Bennett v. Bennett

• Decision Date: 04 August 2010
• Docket Number: No. 4722.,4722.
• Citation: 697 S.E.2d 715,389 S.C. 274
• Parties: Jack David BENNETT, Respondent,v.Lori G. RECTOR f/k/a Lori G. Bennett, Appellant.
• Court: South Carolina Court of Appeals

389 S.C. 274

697 S.E.2d 715

Jack David BENNETT, Respondent,v.Lori G. RECTOR f/k/a Lori G. Bennett, Appellant.

No. 4722.

Court of Appeals of South Carolina.

Heard Feb. 2, 2010.

Decided Aug. 4, 2010.

Mark A. Mason, of Mount Pleasant, for Appellant.

J. Michael DeTreville and Patricia O. DeTreville, both of Charleston, for Respondent.

KONDUROS, J.

Lori G. Rector (Mother) appeals from the family court's order awarding Jack David Bennett (Father) child support. Mother contends the family court erred in (1) determining the amount of child support under the Child Support Guidelines (the Guidelines); (2) making the award retroactive; and (3) awarding Father attorney's fees. We affirm.

FACTS/PROCEDURAL HISTORY

Father and Mother married in 1989 and had a daughter (Daughter) in 1990. In 1993, the parties entered into a separation agreement under which Mother received sole custody of Daughter and Father paid $500 a month in child support. The parties divorced in 1994. In 1996, Mother married John Rector, an IBM executive. On December 12, 2005, when Daughter was fifteen years old, she had a child (Grandchild). Father filed a petition for ex parte relief against Mother on February 27, 2006, seeking an emergency order awarding him temporary custody of Daughter. He alleged Daughter, Grandchild, and Mother were living with an unrelated male who was not Mother's husband; Mother abused alcohol and drugs; and Mother had been restrained by a magistrate for her behavior towards Father, including harassing phone calls. Father also filed a motion for temporary relief, requesting custody, child support, and attorney's fees. Additionally, Father filed a complaint asking for temporary and permanent custody of Daughter. Father further requested Mother pay temporary and permanent child support and attorney's fees.

On February 28, 2006, the family court entered a temporary order granting Father custody of Daughter, pending a hearing on the motion for temporary relief.¹ On March 6, 2006, the parties entered into an agreement that Father would have temporary custody and Mother would pay child support pursuant to the Guidelines and $1,500 towards Father's temporary attorney's fees. An attached worksheet determined Mother's temporary child support obligation under the Guidelines, based upon gross monthly income of $2,298 and set the amount at $324 per month. On March 29, 2006, the family court approved and adopted the temporary agreement.

On December 6, 2006, Mother filed an answer to Father's complaint, relinquishing custody of Daughter if Daughter wished to reside with Father. She further stated she should pay child support under the Guidelines if she is not the custodial parent.

Beginning on June 5, 2007, the family court conducted a final hearing to determine child support and whether to award attorney's fees. Mother submitted a financial declaration listing her monthly income at $1,967 and monthly expenses amounting to $7,357, including $1,350 for the lease for her car. Mother testified she began working as a real estate agent in 2005. She stated she applied for a car loan on June 23, 2006, and provided her income as $141,000 a year but contended that was projected income.² Mother testified she was up-to-date on her lease payments. She also testified that in December of 2005, she purchased a house for $795,000 using $450,000 she had acquired from other property. She stated she had completed an application for a $200,000 line of equity against her home that listed her gross monthly income as $21,000. She explained she had based her income on that application on a real estate commission she was expecting to receive but it was still pending and had not yet closed. Mother also testified she and Rector are separated but they did not have a separation agreement and he does not pay her any spousal support.³ She stated that during their marriage, she and Rector had invested in real estate and bought several properties as investments and that was her retirement plan.

Mother introduced an expert qualified in domestic financial matters, Cindy MacCully, who assisted her in drafting her financial declaration for the court. MacCully testified she did not impute any income to Mother in preparing the financial declaration because Mother's properties were not idle land or vacation homes that were not rented. She further testified Mother was using gifts and loans from her mother and equity lines to pay expenses, which MacCully did not consider income. She also stated she did not include money Mother obtained from refinancing in her income.

