Bogan v. Bogan, 1306
| Decision Date | 13 February 1989 |
| Docket Number | No. 1306,1306 |
| Court | South Carolina Court of Appeals |
| Parties | Karen Ann BOGAN, Respondent-Appellant, v. Richard Keith BOGAN, Appellant-Respondent. . Heard |
Steven M. Anastasion, of Callison, Tighe, Robinson & Anastasion, Columbia, for appellant-respondent.
Harvey L. Golden, Ken H. Lester, and J. Michael Taylor, Columbia, for respondent-appellant.
The wife brought this action to interpret and enforce an alimony provision of an Alabama divorce decree. The family court ordered the husband to pay additional accrued alimony of $36,840.00 for the years 1980 through 1985. Both parties appeal. We affirm.
The parties' divorce decree provides the husband will pay, in addition to $600.00 per month permanent fixed alimony, an additional amount equal to ten percent of his gross income exceeding $68,000.00 annually. This additional alimony was to be paid annually beginning in 1980 and continuing for 12 years.
The husband is a physician with a specialty in pulmonary medicine. He is an employee and minority shareholder in a professional association (P.A.) which employs three other physicians. In addition to paying the husband a salary, the P.A. makes annual contributions to qualified retirement plans on the husband's behalf. The contributions made to the husband's account during the period 1980-1986 total $82,584.36.
The husband also receives salaries and consultation fees from Baptist Medical Center, Midlands Technical College, S.C. Department of Mental Health, and the University of South Carolina. He owns rental property and other non-medical business investments. These properties and investments produced a net loss of over $190,000 during the years 1980-1985.
The primary dispute in this case revolves around an interpretation of the term "gross income" as used in the Alabama divorce decree. As might have been expected, both parties produced tax experts who interpreted the term in a manner beneficial to the interest of their respective client. Wife's expert witness, an attorney and C.P.A., included in the husband's "gross income" (1) all salaries and consulting fees paid the husband, (2) an automobile allowance paid to the husband by his P.A., and (3) all the contributions paid by husband's P.A. to his retirement plans. He did not deduct husband's losses with respect to his non-medical properties and investments. He determined husband owed the wife $36,840.00 in additional alimony.
On the other hand, the husband's expert witness, also an attorney and C.P.A., testified the term "gross income" in this context meant husband's income from all sources, less costs to produce such income less any losses from business activities. He made a distinction between "gross receipts" and "gross income" testifying gross income is generally considered to be net after expenses. He then concluded the husband owed the wife only $1,701.00 in additional alimony. In arriving at this figure, he included all income to the husband as reported on his tax returns. He deducted from this figure all expenses of earning the income and business losses incurred by husband on his non-medical properties and investments. Husband's pension and profit sharing contributions were not included in calculating his "gross income."
The trial court found "gross income" included all income received from the husband's practice of medicine including his automobile allowance and retirement contributions made by the P.A. on his behalf. It did not deduct investment losses from the husband's income. The court's computation of husband's "gross income" also did not allow for deduction of his non-reimbursed medical related business expenses. 1
Husband argues on appeal the trial judge erred by (1) including in his "gross income" contributions made by his P.A. to its qualified pension plans, (2) failing to deduct his nonreimbursed business expenses related to the practice of medicine, and (3) failing to deduct losses from business investments unrelated to the practice of medicine. The husband also argues the wife should not be awarded attorney fees because he acted in good faith by substantially complying with the alimony provisions of the divorce decree and the wife is capable of paying her own attorney fees.
The wife argues on appeal the family court erred in allowing husband to "deduct business expenses at the P.A. level." She argues that husband's "gross income" should include his percentage ownership of the gross receipts of the P.A. without deduction for operational expenses of the professional association. She also asserts the trial court erred by awarding her only a portion of the attorney fees she actually incurred.
The trial court found the disputed provision in the Alabama divorce decree unambiguous. No exception was taken to this finding. Indeed, neither party argues the provision is ambiguous. An order should be construed within the context of the proceeding in which it is rendered. Dibble v. Sumter Ice & Fuel Co., 283 S.C. 278, 322 S.E.2d 674 (Ct.App.1984). We thus begin our analysis of the disputed provision by pointing out that while the term is found in a divorce decree, the decree was entered by consent of the parties and incorporated their agreement. Thus, we are essentially dealing with an agreement between the parties. Where an agreement is clear and capable of legal construction the court's only function is to interpret its lawful meaning and the intention of the parties as found within the agreement and give effect to them. See Conner v. Alvarez, 285 S.C. 97, 328 S.E.2d 334 (1985); Trimble v. Todd, 510 So.2d 810 (Ala.1987). The language used in a decree must be given its ordinary and commonly accepted meaning. 27B C.J.S. Divorce Section 439 (1986). Where an instrument evidences care in its preparation, it will be presumed its words were employed deliberately and with intention. Hellams v. Harnist, 284 S.C. 256, 325 S.E.2d 569 (Ct.App.1985); see Terry Cove North, Inc. v. Balwin County Sewer Auth., Inc., 480 So.2d 1171 (Ala.1985).
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