Calhoun v. Calhoun

• Citation: 331 S.C. 157,501 S.E.2d 735
• Decision Date: 17 February 1998
• Docket Number: No. 2793.,2793.
• Court: Court of Appeals of South Carolina
• Parties: Orville G. CALHOUN, Respondent/Appellant, v. Sally G. CALHOUN, Appellant/Respondent.

331 S.C. 157

501 S.E.2d 735

Orville G. CALHOUN, Respondent/Appellant, v. Sally G. CALHOUN, Appellant/Respondent.

No. 2793.

Court of Appeals of South Carolina.

Heard December 3, 1997.

Decided February 17, 1998.

Refiled May 26, 1998.

Sally G. Calhoun, Greenville, appellant/respondent pro se.

Stuart G. Anderson, Jr., Greenville for respondent/appellant.

ORDER

PER CURIAM:

After reviewing the Petitions for Rehearing in this case, it is ordered that the opinion heretofore filed, Opinion No. 2793, filed February 17, 1998, be withdrawn and the attached opinion be substituted. The Petitions for Rehearing are denied.

AND IT IS SO ORDERED.

/s/ Jasper M. Cureton, J. For the Court

CURETON, Judge:

In this domestic action, both the husband and the wife appeal several aspects of the family court's order. The issues on appeal relate to equitable apportionment, alimony, the statutory ground for divorce, and attorney fees and costs. We affirm as modified.

Facts

Orville and Sally Calhoun married, each for the second time, in December 1989. At the time of marriage, the husband was 62 and the wife was 44. Both parties are lawyers. The husband was a senior partner in a Greenville law firm and the wife maintained a solo practice. Although the parties shared the same educational background and profession, the difference in their incomes was significant. The husband earned an annual income of $132,477,¹ while the wife earned $38,455.

Prior to the marriage, the parties acquired substantial real and personal properties. The husband owned two homes. His Greenville home became the parties' marital residence and the other home, located in North Carolina, was used as a vacation home. The wife also owned a home and continued to use this home as an office during the marriage. Each residence contained significant household furnishings. In addition, both parties had individual retirement accounts to which they each made contributions.

Within the first year of marriage, the parties experienced serious marital difficulties. According to the wife, the ongoing litigation from the husband's first marriage, his constant use of alcohol and failure to provide financial support caused continuous quarreling between them. While on vacation in North Carolina in 1994, the wife left the husband and returned to her premarital home. Three weeks later, she returned to the marital home attempting to reunite with the husband, but he did not desire reconciliation.

In July 1994, the husband commenced suit seeking an order of separate maintenance, exclusive use of the marital home, and a mutual restraining order. The wife counterclaimed seeking, among other things, an order of reconciliation, or in the alternative, a divorce on the ground of habitual drunkenness, equitable distribution, alimony, attorney fees and costs, and the maintenance of health and dental coverages.

A temporary order issued on September 20, 1994 granted all relief sought by the husband. The court granted the wife's request for pendente lite payment by the husband of her health and dental insurance and uninsured medical expenses, but reserved for later disposition the wife's request for additional pendente lite alimony and suit money.

The family court's final order: (1) granted the husband a divorce on the ground of one year's continuous separation; (2) denied the wife's plea for alimony; (3) divided the parties' personal property by ordering the husband to pay the wife $11,586 in addition to an in kind distribution of the property; (4) awarded each party 60% of the marital portion of their own retirement plan and 40% of the other's retirement plan resulting in an order that the husband roll over $28,152.20 to the wife's retirement account; and (5) awarded the wife $10,000 in attorney fees. Both parties appeal.

Scope of Review

This court has jurisdiction, in domestic matters, to find the facts in accordance with our view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992). This scope of review, however, does not require us to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). Neither are we required to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981).

Law/Analysis

I. Alimony and Attorney Fees

A. Pendente Lite

The first issue concerns the wife's request for pendente lite alimony and attorney fees. She argues the family court erred in denying her request because she made a prima facie showing for divorce on the ground of habitual drunkenness and, in addition, showed she was without sufficient funds to defend the suit or maintain herself during the pendency of this action. The wife further argues the family court erred in refusing to hold a hearing on her subsequent plea for pendente lite alimony and suit money due to changed circumstances.

