Bodkin v. Bodkin, No. 4689.

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS, J
Citation694 S.E.2d 230,388 S.C. 203
PartiesJan Ford BODKIN, Respondent/Appellant,v.Lester Hobart BODKIN, III, Appellant/Respondent.
Decision Date27 May 2010
Docket NumberNo. 4689.

388 S.C. 203
694 S.E.2d 230

Jan Ford BODKIN, Respondent/Appellant,
v.
Lester Hobart BODKIN, III, Appellant/Respondent.

No. 4689.

Court of Appeals of South Carolina.

Heard Nov. 17, 2009.
Decided May 27, 2010.


694 S.E.2d 231

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694 S.E.2d 232

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694 S.E.2d 233

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694 S.E.2d 234
Anita Ruth Floyd, of Conway, for Appellant/Respondent.

Charles Richard Rhodes, Jr., of Surfside Beach, for Respondent/Appellant.

KONDUROS, J.

Both Lester Hobart Bodkin, III (Husband) and Jan Ford Bodkin (Wife) appeal from the grant of a divorce on the ground of one year's continuous separation. Husband argues the family court erred in (1) failing to grant him a divorce on the grounds of Wife's habitual drunkenness, (2) awarding Wife alimony, (3) apportioning the marital estate, and (4) awarding Wife attorney's fees. Wife contends the family court erred in its determination of marital property. We affirm as modified.

FACTS/PROCEDURAL HISTORY

Husband and Wife married in 1988. Wife worked in Atlanta, Georgia, but after the parties married she quit her job and moved to Surfside Beach, South Carolina, where Husband lived. Prior to the marriage, both parties owned separate residences, which they sold once they were married and purchased the marital home. Wife became a stay-at-home mother to Husband's two children from a previous marriage, Bart (Stepson) and Georgia (Stepdaughter), and eventually to their child, Whitney (Daughter), who was born in 1991. She also obtained her bachelor's and master's degrees during that time and her “licensed independent social work credentials.” Wife worked sporadically after obtaining her degrees, taking two years off to care for her parents.

The parties separated on October 8, 2005, and lived separate and apart from that time forward. Wife began working to establish her practice around that time. On January 5, 2006, Wife filed a complaint requesting an order of separate support and maintenance, custody of Daughter, child support, alimony, a substantial portion of the marital assets, and attorney's fees. Husband filed an answer and counterclaim requesting a divorce on the ground of Wife's habitual intoxication. Prior to the commencement of trial, Wife

694 S.E.2d 235
amended her complaint to request a divorce on the ground of one year's continuous separation. The parties also agreed Wife would have custody of Daughter and Husband would have visitation.

Prior to trial, Wife filed a Petition for Citation for Contempt alleging Husband used money from a money market account to purchase property in Georgetown County (Georgetown Property) while an order was in effect prohibiting the parties “from injuring, damaging, destroying, selling, alienating, exchanging, trading, encumbering, collaterizing, or otherwise liquidating or decreasing in value any personal or real property, until a final order on the merits is issued.” The family court found Husband had “dissipated an asset,” held him in contempt, and ordered him to pay $500 in court costs, $1,500 to Wife as a fine, and $585 in attorney's fees to Wife's attorney.

Following a trial, the family court found Husband's “evidence did not meet the level of proof necessary to establish habitual drunkenness” and he was not entitled to a divorce on that ground. The family court granted Wife a divorce based on one year's continuous separation. The family court determined the marital estate should be distributed fifty percent to Wife and fifty percent to Husband. It found the marital home was a marital asset and awarded it to Wife. However, it determined Husband had contributed the entire down payment of $81,707 with premarital funds and awarded him a credit in that amount. The family court awarded Wife permanent, periodic alimony of $1,500 per month. Additionally, the family court awarded Wife $15,000 in attorney's fees and costs. Wife filed a Rule 59(e), SCRCP, motion for reconsideration, and Husband filed a Rule 60, SCRCP, motion for a new trial. The family court denied both motions. 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. HUSBAND'S APPEAL
A. Habitual Drunkenness

Husband argues the family court erred in failing to grant him a divorce on the grounds of Wife's habitual drunkenness. We disagree.

A divorce may be granted on the ground of habitual drunkenness, including drunkenness caused by the use of any narcotic drug. S.C.Code Ann. § 20-3-10(4) (1985). “In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce.” Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994). In Epperly, “Wife and her witnesses testified that Husband drank heavily on a daily basis. However, Husband and his witnesses testified that he seldom drank and never to excess.” Id. The supreme court adopted the findings of the family court as it was in the best position to determine the credibility of the witnesses because the testimony on this issue was so divergent. Id., 440 S.E.2d at 885-86.

In the present case, Wife testified she was a social drinker and she and Husband drank socially together during the marriage. She acknowledged that on one occasion she had too much to drink before Stepdaughter's sorority party and embarrassed Stepdaughter with her behavior. She indicated Husband had never really suggested to her she needed treatment for a problem with alcohol, but he had complained about a lot of things, including drinking.

Wife also testified she had developed a lot of health problems since Daughter's birth, and she took several prescription medications

694 S.E.2d 236
for conditions including hypertension, depression, chronic obstruction pulmonary disease, and skin problems. She testified she had several cancers removed the year of the trial.

