Butler v. Butler

• Decision Date: 19 August 2009
• Docket Number: No. 4577.,4577.
• Citation: 385 S.C. 328,684 S.E.2d 191
• Parties: William M. BUTLER, Appellant, v. Lynn M. BUTLER, Respondent.
• Court: South Carolina Court of Appeals

684 S.E.2d 191

385 S.C. 328

William M. BUTLER, Appellant, v. Lynn M. BUTLER, Respondent.

No. 4577.

Court of Appeals of South Carolina.

Heard March 18, 2009.

Decided August 19, 2009.

John O. McDougall, Peter G. Currence, and Robert L. Widener, all of Columbia, for Appellant.

Regina H. Lewis and Victoria L. Eslinger, both of Columbia, for Respondent.

LOCKEMY, J.

In this domestic action, William M. Butler (Husband) appeals from an order of the family court reducing Lynn M. Butler's (Wife) monthly alimony. We affirm in part and remand in part.

FACTS/PROCEDURAL BACKGROUND

Husband and Wife were married on September 26, 1970, and had two children. After one year's continuous separation in 1996, the family court approved an agreement entered into by Husband and Wife. Under the terms of their agreement, Husband agreed to pay Wife $7,500 per month in "permanent modifiable periodic alimony." A provision in their agreement stated: "Both parties acknowledge that under the law spousal support rights and responsibilities are subject to modification/termination based upon the laws of the State of South Carolina, including termination upon death of either party and remarriage of Wife." To secure his obligation to pay Wife alimony, the agreement required Husband to secure "no less than $650,000 of life insurance on Husband's life."

On June 17, 2002, Husband petitioned the family court to terminate or reduce his permanent, periodic alimony obligation and his life insurance obligation based on a substantial change in circumstances. Additionally, Husband requested reasonable attorney's fees and costs. In his complaint, Husband maintained Wife had inherited or was going to inherit substantial amounts of monies and other assets as a result of her mother's death. Subsequently, Husband amended his complaint on January 25, 2005, and made many of the same allegations. Additionally, Husband argued Wife had received or would receive substantial amounts of monies or assets as a result of her Father's death. He also requested the family court retroactively terminate his alimony obligation to June 17, 2002, the date of Husband's original complaint.

The parties proceeded to trial and presented testimony regarding their current financial situations. It became clear that Wife had inherited an interest in her mother's estate after her mother's death on April 5, 2002. Wife testified that her Brother was the executor of the estate. The record and testimony contain allegations that Brother was, and possibly still is, mishandling the estate and possibly acting fraudulently as executor. However, Brother denies the allegations. Husband and Wife presented testimony regarding Wife's interest in her mother's estate and their current financial situations.

After finding Wife's net worth had changed based on the increased value in the assets she received as her share of the marital estate and the assets she inherited from her Father, rather than her Mother, the family court reduced Husband's alimony payment by $2,500. Specifically, the family court based its decision on Wife's "inherited assets, the $1,500 per month she receives there[]from, and appreciation of her equitable distribution assets...." The family court found it was without jurisdiction to modify the divorce agreement requiring Husband maintain $650,000 in life insurance with Wife as beneficiary because their initial divorce agreement was "non-modifiable." Additionally, the family court awarded Husband $40,000 for his attorney's fees and costs. The family court stated the award was based primarily on attorney's fees and costs Husband incurred regarding discovery issues. Finally, the family court found alimony should be retroactive to the date of the filing of the amended complaint, January 25, 2005. Thus, the family court required Wife repay Husband approximately $22,500 by June 30, 2006, based on his "overpayment." However, in the same order, the family court ordered "Wife reimburse Husband $22,500 for the alimony he has paid her for the months June 1, 2005 through February 1, 2006, and that the $22,500 be paid on or before June 30, 2006."