In support of her plea for pendente lite alimony and suit money, the wife submitted her affidavit which described the husband's escalating use of alcohol after the marriage. Four affidavits of family and non-family members supported the wife's claim of the husband's habitual use of alcohol and contentious nature.

At the temporary hearing, the wife also submitted a financial statement which reflected a monthly income of $1,806 as compared to the husband's financial declaration which reflected a monthly income of $8,687. According to the wife's financial declaration, her living expenses while separated from the husband resulted in a monthly deficit of $2,000. The wife also submitted attorney fee affidavits indicating she had incurred $1,188.91 in attorney fees and costs from July to August 1994, and an additional $1,628 by September 1994.

In its temporary order, the family court held in abeyance the wife's request for pendente lite alimony and suit money pending a final hearing in this matter. The court, however, granted the wife's request for payment of her medical and dental insurance and uninsured medical expenses. On the wife's motion to reconsider, the family court refused to hold a hearing on the issue finding the matter had already been decided.

South Carolina Code Ann. §§ 20-3-120 (1985) and 20-3-140 (Supp.1997) provide for the allowance of alimony and suit money pendente lite under proper circumstances in accordance with the principles controlling such allowance in actions for divorce a vinculo matrimonii.

Pursuant to these provisions, our Supreme Court has issued several opinions holding the test for the allowance of pendente lite alimony and suit money is that the party seeking relief must establish a prima facie case. Cannarella v. Cannarella, 275 S.C. 516, 273 S.E.2d 529 (1980); Poliakoff v. Poliakoff, 221 S.C. 391, 70 S.E.2d 625 (1952); Knight v. Knight, 211 S.C. 25, 43 S.E.2d 610 (1947). In view of the law and evidence presented, we find the wife made a showing sufficient to entitle her to alimony and suit money pendente lite. Cannarella, 275 S.C. 516, 273 S.E.2d 529.

We believe the family court committed error in concluding it could not revisit the issue of alimony and suit money pendente lite in connection with the wife's renewed plea based on changed circumstances. Armaly v. Armaly, 274 S.C. 560, 266 S.E.2d 68 (1980) (holding the family court has continuing authority in the area of pendente lite relief to, on petition of either party, increase or reduce the award as circumstances might require).

Although we conclude the family court erred procedurally, we find a reversal for such an error is not mandated in view of the fact that the court required the husband to pay substantial medical expenses as temporary support. Moreover, we find the wife has failed to show any prejudice resulting from the court's error as she was able to maintain herself and defend the divorce proceeding. See Armstrong v. Armstrong, 185 S.C. 518, 194 S.E. 640 (1938) (finding the principal objective of temporary alimony is to give the spouse seeking support sufficient means for her support and enable her to prosecute or defend her suit).

B. Permanent

1. Attorney Fees

The wife next raises two arguments concerning attorney fees. She argues the family court abused its discretion in: (1) denying her any attorney fees for the time she represented herself pro se, (2) awarding attorney fees in an amount less than she incurred, and (3) denying her costs and expert witness fees.

South Carolina Code Ann. § 20-3-130(H) (Supp.1997) authorizes the family court to order payment of attorney fees to either party. The award of attorney fees and costs is a matter within the sound discretion of the trial judge. The award will not be reversed on appeal absent an abuse of discretion. Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989). Our courts have outlined, on numerous occasions, the factors to be considered in an award of attorney fees. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991); Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989); McClerin v. McClerin, 310 S.C. 99, 425 S.E.2d 476 (Ct.App. 1992).

Neither the South Carolina Legislature nor the South Carolina Supreme Court has expressly authorized an attorney proceeding pro se to recover attorney fees for his or her own efforts. Federal courts are divided on the question of whether a pro se attorney litigant is entitled to an award of attorney fees.² Some state courts, however, that have considered the question have refused to grant attorney fees to pro se litigants, albeit for different reasons.³ One rationale of the cases denying attorney fees to pro se attorney litigants is that an award authorized by statute presupposes an obligation by one person to reimburse another person who has provided legal representation. S.C.Code Ann. § 20-3-130(H) states that "[t]he court may order one party to pay a reasonable amount to the other for...