Bearden v. Bearden, 20882
| Decision Date | 12 February 1979 |
| Docket Number | No. 20882,20882 |
| Citation | 272 S.C. 378,252 S.E.2d 128 |
| Court | South Carolina Supreme Court |
| Parties | Clara T. BEARDEN, Appellant, v. Emmett K. BEARDEN, Respondent. Emmett K. BEARDEN, Appellant, v. Clara T. BEARDEN, Respondent. |
O. W. Bannister, Jr., Greenville, for Clara T. Bearden.
Julius B. Aiken, Greenville, for Emmett K. Bearden.
This consolidated appeal is from two orders of the family court in two separate actions involving the same parties.
Mrs. Bearden appeals from an order of the family court refusing to use its contempt powers to enforce the alimony provisions of the parties' property settlement agreement, and refusing to require Dr. Bearden to pay the college expenses for the parties' older son. We reverse in part and affirm in part.
Dr. Bearden appeals from an order of the family court refusing to rescind the parties' property settlement agreement on the ground of fraud. We affirm.
Dr. and Mrs. Bearden were divorced in September 1972. Incorporated within the divorce decree was a property settlement agreement entered into by and between the parties dated February 12, 1972. The following portions of the property settlement are pertinent to this appeal:
7. The husband agrees to pay to the wife the sum of $1250.00 per month as alimony, . . .
8. The husband agrees to pay to the wife for the support and maintenance of the children the sum of $250.00 per month for each child . . . until such child reaches the age of 21 . . . . If, before reaching 21, any child enters college, then during the time such child shall be in college the monthly payment for the support and maintenance of that child shall be suspended during the portion of the school year during which the husband pays the college expenses of such child.
By order of the family court dated June 23, 1975 Dr. Bearden was held in contempt of court for failing to make payments for alimony and child support, but the incarceration of Dr. Bearden was held in abeyance so long as he paid certain arrearages in alimony and child support and so long as he continued to pay child support and eight hundred ($800.00) dollars per month as alimony. No appeal was taken from this order.
Approximately two years later Mrs. Bearden petitioned the family court to amend its order of June 23, 1975 and use its contempt power to compel Dr. Bearden to pay the full one thousand two hundred fifty ($1250.00) dollars per month alimony payment as required by the property settlement agreement. In an order dated September 23, 1977 the trial judge refused to do so, stating:
The respondent's (Dr. Bearden) financial situation which constituted in part, the basis for the Court's order dated June 23, 1975, has not changed.
Dr. Bearden, a radiologist, is a partner in Greenville Radiology, a professional association of twelve radiologists.
The testimony and other evidence contained in the transcript of record indicates that in 1972 when the property settlement agreement was signed Dr. Bearden reported an income of sixty three thousand ($63,000.00) dollars. In 1975 his income dropped to fifty four thousand two hundred ninety two ($54,292.00) dollars. This depression in Dr. Bearden's income in 1975 served as the basis for the lower court's order dated June 23, 1975.
In 1976, however, Dr. Bearden's income rose to sixty eight thousand two hundred ninety two ($68,292.00) dollars. In addition to his taxable income Dr. Bearden made tax free contributions to a pension plan and a profit sharing plan in the amount of sixteen thousand six hundred four and 40/100 ($16,604.40) dollars. Thus, the record reflects the depression in Dr. Bearden's income that occurred in 1975 was remedied in 1976.
The trial judge refused to amend his order of June 23, 1975 and hold Dr. Bearden in contempt of court for the full amount of the alimony payment after finding that Dr. Bearden's income remained depressed. This finding is without evidentiary support. To the contrary, the evidence clearly demonstrates that Dr. Bearden's income has risen to a substantially higher level. As this portion of the September 23, 1977 order is without evidentiary support, it is reversed and...
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Hicks v. Hicks
...court's determination is subject to reversal where it is based on a finding that is without evidentiary support. Bearden v. Bearden, 272 S.C. 378, 252 S.E.2d 128 (1979). Since this is a proceeding in equity tried by a judge alone, we may determine the facts in keeping with our view of the p......
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Sebastian v. Sebastian
...to continue making the payments of $27.50 a week for his son's college work. Id. at 39-40. On the other hand, in Bearden v. Bearden, 272 S.C. 378, 252 S.E.2d 128 (S.C. 1979), the South Carolina Supreme Court stated that a child's obligation to apply himself to his college education is conco......
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Means v. Means, 21661
...holding is based on a finding that is without evidentiary support or when there is, as here, an abuse of discretion. Bearden v. Bearden, 272 S.C. 378, 252 S.E.2d 128 (1979). See also Brooks v. Brooks, et al., S.C., 286 S.E.2d 669 The Wife is entitled to have her rights restored. Accordingly......
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