After the family court issued its August 17, 2006 order reducing alimony, Husband filed a motion for reconsideration pursuant to Rules 52 and 59, SCRCP, and Rule 2(a), SCRFC. In his motion, Husband alleged the family court: 1) erred in refusing to terminate or alternatively reduce alimony; 2) erred in refusing to make the reduction in alimony retroactive to the date of the initial filing of the action to modify alimony; 3) erred in failing to award the Husband more fees and costs; and 4) erred in refusing to eliminate or further reduce the requirement of life insurance for alimony payments. Additionally, Husband requested the family court detail its consideration of the Wife's usufruct interest. The family court denied Husband's motion to reconsider. This appeal followed.

STANDARD OF REVIEW

When reviewing decisions from the family court, this court has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Semken v. Semken, 379 S.C. 71, 75, 664 S.E.2d 493, 496 (Ct.App. 2008). Although this court may find facts in accordance with our own view of the preponderance of the evidence, we are not required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008). However, "[q]uestions concerning alimony rest with the sound discretion of the [family] court, whose conclusions will not be disturbed absent a showing of abuse of discretion." Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct.App. 1996).

ARGUMENTS/ANALYSIS

I. Failure to Terminate or Further Reduce Alimony

Husband argues the family court erred in failing to terminate alimony. Alternatively, Husband contends the family court erred in failing to further reduce alimony. In support of his assertion, Husband notes six "fundamental errors" of the family court and discusses each error in turn. Husband contends these errors viewed alone or cumulatively warrant termination of alimony or reversal and remand for a further reduction of alimony. We disagree.

A. Wife's Usufruct Inheritance

Husband and Wife agree Wife inherited an undivided, one-third interest in her mother's estate. Specifically, Wife inherited a "usufruct" interest in her mother's estate, which is a term of art under Louisiana law describing a type of interest in property. The interest is similar to the common law "life estate." Based on this inheritance, Husband contends Wife could use the income from her usufruct interest to become self-supporting; thus, the family court erred in failing to terminate his alimony payments or alternatively further reduce the payments.

Permanent, periodic alimony is a substitute for support which is normally incidental to the marital relationship. Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct.App.1988). Generally, the purpose of alimony is to place the supported spouse, to the extent possible, in the position she enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App.2001). However, upon a change in circumstances, the family court may modify an alimony obligation. See Miles v. Miles, 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct.App. 2003). Changes in circumstances must be substantial or material to justify modification or termination of an alimony award. Id. at 519, 586 S.E.2d at 140. Moreover, the change in circumstances must be unanticipated. Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct.App.2004). "The party seeking modification has the burden to show by a preponderance of the evidence that the unforeseen change has occurred." Kelley v. Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729 (Ct.App.1996).

In his motion for reconsideration, Husband asked the family court to detail its consideration of Wife's usufruct interest. In response, the family court acknowledged Wife's entitlement to a usufruct interest in her Mother's estate and asserted it "expressly considered the usufruct interest in assessing the value of [Wife's] assets." Further, the family court stated it considered that Wife "is not entitled to the principal and interest on the usufruct, but could only be granted either the principal or the interest in the sole discretion of the Personal Representative." Moreover, the family court reiterated a statement from its first order in the present action by stating: "[i]t is also uncontroverted that [Wife] has yet to receive any of that money."

After reviewing the record, it remains unclear whether Mother's estate is producing income. If earnings are coming in, it is speculative as to what the actual earnings are. Husband's expert, Max Nathan, testified Wife was entitled to income on an ongoing basis. Though Nathan attempted to value Wife's interest in the estate, he did not testify as to the value of the estate's earnings. Without stating any numbers, Nathan mentioned estate property in his testimony and stated: "It's rented and it's got a lease ... It's been collecting rents, and she should be getting those rents." Accordingly, it would be mere speculation for any party to assign value to the estate's earning potential at this point.

In considering this appeal, we note with interest that Wife has not yet received any money from the usufruct inheritance. Wife testified she had made efforts to obtain the earnings she is entitled to from her Mother's estate. Specifically, Wife testified: "I have asked my [B]rother repeatedly [about the earnings]. He has been very evasive about it ... He has not been forthcoming, and I have — I tried everything." Additionally, Wife testified her Brother told her "there was nothing there." Patrice Viton, one of Husband's experts, also...