Bernson v. Bernson

• Decision Date: 30 May 2012
• Docket Number: 2012-UP-329
• Parties: Todd N. Bernson, Appellant/Respondent v. Sarah M. Bernson, Respondent/Appellant
• Court: South Carolina Court of Appeals

Todd N. Bernson, Appellant/Respondent v. Sarah M. Bernson, Respondent/Appellant

No. 2012-UP-329

Court of Appeals of South Carolina

May 30, 2012

UNPUBLISHED OPINION

Heard April 10, 2012

Appeal From Greenville County Letitia H. Verdin, Family Court Judge.

J Falkner Wilkes, for Appellant/Respondent.

David A. Wilson and Christine Marie Howard, of Greenville, for Respondent/Appellant.

PER CURIAM

This is a cross-appeal of a divorce and custody decree. Todd N Bernson (Husband) appeals the award of custody to Sarah M Bernson (Wife), the visitation awarded to him, and the allocation of several debts to him. Wife cross-appeals arguing the family court erred in refusing to award her attorney's fees and costs and in finding she agreed not to relocate with the parties' child outside the State of South Carolina without Husband's consent. We affirm.

1. Husband argued the family court erred in granting custody of the parties' child to Wife and insufficient visitation to him. During oral argument before this court, however, his attorney stated that Husband's only dissatisfaction with the custody and visitation terms was the possibility that Wife could relocate with the child outside the State of South Carolina. In any event, we hold the family court acted within its discretion in awarding custody to Wife and in setting the visitation terms. See Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996) ("As with child custody, the issue of child visitation falls within the discretion of the trial judge, and his findings will not be disturbed absent an abuse of discretion.").

The court acknowledged Wife's substance abuse problems, but also found she made commendable efforts to overcome them, as evidenced by drug tests showing she had been drug free for at least two years and her enrollment in a therapy and education program. See Bramlett v. Davis, 289 S.C 85, 87-88, 344 S.E.2d 867, 868-69 (Ct. App. 1986) (holding mother's seeking of successful treatment and counseling for her previous drug abuse problems was a change of circumstance supporting the transfer of custody from the child's paternal grandparents to her). These findings were supported by the guardian ad litem and an employee at the facility where Wife sought treatment. In addition, the record supports the family court's findings that Husband had not yet addressed issues raised in a mental health evaluation and that Wife was more likely than Husband to promote the child's relationship with the other party. See Peeples v. Peeples, 270 S.C. 116, 117, 241 S.E.2d 159, 159 (1978) (noting the appellant's emotional instability as a factor supporting the custody award to the respondent). As to Husband's complaint that the family court erroneously allowed him only "minimal visitation, " we note Husband provided no argument or supporting legal authority. Furthermore, he was granted four weeks of visitation in the summer, and the family court advised the parties they could agree on additional visitation beyond what the court specified in the divorce decree.

2. We decline to address Husband's argument that the family court should not have included as marital debts various expenses that Wife allegedly incurred as a result of her substance abuse problems and could have been set aside in a bankruptcy action. The family court did not rule on the argument that the disputed debts could have been set aside in bankruptcy, and Husband did not raise this issue in his motion to alter or amend. See Chastain v. Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) ("When an issue is raised to but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e) motion."). As to Husband's contention that it was unfair to make him responsible for these debts because they resulted from Wife's misconduct, Husband did not present evidence linking the obligations to Wife's misuse of prescription drugs. Furthermore, it was agreed during oral argument that regardless of their origin, the bills were marital debts. Given these circumstances, we find no abuse of discretion by the family court in assigning Husband responsibility for these debts. See Lewis v. Lewis, 392 S.C. 281, 284-85, 709 S.E.2d 650, 651 (2011) (stating an equitable division award should be reversed only when the appellant shows an abuse of discretion by the family court); Hardy v. Hardy, 311 S.C. 433, 437, 429 S.E.2d 811, 814 (Ct. App. 1993) ("[B]asically[, ] the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts.").

3. Husband argues he should not have been ordered to pay a credit card debt owed to Rooms-To-Go for furniture that Wife sold while the case was pending in the family court particularly in view of his allegations that Wife kept the sales proceeds and did not pay anything toward the debt. Husband asserted during the trial that Wife admitted to him she sold the furniture. Husband, however, was unable to direct this court to any such admission by...