Degenhart v. Burriss, No. 3856.

• Court: Court of Appeals of South Carolina
• Writing for the Court: HEARN, C.J.
• Citation: 602 S.E.2d 96,360 S.C. 497
• Parties: Paul V. DEGENHART, Appellant, v. Debra V. BURRISS (f/k/a Debra V. Degenhart), Respondent.
• Docket Number: No. 3856.
• Decision Date: 16 August 2004

360 S.C. 497
602 S.E.2d 96

Paul V. DEGENHART, Appellant,
v.
Debra V. BURRISS (f/k/a Debra V. Degenhart), Respondent

No. 3856.

Court of Appeals of South Carolina.

Heard June 24, 2004.

Decided August 16, 2004.

360 S.C. 499

J. Mark Taylor and M. Ronald McMahan, Jr., both of West Columbia, for Appellant

Sandra R. Parise, of Columbia, for Respondent.

HEARN, C.J.

Paul V. Degenhart appeals a family court order denying his request for termination of alimony. We affirm.

FACTS

Paul V. Degenhart and Debra V. Burriss were married in 1989. The couple separated and entered into a written separation agreement in August 1999. Following one year of separation, they were divorced. The final divorce order incorporated the written separation agreement verbatim. The section of this agreement pertaining to alimony reads as follows:

Husband agrees to pay Wife alimony in the amount of $2,500.00 per month payable on the 1st day of each month beginning with the month of September, 1999 for a period of the earlier of seven years or upon the remarriage of Wife.

Under the heading "Modification and Binding Effect of Agreement," the agreement provides:

The provisions of this AGREEMENT shall not be modified or changed except by mutual consent and agreement of the parties expressed in writing.

Prior to the couple's divorce, but after entering into the separation agreement, Wife met William R. Hall. The two began spending the night together on a regular basis in November 1999, and they continue to share an exclusive sexual relationship. Wife and Hall began cohabitating in a rental house in September 2000, around the time of Husband and Wife's divorce. One year later, Wife and Hall purchased a home. The house was jointly titled and mortgaged, and the two equally divided the down payment and the tax deduction for the mortgage interest. Additionally, they have taken

360 S.C. 500

numerous vacations together. Despite their sexual relationship and cohabitation, Wife and Hall maintain separate bank accounts and do not hold themselves out to be married

In August 2002, Husband initiated the underlying action for termination of his alimony obligation, based solely on the cohabitation of Wife and Hall. The family court denied his request, and Husband appeals.

STANDARD OF REVIEW

Questions concerning alimony rest within the sound discretion of the family court judge whose conclusion will not be disturbed absent a showing of abuse of discretion. Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct.App.2001); Bannen v.Bannen, 286 S.C. 24, 26, 331 S.E.2d 379, 380 (Ct.App.1985). "An abuse of discretion occurs when the decision is controlled by some error of law or is based on findings of fact that are without evidentiary support." Bryson, 347 S.C. at 224, 553 S.E.2d at 495; McKnight v. McKnight, 283 S.C. 540, 543, 324 S.E.2d 91, 93 (Ct.App.1984).

LAW/ANALYSIS

Based on the terms of Husband and Wife's agreement and the law of alimony modification, the family court determined it did not have the authority to modify Husband's alimony obligation. We agree.

Section 20-3-130 of the South Carolina Code (Supp.2003) outlines in great detail the nature of alimony awards under South Carolina law. Subsection (G) states in relevant part: "The parties may agree in writing if properly approved by the court to make the payment of alimony as set forth [in this statute] nonmodifiable and not subject to...