DiMarco v. DiMarco, No. 5024.

CourtCourt of Appeals of South Carolina
Writing for the CourtLOCKEMY
Citation731 S.E.2d 617,399 S.C. 295
Decision Date15 August 2012
Docket NumberNo. 5024.
PartiesCheryl DiMARCO, Respondent, v. Brian A. DiMARCO, Appellant. Appellate Case No. 2008–101649

399 S.C. 295
731 S.E.2d 617

Cheryl DiMARCO, Respondent,
v.
Brian A. DiMARCO, Appellant.

Appellate Case No. 2008–101649

No. 5024.

Court of Appeals of South Carolina.

Heard Oct. 6, 2011.
Decided Aug. 15, 2012.


[731 S.E.2d 618]


J. Falkner Wilkes and Nathalie M. Morgan, both of Greenville, for Appellant.

C. Grant Varner and Kim R. Varner, of Varner & Segura, of Greenville, for Respondent.


LOCKEMY, J.

[399 S.C. 297]In this domestic action, Brian DiMarco (Father) argues the family court erred in including rental income and capital gains in its child support calculation, and in awarding excessive attorney's fees and costs to Cheryl DiMarco (Mother). We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

Father and Mother were divorced in September 1998. Following their divorce, Mother retained custody of the parties' four children and Father was ordered to pay child support. [399 S.C. 298]In January 2003, Father filed a motion seeking, among other relief, a modification of the parties' child support agreement. In March 2004, the family court approved an agreement reached by the parties. The parties agreed child support would be based on Father's gross income of $8,333 per month and Mother's gross income of $2,500 per month. Father agreed to pay $1,439 per month in child support for the parties' three minor children. 1

In August 2006, the family court held a temporary hearing after Mother filed a motion requesting discovery, an increase in child support, and attorney's fees. In a temporary order, the family court noted Father's income was highly contested and it “could not make any type of merits hearing or determinative analysis on a Motion basis.” The family court, relying on the financial affidavits and declarations of the parties, found Father's income was $4,733.40 per month and Mother's income was $2,500 per month. The family court set child support for the parties' remaining two minor children at $835 per month. The family court also held the issue of attorney's fees in abeyance pending a final hearing on the merits and ordered Father to advance Mother $7,000 for the cost of discovery.

On March 11–12, 2008, a trial was held before the family court. In an April 21, 2008 order, the family court determined an increase in Father's income, and a change from three to two minor children requiring support,

[731 S.E.2d 619]

necessitated a child support recalculation. The family court determined Father's income was $10,255 per month and Mother's income was $3,416 per month. In calculating Father's annual income, the family court included $11,263 per year in rental income and an average capital gain of $7,133 per year. The family court ordered Father to pay $1,226 per month in child support, and awarded Mother $25,000 in attorney's fees.2 Thereafter, Father filed a Rule 59(e), SCRCP, motion to alter or amend the judgment, requesting the court reconsider its finding as to [399 S.C. 299]Mother's income. In a June 23, 2008 supplemental order, the family court determined Mother's gross income was $4,293 per month. The family court recalculated Father's child support obligation and ordered he pay $1,216 per month. The family court denied Father's request to reconsider its inclusion of rental income and capital gains in its calculation of his income. This appeal followed.

STANDARD OF REVIEW

“The family court is a court of equity.” Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the appellate court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). “De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the trial court's findings.” Lewis, 392 S.C. at 390, 709 S.E.2d at 654–55. However, this broad standard of review does not require the appellate court to disregard the factual findings of the trial court or ignore the fact that the trial court is in the better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of demonstrating error in the trial court's findings of fact. Id. at 387–88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the trial court in an equity case unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually...

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23 practice notes
  • Conits v. Conits, Appellate Case No. 2014–000941.
    • United States
    • Court of Appeals of South Carolina
    • March 16, 2016
    ...court or ignore the fact that the trial court is in the better position to assess the credibility of the witnesses.” DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012) (citing Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001) ). An appellate court will ......
  • Fredrickson v. Schulze, Appellate Case No. 2014–000570.
    • United States
    • Court of Appeals of South Carolina
    • April 13, 2016
    ...or the appellant satisfies the burden of showing the preponderance of the evidence supports contrary factual findings. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012).LAW/ANALYSISI. Marital EstateHusband argues the family court erred in its identification, valuation......
  • Burgess v. Burgess, No. 5189.
    • United States
    • Court of Appeals of South Carolina
    • January 15, 2014
    ...court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012). An appellate court will affirm the decision of the family court unless the decision is controlled by......
  • Jane Doe v. S.C. Dep't of Soc. Servs., No. 27385.
    • United States
    • United States State Supreme Court of South Carolina
    • April 30, 2014
    ...of showing the preponderance of the evidence actually supports contrary factual findings by the appellate court. Id.; DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012). III. DiscussionA. Arguments Doe contends the family court erred in classifying her as a vulnerable ......
  • Request a trial to view additional results
23 cases
  • Conits v. Conits, Appellate Case No. 2014–000941.
    • United States
    • Court of Appeals of South Carolina
    • March 16, 2016
    ...court or ignore the fact that the trial court is in the better position to assess the credibility of the witnesses.” DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012) (citing Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001) ). An appellate court will ......
  • Fredrickson v. Schulze, Appellate Case No. 2014–000570.
    • United States
    • Court of Appeals of South Carolina
    • April 13, 2016
    ...or the appellant satisfies the burden of showing the preponderance of the evidence supports contrary factual findings. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012).LAW/ANALYSISI. Marital EstateHusband argues the family court erred in its identification, valuation......
  • Burgess v. Burgess, No. 5189.
    • United States
    • Court of Appeals of South Carolina
    • January 15, 2014
    ...court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012). An appellate court will affirm the decision of the family court unless the decision is controlled by......
  • Jane Doe v. S.C. Dep't of Soc. Servs., No. 27385.
    • United States
    • United States State Supreme Court of South Carolina
    • April 30, 2014
    ...of showing the preponderance of the evidence actually supports contrary factual findings by the appellate court. Id.; DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012). III. DiscussionA. Arguments Doe contends the family court erred in classifying her as a vulnerable ......
  • Request a trial to view additional results

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