Burgess v. Burgess

• Decision Date: 15 January 2014
• Docket Number: No. 5189.,5189.
• Citation: 407 S.C. 98,753 S.E.2d 566
• Court: South Carolina Court of Appeals
• Parties: Natalie Elizabeth Crews BURGESS, Respondent, v. William Arthur BURGESS, Appellant. Appellate Case No. 2012–213455.

407 S.C. 98

753 S.E.2d 566

Natalie Elizabeth Crews BURGESS, Respondent,

v. William Arthur BURGESS, Appellant.Appellate Case No. 2012–213455.

No. 5189.

Court of Appeals of South Carolina.

Heard Dec. 12, 2013.

Decided Jan. 15, 2014.

Oscar W. Bannister, of Bannister & Wyatt, LLC, of Greenville, for Appellant.

Joseph M. Ramseur, Jr., of Mitchell Ramseur, LLC, of Greenville, for Respondent.

LOCKEMY, J.

In this appeal from the family court, William Burgess (Husband) appeals the court's final order in his divorce from Natalie Burgess (Wife), arguing the court erred in: (1) imputing income to Husband; (2) dividing the marital estate; (3) awarding alimony to Wife; and (4) awarding attorney's fees to Wife. We affirm in part and remand to the family court.

FACTS/PROCEDURAL BACKGROUND

Husband and Wife were married in 1982. During their marriage, the parties had four children, all of whom are now emancipated. Wife received a B.A. in psychology and worked at a bank until having the parties' first child in 1986. Wife did not work again until 2008 when a downturn in the economy required that she return to the workforce. She went to work as the assistant director of advancement at St. Joseph's Catholic School and earned $28,000 per year, as well as reduced tuition for the parties' two youngest children. Wife was laid off in 2009 and enrolled at Clemson University to obtain a master's degree in student affairs. She was scheduled to earn her degree in May 2012 and had not secured a job at the time of trial.

Husband received a B.S. in business administration and worked for several commercial real estate brokerage firms before becoming a partner with NAI Earle Furman. Between 2001 and 2007, Husband earned between $91,789 and $675,374 annually. In February 2009, following the collapse of the real estate market, Husband was involuntarily bought out of his ownership in NAI Earle Furman. Subsequently, Husband founded his own commercial real estate firm, The Burgess Group. Husband's income fell from $384,237 in 2007 to approximately $32,000 in 2011.

Wife moved out of the marital residence on April 6, 2009, and filed a complaint for separate maintenance and support on April 7, 2009. According to Wife, she left Husband for multiple reasons including: (1) her belief that he was paying inappropriate attention to other women; (2) he was controlling and secretive with the family finances; and (3) he withdrew all of the money from their joint checking accounts and told her he would no longer be giving her a weekly allowance of $1,000. On March 24, 2010, Husband filed an answer and counterclaim in which he denied Wife's entitlement to alimony and attorney's fees. A trial was held before the family court on February 23 and 24, 2012.

In a March 9, 2012 final order, the family court granted the parties a divorce on the ground of one year's continuous separation. Subsequently, in a May 15, 2012 final order of equitable apportionment, alimony, and attorney's fees, the family court: (1) imputed $100,000 in annual income to Husband; (2) imputed $35,000 in annual income to Wife; (3) ordered Husband to pay Wife $2,150 per month in alimony; (4) divided the marital estate; and (5) ordered Husband to pay Wife $67,589 in attorney's fees and costs. Husband filed a motion to reconsider challenging the imputation of income and award of alimony to Wife, arguing there was no evidence he was voluntarily underemployed. He also argued the attorney's fees award was improper because it was based on Husband's imputed income. The family court denied Husband's motion to reconsider. This appeal followed.

STANDARD OF REVIEW

The standard of review in an appeal from the family court is de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). This broad standard of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012). An appellate court will affirm the decision of the family court unless the decision is controlled by an error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by the appellate court. Id.

LAW/ANALYSISI. Husband's Imputed Income

Husband argues the family court erred in imputing $100,000 in income to him without evidence he was voluntarily underemployed or that he could have earned that amount using his best efforts.

