Baker v. Baker, 0507
| Decision Date | 19 March 1985 |
| Docket Number | No. 0507,0507 |
| Parties | Annie J. BAKER, Respondent-Appellant, v. Howard E. BAKER, Sr., Appellant-Respondent. . Heard |
| Court | South Carolina Court of Appeals |
J.D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for appellant-respondent.
James H. Cassidy, of Robertson & Cassidy, Greenville, for respondent-appellant.
Respondent Annie J. Baker petitioned the family court to increase appellant Howard E. Baker's periodic alimony payments based on changes in her circumstances and his ability to pay. The court awarded an increase in payments and attorney's fees. We reverse.
In appeals from family courts this court can make findings of fact in accordance with its own view of the preponderance of the evidence. Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706, 708 (1984); Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773, 775 (1976).
In 1977 Mr. and Mrs. Baker were divorced and Mr. Baker was ordered to pay $950 per month alimony. In 1979 Mrs. Baker petitioned for a modification and the award was increased to $1150 per month plus part of bonuses. In 1981 Mrs. Baker filed this petition for a modification and the award was increased to $1475 per month plus part of bonuses. Mr. Baker is a textile engineer with Milliken and Company. Since 1979 his salary increased from $91,469 to $112,125 and rental income increased from $1420 to $8346. Mrs. Baker, 56, works at a Wal-Mart store and earns the minimum wage. Since 1979 she bought a $51,000 house, borrowed $14,000, and began treatment for alcoholism.
"Wherever any [spouse] ... has been required to make ... periodic payments of alimony and the circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed ..., either party may apply to the court ... for an order and judgment decreasing or increasing the amount of such alimony payments ... and the court ... shall make such order and judgment as justice and equity shall require ..." S.C.Code Ann. § 20-3-170 (1976 & Supp.). The family court based its second increase in alimony on the following changes: (1) Mrs. Baker's new debts, (2) inflation, and (3) Mr. Baker's increased income.
Unwarranted debts, without more, are insufficient to establish changed circumstances or justify an increase in alimony. The fact Mrs. Baker has gone further into debt merits only minimal consideration in light of the (1) court's observation some of her "obligations are a result of financial irresponsibility and foolish borrowing," (2) evidence she owes $1500 to clothing stores, and (3) lack of evidence her normal living expenses have increased. See Von Herberg v. Von Herberg, 6 Wash.2d 100, 106 P.2d 737, 742 (1940); Disney v. Disney, 121 Cal.App.2d 602, 263 P.2d 865, 873 (1953).
Moreover, inflation, without more, is insufficient to establish changed circumstances or justify an increase in alimony. Inflation affects both spouses; when Mrs. Baker's cost of living increases, Mr. Baker's cost of living also increases. See Goldberg v. Goldberg, 30 Ill.App.3d 769, 332 N.E.2d 710, 713 (1975); Bellow v. Bellow, 94 Ill.App.3d 361, 50 Ill.Dec. 656, 419 N.E.2d 924, 929-930 (1981).
Finally, while increased income may establish a change in the financial ability of the spouse making support payments, equity does not necessarily require a corresponding increase in alimony. Where an award of alimony is adequate to maintain a spouse at the standard of living to which he or she was accustomed before divorce, a family court is not required to increase alimony on the basis of increased income alone. See Burr v. Burr, 313 Mich. 330, 21 N.W.2d 150, 151 (1946) (); Kaiser v. Kaiser, 290 Minn. 173, 186 N.W.2d 678, 684-686 (1971). See also Clark, Domestic Relations, § 14.9, at 461 ().
The family court ordered Mr. Baker to pay Mrs. Baker's attorney's fees of $2900 and costs of $102 because Mrs. Baker "is in serious financial condition" and Mr. Baker has "superior financial ability." Although an award of attorney's fees is discretionary with the family court, on appeal it can be set aside if abuse of discretion is shown. Smith v. Smith, 253 S.C. 350, 170 S.E.2d 650, 653 (1969). At the outset we question the fairness of such a high bill in a case where the only issue was changed circumstances over a two-year period. See Robinson v. Robinson, 277 S.C. 102, 282 S.E.2d 861, 861 (1981). Financial ability is not one of the main factors to be considered in awarding attorney's fees. See Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504, 510 (1977). Nevertheless, even assuming the bill is fair, we hold Mrs. Baker responsible for half of it. See Calcutt v. Calcutt, 282 S.C. 565, 320 S.E.2d 55 (Ct.App.1984).
REVERSED.
The majority opinion reverses a lower court order which required Mr. Baker to increase his alimony payments to his former wife in an amount equal to 5.9 percent 1 of the increase in his income since alimony was last set.
After a thirty-one year marriage, during which Mr. Baker was educated at college as a textile engineer and several children were born and reared, the Bakers were divorced in 1977; it appears from the record that the amount of alimony set in the 1977 order was the result of an agreement between the Bakers. Mrs. Baker subsequently obtained an increase of alimony on February 14, 1979. The appealed order of August 24, 1982, increased the monthly alimony payments required of Mr. Baker by $325.
The period involved in this appeal is from February 14, 1979, to August 24, 1982. The rate of inflation during this period was perhaps the highest in the history of our country. In 1979 the rate of inflation was 13.3 percent; in 1980, 12.4 percent; in 1981, 8.9 percent; and in 1982, 3.9 percent. 2 The purchasing power of the dollar decreased during this period more than 36 percent.
Since 1979, Mr. Baker's salary has increased from $91,469 to $112,125 and his rental income has increased from $1,420 to $8,346, a total increased earnings of $27,582. By contrast Mrs. Baker's income has remained fixed. She earns a minimum wage when working.
Admittedly, Mrs. Baker began to suffer from the disease of alcoholism during the late years of this marriage. She was arrested once because of being intoxicated. She was, however, voluntarily hospitalized at Brookwood Baptist Hospital, an alcoholic treatment center, on April 12, 1982, and at the time of the hearing had not drunk alcohol since her hospitalization. Alcoholism is a chronic disease; a chronic disease is a lifetime disease; only in the last few years has the medical profession been able to deal successfully with alcoholism but the treatment now is successful in most cases. Mrs. Baker attends four meetings of Alcoholics Anonymous each week. Although her disease is chronic, the record reflects that she has sought medical help and is doing all within her power to be a recovering alcoholic; she continues to take advantage of the Brookwood Baptist Hospital. The writer commends Baptists for this outreach...
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