Following the hearing, the family court issued a final order finding the majority of Mother's testimony “absolutely lacking in credibility.” The court further found Mother

voluntarily absented herself from the courtroom for approximately three-quarters ... of the hearing. This [c]ourt has not previously encountered a situation where a party voluntarily absented himself or herself from the courtroom during the proceeding, although such occurrence might be expected or encountered in default proceedings or where a party was unavailable by reason of distance or illness, etc. This case presented the first time that this [c]ourt has ever had a party who was available but who voluntarily absented herself from the courtroom during most of the proceedings. This election on the part of [Mother] denied the [c]ourt the opportunity to observe her demeanor during this trial, other than during the period in which she was testifying. During her period of testimony, however, this [c]ourt finds her demeanor indicated a lack of credibility.

The family court found based upon the lifestyle Mother enjoys, setting child support based only upon $2,000 a month would be inequitable, particularly because it would deprive Daughter from benefitting from the style of life that Mother enjoys. The court stated: “This is a situation where it is proper to impute income to [Mother] based upon her own testimony that she has the ability to earn and that she believes that she will earn between $149,000 and $252,000 per year.” The court used the lower of the two figures and imputed to Mother $12,416.66 per month in gross income for purposes of determining the amount of child support. The family court ordered Mother to pay child support of $1,138 per month, retroactive to March 6, 2006.

Additionally, the family court found Mother's failure to file responsive pleadings in a timely manner and be truthful and honest about her ability to earn income prolonged the matter. It also found the matter was difficult for Father to prosecute because whether custody was being contested was unknown and a great deal of discovery had to be conducted to determine Mother's ability to earn an income. Further, the court found the “litigation was complicated and prolonged by [Mother's] failure to accept reality and by her failure to be credible and forthcoming in her dealings when trying to resolve these issues.” The family court determined the time spent was necessary; Father's attorney charged customary fees, was regularly before the family court, and was in good standing; Mother had the ability to pay her own fees as well as part of Father's based on her lavish lifestyle and the $400,000 in equity she has in her home, whereas Father had taken out a loan and reduced his lifestyle to pay for his attorney; and Father had received beneficial results. The family court ordered Mother to pay $25,000 in attorney's fees to Father. This appeal followed.

STANDARD OF REVIEW

“On appeal from a family court order, this [c]ourt has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.” E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). “Because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion.” Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003). When the evidence is disputed, the appellate court may adhere to the family court's findings. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

LAW/ANALYSIS

I. Child Support

Mother argues the family court erred in determining the amount of child support Father would receive under the Guidelines by improperly determining her gross monthly income. Specifically, she contends the family court could not use potential income because it made no finding she was unemployed or underemployed. Further, Mother maintains the family court improperly deviated from the Guidelines. We disagree.

“A child support award rests in the discretion of the trial judge, and will not be altered on appeal absent abuse of discretion.” Floyd v. Morgan, 383 S.C. 469, 475, 681 S.E.2d 570, 573 (2009). An abuse of discretion occurs when the decision is controlled by an error of law or is based on factual findings lacking evidentiary support. Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.App.2004). Generally, the family court is required to follow the Guidelines in determining the amount of child support. Sexton v. Sexton, 321 S.C. 487, 490, 469 S.E.2d 608, 610 (Ct.App.1996). Although the Guidelines govern all actions involving child support, the family court retains discretion when making the final award. Woodall v. Woodall, 322 S.C. 7, 13, 471 S.E.2d 154, 158 (1996).

In any proceeding for the award of child support, there is a rebuttable presumption that the amount of the award which would result from the application of the [G]uidelines ... is the correct amount of child support to be awarded. A different amount may be awarded upon a showing that application of the [G]uidelines in a particular case would be unjust or inappropriate. When the court orders a child support award that varies significantly from the amount resulting from the application of the [G]uidelines, the court shall make specific, written findings of those facts upon which it bases its conclusion supporting

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