Campbell v. McPherson

Citation234 S.E.2d 774,268 S.C. 444
Decision Date02 May 1977
Docket NumberNo. 20412,20412
PartiesMary Schuyler CAMPBELL, Appellant, v. George Bruce McPHERSON, Jr., Respondent.
CourtUnited States State Supreme Court of South Carolina

George N. Funderburk, Greenville, and Frank K. Sloan, Columbia, for appellant.

J. D. Todd, Jr., Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

RHODES, Justice:

This is an appeal from a denial by the Family Court judge of a requested increase in support for the parties' minor daughter. The relief sought is premised on alleged changed conditions since a prior decree in 1970.

The parties to this action were divorced a vinculo matrimonii by a decree of the Family Court of Greenville County, dated November 9, 1970. The decree directed the respondent to pay the appellant the sum of $1,500 per year (in installments of $125.00 monthly) for the support of the minor daughter; to maintain certain life insurance for the benefit of the child; and to maintain in full force and effect insurance providing medical, dental, and other benefits for the daughter.

A hearing in the present proceeding was held on April 21, 1976. Thereafter the court issued its order denying the relief sought by the appellant, in essence affirming the provisions of the final divorce decree of November 9, 1970.

The general rule in cases of this nature is that the amount to be allowed for child support is, under all of the facts and circumstances of the particular case, within the sound discretion of the trial judge, and his decision will not be disturbed on appeal absent a showing of abuse of discretion. Fender v. Fender, 256 S.C. 399, 182 S.E.2d 755 (1971). Furthermore, as this Court has stated previously, the trial court has authority to increase, decrease, or terminate, upon proper showing of a change of conditions, the support payments provided for in a judgment of divorce. S.C.Code Ann. § 20-115 (1962); Smith v. Smith, 262 S.C. 291, 204 S.E.2d 53 (1974); Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704 (1970).

The evidence in the case before us reveals that at the time of the final decree of divorce in 1970, the respondent's net income was $6,997.00 annually. In 1975, however, his net income had risen to $15,587.43 annually. The appellant testified that it cost nearly $14,000.00 in 1975 to support the daughter, and maintains that this figure is a sharp increase over the total cost of support in 1970. The cost of living in general since 1970 has increased substantially. The minor daughter, as a teenager, now has additional needs. The record sustains the appellant's contention that the increased cost of living, as well as the increased cost of maintaining the child, now of high school age, requires a greater contribution from the respondent, whose earning capacity has risen significantly since 1970. The 1970 determination of child support payments is inadequate to meet the reasonable present needs of the minor daughter. In light of the evidence recounted above, we are of the opinion that the Family Court judge abused his discretion in refusing an increase in support payments.

The $14,000.00 cost of support also included the amount of $2,000.00 for psychiatric services rendered to the child in 1975. The trial judge failed to make any specific findings or to rule with respect to the necessity of the psychiatric care. The record is inadequate for the exercise of our equity jurisdiction to find the facts according to our view of the evidence. The case must, therefore, be remanded for further evidence so that the Family Court judge may determine whether reimbursement by the respondent for the sums incurred for the psychiatric treatment is justified. See Grout v. Alexander, 260 S.C. 655, 197 S.E.2d 826 (1973).

With respect to alleged error on the part of the court in refusing to grant attorney's fees to the appellant, we reiterate the rule in cases of this nature that an award of such fees is discretionary. Nienow v. Nienow, S.C., 232 S.E.2d 504 (filed Feb. 9, 1977); Smith v. Smith, 264 S.C. 624, 216 S.E.2d 541 (1975). We conclude, however, that the court abused its discretion in refusing to award reasonable attorney's fees particularly in light of the fact that the evidence demonstrates a change of conditions entitling the appellant to relief.

On remand, the court is instructed to (1) modify the 1970 divorce decree by determining a reasonable increase in child support payments in light of the evidence presented; (2) make a finding of facts with respect to whether the costs incurred for psychiatric care were justified; and (3) determine reasonable attorney's fees to be awarded to counsel for the appellant.

REVERSED and REMANDED.

LEWIS, C. J., and LITTLEJOHN and GREGORY, JJ., concur.

NESS, J., dissents.

NESS, Justice (dissenting):

The majority opinion completely disregards the evidence, undisputed in the record, that the wife's dividend income exceeds $15,000.00 and that she has recently purchased a shopping center for over $106,000.00, as opposed to a gross income of the husband of $22,000.00, with a net income, after taxes, of approximately $15,600.00.

The amount to be awarded for child support is within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. Smith v. Smith, 264 S.C. 624, 216 S.E.2d 541 (1975). Facts to be considered include the needs of the child, financial ability of the husband to pay, the wife's health, age and general condition, and the wife's income and earning capacity. Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704 (1970); 27B C.J.S. Divorce § 322, page 696; 24 Am.Jur.2d, Divorce and Separation, § 848, page 962.

The increase in the cost of supporting a child may under certain circumstances justify an increase in child support where the change is substantial and the father has the ability...

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8 cases
  • Nelson v. Merritt
    • United States
    • South Carolina Court of Appeals
    • December 14, 1983
    ...v. Higgins, 271 S.C. 530, 248 S.E.2d 488 (1978); cf. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981); Campbell v. McPherson, 268 S.C. 444, 234 S.E.2d 774 (1977); Fender v. Fender, 256 S.C. 399, 182 S.E.2d 755 The trial judge found that Nelson's remarriage and move to Richmond co......
  • Smith v. Smith, 21347
    • United States
    • South Carolina Supreme Court
    • December 8, 1980
    ...the child's needs or the supporting parents financial ability. Cason v. Cason, 271 S.C. 393, 247 S.E.2d 673 (1978); Campbell v. McPherson, 268 S.C. 444, 234 S.E.2d 774 (1977). The amount awarded is within the sound discretion of the trial judge, and his ruling will not be disturbed absent a......
  • Nicholson v. Lewis, 1166
    • United States
    • South Carolina Court of Appeals
    • April 12, 1988
    ...Mrs. Nicholson testified to an increase in expenses for Charles' food, clothes, school and social activities. See Campbell v. McPherson, 268 S.C. 444, 234 S.E.2d 774 (1977) and Fender v. Fender, 256 S.C. 399, 182 S.E.2d 755 Further, § 20-7-40 of the South Carolina Code of Laws (1981) provid......
  • Balestrine v. Jordan, 21333
    • United States
    • South Carolina Supreme Court
    • November 20, 1980
    ...decreased or terminated due to a change in circumstances pursuant to § 20-3-160, Code of Laws of S. C. (1976). Campbell v. McPherson, 268 S.C. 444, 234 S.E.2d 774 (1977). We conclude there is ample authority for the proposition that the family court has subject matter jurisdiction under URE......
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