Dearybury v. Dearybury

• Decision Date: 26 August 2002
• Docket Number: No. 25520.,25520.
• Citation: 569 S.E.2d 367,351 S.C. 278
• Parties: Dan Anthony DEARYBURY, Petitioner, v. Wanda Kim Greene DEARYBURY, Respondent.
• Court: South Carolina Supreme Court

351 S.C. 278

569 S.E.2d 367

Dan Anthony DEARYBURY, Petitioner, v.Wanda Kim Greene DEARYBURY, Respondent.

No. 25520.

Supreme Court of South Carolina.

Heard June 25, 2002.

Decided August 26, 2002.

Gloria Y. Leevy, of Columbia, for Petitioner.

Michael L. Rudasill and Richard H. Rhodes, both of Burts, Turner, Rhodes & Thompson, of Spartanburg, for Respondent.

TOAL Chief Justice:

We granted certiorari to review the decision of the Court of Appeals in Dearybury v. Dearybury, Op.No.2000-UP-516(S.C. Ct.App. filed July 6, 2000) to increase the amount of lump sum alimony awarded to respondent(Wife) from $125,000 to $150,000.We reverse.

FACTUAL/PROCEDURAL BACKGROUND

The family court ordered petitioner(Husband) to pay Wife $125,000 in lump sum alimony.The section of the order awarding alimony states that "[i]n addition to other findings [in the] order," the award of alimony was based on the following findings: (1) Wife's monthly expenses for herself and the parties' children, including private school tuition for the children, were more than Husband's and, considering the property distribution aspects of the order and Husband's nonmarital assets, Husband's future monthly expenses should be even less; (2) Husband was being awarded $214,985.19 in nonmarital assets and $310,930.39 in marital assets of which $85,087.34 was either in cash or could be converted to cash; and (3) the unknown nature of Husband's future income and the possibility that he may not be able to make regular alimony payments due to the fact that he was self-employed in a start-up company.The family court also found that alimony awarded to Wife should not be taxable to her or tax deductible for Husband.

Earlier in the order, in a section entitled "Background and Findings Relevant to Most Issues," the family court found the following: (1) Husband was 37 years old and Wife was 36 years old at the time of the hearing; (2) while the mental health of both parties was "less than excellent," incident to the break-up of the marriage, both parties were in good physical health; (3) Husband has an undergraduate degree and was employed in the family's oil business until he was terminated as a result of poor performance; (4) Husband's total direct contributions to the marriage were approximately $627,763.40; (5) although at the time of the hearing Husband reported $1,000 per month gross income, he was capable of earning $38,454 per year based on his history of earnings; (6) Husband has the ability to earn an additional $1,130 per month from the sale of his interest in the family business and reinvestment of the value of his interest; (7) Husband does not need additional education to achieve his income potential; (8) Wife has a two year degree from a junior college and credits toward a marketing degree from the University of South Carolina; (9) early in the marriage wife worked at an accounting firm and for Congresswoman Liz Patterson, and at the time of the hearing was earning $260 per week working on a part-time basis at the children's school; (10) Wife is capable of earning at least $6.00 per hour and can work forty hours per week; (11) Wife's income potential should increase upon completing one full academic year of college credit and receiving her graduate degree; (12) Wife brought $1,400 and a vehicle into the marriage and contributed $18,241.89 in wages to the marriage; (13) Wife was the primary caretaker of the parties' children and was responsible for household chores, but Husband cooked some meals and indirectly contributed to the household; (14) both parties committed marital misconduct and separated several times during the course of the marriage; and (15)the parties enjoyed a comfortable standard of living due in large part to contributions from Husband and his parents.

Wife argued on appeal that lump sum alimony of $125,000 was insufficient given the wide discrepancy in earning potential and resources between the two parties.The Court of Appeals held the following regarding this issue:

As to the wife's appeal of this issue . . . we hold that a full review of the record and close consideration of all the relevant facts and circumstances warrants a finding that she should receive $150,000.00 in lump sum alimony.In so holding, we elect to exercise our jurisdiction to find the facts according to our own view of the evidence.Of particular concern to us here is the family court's apparent misapprehension that the husband is considerably older than the wife and has less time left to engage in remunerative employment.The evidence is clear that there is, in fact, only a few months difference between the parties' ages.

Husband argues the increase in alimony was error.We agree.

LAW/ANALYSIS

The decision to grant or deny alimony rests within the discretion of the family court judge.Clardy v. Clardy,266 S.C. 270, 222 S.E.2d 771(1976).The judge's discretion, when exercised in light of the facts of each particular case, will not be disturbed on appeal absent abuse thereof.Long v. Long,247 S.C. 250, 146 S.E.2d 873(1966).An abuse of discretion occurs when the judge is controlled by some error of law or where the order, based upon findings of fact, is without evidentiary support.Stewart v. Floyd,274 S.C. 437, 265 S.E.2d 254(1980).

In making an award of alimony, the following factors must be considered and weighed: (1) the duration of the marriage and ages of the parties at the time of marriage and at the time...