Brunner v. Brunner, No. 1180

• Court: Court of Appeals of South Carolina
• Writing for the Court: GOOLSBY
• Citation: 370 S.E.2d 614,296 S.C. 60
• Parties: Ronald J. BRUNNER, Respondent, v. Mary Angela BRUNNER, Appellant. . Heard
• Docket Number: No. 1180
• Decision Date: 25 May 1988

Page 614

370 S.E.2d 614 296 S.C. 60 Ronald J. BRUNNER, Respondent,
v.
Mary Angela BRUNNER, Appellant. No. 1180. Court of Appeals of South Carolina. Heard May 25, 1988.
Decided June 27, 1988.

Page 615

[296 S.C. 61] Wheeler M. Tillman and John W. Ailstock, of Tillman & McConnell, North Charleston, for appellant.

Felix B. Clayton, North Charleston, for respondent.

GOOLSBY, Judge:

Mary Angela Brunner appeals the family court's failure to award her attorney fees for protecting in the bankruptcy court the attorney fees awarded her by the family court in its decree divorcing her from Ronald J. Brunner, its failure to award her expert witness fees, its award to her of only $750 in attorney fees in connection with Mr. Brunner's appeal of the divorce decree, its failure to award her attorney fees in the instant action, and its award of only $600 per month in alimony. She also questions the trial judge's jurisdiction to issue the order appealed from and his compliance with Rule 27(C) of the South Carolina Family Court Rules. We affirm.

The parties divorced in 1984. In its divorce decree, the family court ordered Mr. Brunner to pay $1,150 per month in unallocated support and awarded Mrs. Brunner $6,913.80 in attorney fees.

Mr. Brunner appealed the divorce decree, but his appeal was dismissed on a certificate of no return.

Mr. Brunner also filed a petition for bankruptcy, seeking to have the bankruptcy court discharge the attorney fees awarded by the family court to Mrs. Brunner. The bankruptcy[296 S.C. 62] court declared these fees nondischargeable. Mr. Brunner thereafter paid them.

This action ensued.

1. We find no error in the family court's refusal to award Mrs. Brunner attorney fees for protecting in the bankruptcy court the award of attorney fees made by the family court in its divorce decree.

The right to recover attorney fees as part of costs from one's opponent owes its origin to statute, there being no such right at common law. Collins v. Collins, 239

Page 616

S.C. 170, 122 S.E.2d 1 (1961). In South Carolina, a family court may award attorney fees in actions for divorce, separate support and maintenance, and other marital litigation between the parties [CODE OF LAWS OF SOUTH CAROLINA §§ 20-3-120 and 20-3-140 (1976) ]; however, a family court is not authorized by any statute to award attorney fees for services rendered a spouse in other litigation arising out of marital troubles. Collins v. Collins, supra.

2. We likewise find no error in the family court's refusal to award Mrs. Brunner expert witness fees, assuming such fees constitute "suit money" within the meaning of Sections 20-3-120 and 20-3-140. Cf. Stevenson v. Stevenson, 368 S.E.2d 901 (S.Ct.1988) (wherein the court upheld as reasonable an award of investigator fees).

Here, the witness for whom Mrs. Brunner seeks expert witness fees, a lawyer, offered testimony relating to the value of certain legal services rendered for Mrs. Brunner. In her brief, Mrs. Brunner relates her claim for expert witness fees to only her demand for attorney fees resulting from having to protect in the bankruptcy court the attorney fees awarded her by the family court.

The decision of whether to award expert witness fees, like the decision to award attorney fees, rests within the sound discretion of the family court. See Id., (suit money awards rest within the discretion of the family court); Reece v. Reece, 266 S.C. 316, 223 S.E.2d 182 (1976) (the allowance of attorney fees is generally within the discretion of the trial judge); Travieso v. Travieso, 474 So.2d 1184 (Fla.1985) (the trial court has discretion pursuant to statute to tax as costs expert witness fees for a lawyer who [296 S.C. 63] testifies as an expert as to reasonable attorney fees).

No abuse of...