family court erred by imputing to him an additional $5,403.56 per month in income for calculation of child support.2 We agree.

The South Carolina Child Support Guidelines define "income" as "the actual gross income of the parent if employed to full capacity, or potential income if unemployed or underemployed." 27 S.C.Code Ann. Regs. 114-4720(A) (Supp.2003). The guidelines further provide:

Potential Income. If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to
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