Stepson testified that growing up there was always drinking in the house, but that neither Husband nor Wife's behavior concerned him. He testified Husband and Wife drank about the same amount, a few beers. He testified that when he went away to college and returned to visit, Wife had a tendency to get drunk at home and also drank excessively when they were out in public. Stepson acknowledged that around the time when Husband and Wife separated, he had not spent much time at the marital home and did not know the details of their day-to-day life.

Husband testified Wife's drinking had been a problem since 1998. He stated Wife drank six to ten beers a day combined with prescription medication and acknowledged she had a drinking problem. He believed Wife's drunkenness was the primary cause for the breakdown of their marriage.

Stepdaughter testified that before she moved out of the home to attend college, she did not want to be at home because of Wife's drinking. She indicated that at times, Wife became intoxicated when they were away from home and embarrassed her. She also testified Wife often passed out at night and would be drunk when the family went out to dinner. Stepdaughter further stated that in 2002 she “made a move in her personal life to move [Wife] out of [her] life to a certain extent” but continued to see Wife at family functions until the parties separated.

The family court found neither Stepson nor Stepdaughter could provide any information to the court concerning eyewitness accounts of Wife's drinking habit within one year prior to the parties' separation. The court found “[n]either was aware of the extent of [Wife's] drinking habit at that time.” The court noted Wife admitted she consumed beer while taking prescription medications and taking multiple prescriptions at a time. Although the court had “concerns about [Wife's] combining alcohol with prescription medications,” it determined Husband's “evidence does not meet the level of proof necessary to establish habitual drunkenness.” The court found Wife was the one who moved out of the residence and filed the action. Further, the court noted Wife took Daughter, who was fourteen years old at the time, with no objection by Husband, and Husband agreed to Wife having sole custody. Also, it found Husband had shown little concern for Wife's ability to care for Daughter because he had not seen Daughter for three months until the night before the hearing.

The family court determined testimony was presented that both parties drank, at times together, and Husband admitted he drank on a daily basis. The family court further found Husband conceded that over the course of the marriage, Wife completed her bachelor's and master's degrees, received her certification or license, stayed at home with his children and Daughter, and cared for her ailing father. The court also noted Husband's contention that Wife was not entitled to alimony and was capable of earning a good salary was inconsistent with his claim that she has a drinking problem of such a serious degree that it rises to the level of habitual drunkenness and led to the breakdown of the marriage. The court found Husband presented no evidence Wife ever attended any facility or meeting in regards to her alleged drinking problem or that she had any difficulty with her current employment. The court found the testimony of Husband and his children was less credible than that of Wife on the issue.

Much like Epperly, the parties presented...

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63 practice notes
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • 19 Septiembre 2018
    ...court specifically found Husband was uncooperative during discovery, in settlement negotiations, and at trial. See Bodkin v. Bodkin , 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010) ("This court has previously held when parties fail to cooperate and their behavior prolongs proceeding......
  • Daily v. Daily, Appellate Case No. 2017-001199
    • United States
    • Court of Appeals of South Carolina
    • 10 Febrero 2021
    ...Failing to cooperate and prolonging litigation can serve as an additional ground for awarding attorney's fees. See Bodkin v. Bodkin , 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010). When determining the reasonableness of attorney's fees, the family court considers "(1) the nature, e......
  • Moore v. Moore, Appellate Case No. 2013–001359.
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Octubre 2015
    ...burden of proving the goodwill at issue is enterprise goodwill and, thus, is properly considered marital property. Cf. Bodkin v. Bodkin, 388 S.C. 203, 225, 694 S.E.2d 230, 242 (Ct.App.2010) (noting the spouse claiming property is part of the marital estate bears the burden of proof) (citati......
  • Conits v. Conits, Appellate Case No. 2014–000941.
    • United States
    • Court of Appeals of South Carolina
    • 16 Marzo 2016
    ...“[t]here is limited evidence Husband made reasonable efforts to resolve this matter without contested litigation.” See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct.App.2010) (noting a party's failure to cooperate and behavior prolonging proceedings may be considered in award......
  • Request a trial to view additional results
63 cases
  • Bojilov v. Bojilov, Appellate Case No. 2015-000991
    • United States
    • Court of Appeals of South Carolina
    • 19 Septiembre 2018
    ...court specifically found Husband was uncooperative during discovery, in settlement negotiations, and at trial. See Bodkin v. Bodkin , 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010) ("This court has previously held when parties fail to cooperate and their behavior prolongs proceeding......
  • Daily v. Daily, Appellate Case No. 2017-001199
    • United States
    • Court of Appeals of South Carolina
    • 10 Febrero 2021
    ...Failing to cooperate and prolonging litigation can serve as an additional ground for awarding attorney's fees. See Bodkin v. Bodkin , 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010). When determining the reasonableness of attorney's fees, the family court considers "(1) the nature, e......
  • Moore v. Moore, Appellate Case No. 2013–001359.
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Octubre 2015
    ...burden of proving the goodwill at issue is enterprise goodwill and, thus, is properly considered marital property. Cf. Bodkin v. Bodkin, 388 S.C. 203, 225, 694 S.E.2d 230, 242 (Ct.App.2010) (noting the spouse claiming property is part of the marital estate bears the burden of proof) (citati......
  • Conits v. Conits, Appellate Case No. 2014–000941.
    • United States
    • Court of Appeals of South Carolina
    • 16 Marzo 2016
    ...“[t]here is limited evidence Husband made reasonable efforts to resolve this matter without contested litigation.” See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct.App.2010) (noting a party's failure to cooperate and behavior prolonging proceedings may be considered in award......
  • Request a trial to view additional results

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