Crossland v. Crossland

• Decision Date: 02 July 2014
• Docket Number: No. 27406.,27406.
• Citation: 408 S.C. 443,759 S.E.2d 419
• Court: South Carolina Supreme Court
• Parties: Robert CROSSLAND, Respondent, v. Shirley CROSSLAND, Petitioner. Appellate Case No. 2012–212190.

408 S.C. 443

759 S.E.2d 419

Robert CROSSLAND, Respondent,

v. Shirley CROSSLAND, Petitioner.Appellate Case No. 2012–212190.

No. 27406.

Supreme Court of South Carolina.

Heard March 18, 2014.

Decided July 2, 2014.

Brian Dumas, of Columbia, for Petitioner.

Melvin D. Bannister, of Columbia, for Respondent.

Acting Justice JAMES E. MOORE.

In this appeal from a divorce action, Appellant Shirley Crossland (“Wife”) contends the court of appeals erred in reversing the family court's alimony award, in modifying the equitable division of the marital estate, and in remanding the issue of attorney's fees. We agree and reverse.

I.

Respondent Robert Crossland (“Husband”) and Wife were married in 1997 and separated for the final time on September 6, 2006. Husband filed for divorce on August 17, 2007. Both parties were previously married and had adult children from those marriages; however, no children were born of this marriage. At the time of the divorce hearing on March 1, 2010, Husband was seventy-six years old and Wife was sixty-two years old.

At the time of marriage, Husband was sixty-three years old and had been retired for twenty years. His income during his marriage consisted of social security retirement benefits, Air Force retirement benefits, and veterans disability benefits. At the time the parties married, Husband owned two mobile homes, the marital residence—a house Husband purchased in 1955,¹ AND SAVINGS IN the form of stocks, savings accounts, certificates of deposit, and mutual funds (collectively “savings accounts”). Shortly after the couple married, Husband added Wife's name to all of the savings accounts; however, after the parties separated, he transferred the money from the savings accounts to an annuity fund in his name only.² Directly prior to the transfer, the savings accounts contained approximately $180,000.

Before the marriage, Wife worked in a bookstore making minimum wage and lived with her daughter because she was unable to support herself financially. At the time the parties married, Wife was fifty years old and had just returned from an extended mission trip to Ukraine. She testified the bookstore held her position open during her mission trip, but upon her return, Husband asked her not to return to her job so they could travel together. Wife owned no assets at the time of the marriage and did not work during the marriage except for period of employment with the Census Bureau in 1998 and 1999 during which she earned approximately $26,000. During the marriage, Wife also received $5,632.84 in proceeds resulting from an automobile accident. Wife testified she deposited both her Census Bureau earnings and the auto accident proceeds into the parties' joint accounts. Additionally, Wife testified she was eligible for social security retirement benefits, but had not applied to receive them because she did not wish to do so before reaching the official retirement age.

Both Husband and Wife suffered from various health problems, Wife to a greater degree. Husband has hearing problems and underwent two knee replacements and surgeries for heart and prostate issues. Wife has suffered from degenerative neck and back pain and has undergone two separate back surgeries. Additionally, Wife has undergone shoulder surgery and has been diagnosed with fibromyalgia and arthritis. In 2001, Wife was in an automobile accident and injured her back, shoulder, and right arm. Thereafter, Wife re-injured her shoulder and arm when she fell down a flight of stairs. In August 2005, Wife was diagnosed with breast cancer, which was successfully treated and continued to be in remission at the time of the divorce hearing. Wife testified she was unable to work because of her health problems. She also testified she stood to lose her medical insurance as a result of the divorce and would need to procure new insurance at a cost of at least $330 per month.

In his divorce complaint, Husband claimed Wife left their marital home on September 6, 2006, and did not return. Husband stated Wife had previously left the home three times, but eventually returned each time. Husband estimated they lived together for only five years of their ten-year marriage due to various separations initiated by Wife. In her Answer, Wife contended she was forced from the marital home by Husband's erratic and overly controlling behavior, especially in regards to the couple's finances.³ Wife further requested equitable division of the marital property, alleging Husband had secreted assets and denied her access, and she requested separate support and maintenance, alimony based on Husband's fault, and attorney's fees and costs.

The family court granted Husband a divorce based on one year of continuous separation. The family court found it was clear the parties “entered into a traditional marriage, with the Husband to be the major, if not sole financial contributor to the financial stability of the marriage with the Wife mainly taking care of the household duties, until the point at which her health deteriorated,” and both had regularly saved through “frugal living” and contributed to the marital estate. Thus, the family court awarded Wife forty percent of the marital estate, represented by the annuity ⁴ in Husband's name and the amount of $20,442, which the court found Husband had taken from the savings accounts to purchase an automobile after he filed for divorce, in violation of the family court's preliminary order.

Further, the family court noted it was clear from Husband's testimony he never expected Wife to contribute financially to the marriage, and although Wife “may have at some point been able to contribute to her own support, it is clear that during the marriage, her health deteriorated to the point she could no longer financially contribute to [the] marriage through gainful employment.” Thus, the family court awarded Wife alimony in the amount of $958.50 per month. Finally, after considering the relevant factors, the family court awarded Wife $16,024.50 in attorney's fees.

Husband appealed, and the court of appeals reversed the family court's alimony award and remanded the issue for a recalculation of alimony, finding Wife's eligibility for social security retirement benefits should have been imputed as income. The court of appeals also modified the family court's sixty-forty division of the marital estate, finding Husband should have received seventy percent of the marital assets and that Wife was entitled only to thirty percent. Additionally, the court of appeals reversed the family court's award of attorney's fees to Wife and remanded the issue for reconsideration because the substantive results achieved by Wife's counsel were reversed on appeal. This Court granted Wife's petition for a writ of certiorari to review the court of appeals' decision.

II.

In appeals from the family court, this Court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414–415, 709 S.E.2d 666, 667 (2011). Thus, this Court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence; however, this broad scope of review does not require the Court to disregard the findings of the family court, which is in a superior position to make credibility determinations. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 651–52 (2011).

A. Alimony

Wife argues the court of appeals erred in holding that, for the purposes of awarding alimony, income should be imputed to her based on her eligibility for social security retirement benefits she has not applied to receive. We agree.

Alimony is a substitute for the support normally incidental to the marital relationship. Spence v. Spence, 260 S.C. 526, 529, 197 S.E.2d 683, 684 (1973). “Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage.” Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001).

In deciding whether to award alimony, the family court must consider and give appropriate weight to the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce ...; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse ...; (4) the employment history and earning potential of each spouse; (5) the standard of living established during the marriage; (6) the current and reasonably anticipated earnings of both spouses; (7) the current and reasonably anticipated expenses and needs of both spouses; (8) the marital and nonmarital properties of the parties ...; (9) custody of the children ...; (10) marital misconduct or fault of either or both parties ...; (11) the tax consequences to each party as a result of the particular form of support awarded; (12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and (13) such other factors the court considers relevant.

S.C.Code Ann. § 20–3–130(C) (2014). An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dickert v. Dickert, 387 S.C. 1, 8, 691 S.E.2d 448, 451 (2010). “[T]he inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts' effort to incorporate the two sound principles underlying the proper review of an equity case.” Lewis, 392 S.C. at 391, 709 S.E.2d at 655. “[T]hose two principles are the superior position of the trial judge to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.” Id.

At the hearing, Wife testified that she was sixty-two years old and, thus, eligible to receive social security retirement benefits but that she had not applied to receive those benefits because she had ...