“[I]n determining child support or alimony obligations, the family court has the discretion to impute income to a party who is voluntarily unemployed or underemployed.” Lewis v. Lewis, 400 S.C. 354, 361–62, 734 S.E.2d 322, 326 (Ct.App.2012).

If the obligor spouse has the ability to earn more income than he is in fact earning, the court may impute income according to what he could earn by using his or her best efforts to gain employment equal to his capabilities, and an award of [support] based on such imputation may be a proper exercise of discretion even if it exhausts the obligor spouse's actual income.

Id. at 362, 734 S.E.2d at 326 (quoting Dixon v. Dixon, 334 S.C. 222, 240, 512 S.E.2d 539, 548 (Ct.App.1999)). “Whether termed voluntary underemployment, imputation of income, or the failure to reach earning potential, the case law is clear that when a payor spouse seeks to reduce support obligations based on his diminished income, a court should consider the payor spouse's earning capacity.” Gartside v. Gartside, 383 S.C. 35, 44, 677 S.E.2d 621, 626 (Ct.App.2009) (citing Kelley v. Kelley, 324 S.C. 481, 488, 477 S.E.2d 727, 731 (Ct.App.1996)). “The failure to reach earning capacity, by itself, does not automatically equate to voluntary underemployment such that income must be imputed.” Id. “Although some of the precedents appear inconsistent, the common thread in cases when actual income versus earning capacity is at issue is that courts must closely examine the payor spouse's good faith and reasonable explanation for the decreased income.” Id. “However, a payor spouse can be found to be voluntarily underemployed even in the absence of a bad faith motivation.” Id. at 45, 677 S.E.2d at 626 (citing Arnal v. Arnal, 371 S.C. 10, 13, 636 S.E.2d 864, 866 (2006)). The South Carolina Child Support Guidelines (the Guidelines) address the issue of determining earning capacity. The Guidelines provide, “[i]n order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.” S.C.Code Ann. Regs. 114–4720(A)(5)(B) (2012).

Based on Husband's education, training, experience, age, health, and other factors, the family court imputed a gross annual income of $100,000 to Husband. The court noted it was mindful of the deteriorated state of the commercial real estate market, but found that considering Husband's skill set and experience, he should be able to find employment either as a commercial real estate broker or as a property manager. The family court further noted Husband had a proven history of “putting together real estate deals with little or no money invested on his part,” and, based on his testimony, he was inclined to continue pursuing such deals.

While the family court considered several factors in imputing income to Husband, including his work history and occupational qualifications, the court failed to consider prevailing job opportunities and earning levels in the community. In Sanderson v. Sanderson, 391 S.C. 249, 253, 705 S.E.2d 65, 66 (Ct.App.2010), this court addressed a similar situation wherein the family court imputed an annual income of $64,000 to the husband after he lost his position earning $95,000 as a result of corporate downsizing. After noting there was no dispute that the husband lost his job through no fault of his own, this court then went on to review the evidence of record as related to the factors set forth in the [G]uidelines. Id. at 256–59, 705 S.E.2d at 68–69. The Sanderson court found the record was “bereft of any testimony establishing the job opportunities or earning levels in the community” and determined the family court abused its discretion in imputing an annual income of $64,000 to Husband. Id. at 257, 705 S.E.2d at 69. The Sanderson court remanded the issue of the amount of income to be imputed to Husband to the family court to be determined in accordance with the evidence presented at trial. Id. at 260, 705 S.E.2d at 70.

Here, as in Sanderson, the family court failed to address the necessary factors delineated by the Guidelines concerning the prevailing job opportunities and earning levels in the community. Because the family court failed to address all of the factors required by the Guidelines, and because there is nothing in the record to suggest how the family court arrived at the annual income figure of $100,000 to be imputed to Husband, we remand the issue of Husband's imputed income to the family court pursuant to Sanderson for reconsideration based upon the factors set forth in the Guidelines.

II. Alimony

Husband asserts the family court erred in awarding Wife $2,150 per month in alimony because the award was based on the court's improper finding of Husband's imputed income. Additionally, Husband contends the family court placed too much weight on Husband's ability to assemble commercial real estate ventures in the future.

Alimony functions as a substitute for the support normally incident to the marital relationship and should put the supported spouse in the same position, or as near as is practicable to the same position, enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001). After finding...