Berry v. Berry

• Decision Date: 19 October 1987
• Docket Number: No. 22827,22827
• Citation: 364 S.E.2d 463,294 S.C. 334
• Court: South Carolina Supreme Court
• Parties: William E. BERRY, Jr., Respondent, v. Patricia C. BERRY, Petitioner. . Heard

Page 463

364 S.E.2d 463

294 S.C. 334

William E. BERRY, Jr., Respondent, v.Patricia C. BERRY, Petitioner.

No. 22827.

Supreme Court of South Carolina.

Heard Oct. 19, 1987.

Decided Jan. 25, 1988.

James T. McLaren and C. Dixon Lee, III, of Draine, McLaren and Lee, Columbia, for petitioner.

Jefferson V. Smith, Jr., of Carter, Smith, Merriam, Rodgers & Traxler, Greer, for respondent.

FINNEY, Justice:

This Court granted certiorari on the following question:

Did the Court of Appeals commit error in reversing the family court for having considered the fact that petitioner was barred from alimony in making an equitable distribution of the marital property?

We affirm the decision of the Court of Appeals.

William E. Berry, Jr., respondent, and Patricia C. Berry, petitioner, were divorced after thirty years of marriage.William Berry initiated this action for divorce, alleging that his wife was guilty of adultery, and requested an equitable division of all marital property.Petitioner admitted adultery and counterclaimed for equitable division of marital property, alimony and attorney fees.The trial court granted respondent a divorce, equitably divided the marital estate, and barred petitioner from receiving alimony and attorney fees.The Court of Appeals reversed and remanded the equitable division award, holding that the trial court erred in indicating that it had increased petitioner's distributive share to compensate for the alimony which could not be awarded.¹Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398(Ct.App.1984).See also, S.C.Code Ann. § 20-3-130(1976).Essentially, the Court of Appeals' decision prohibits the family court from using equitable division of marital property to award alimony barred by adultery.

Petitioner argues that this decision would require the family court to ignore two of the relevant factors enumerated by this Court when equitably dividing marital property: (1) The present income of the parties; and (2) the effect of distribution of assets on the ability to pay alimony and support.See, Shaluly v. Shaluly, 284 S.C. 71, 325 S.E.2d 66(1985).In our opinion, the Court of Appeals' decision does not preclude a family court from considering a party's income and the effect of distribution of assets on the ability to pay alimony and support when a divorce has been granted on the grounds of adultery.However, the preclusion of an alimony award to a spouse cannot be used to increase an equitable distribution award.Berry v. Berry, supra.Where a spouse is adjudged guilty of adultery, an increase in an equitable...