Fender v. Fender, 19257

• Decision Date: 27 July 1971
• Docket Number: No. 19257,19257
• Citation: 256 S.C. 399,182 S.E.2d 755
• Court: South Carolina Supreme Court
• Parties: W. E. FENDER, Jr., Appellant, v. Jennie Ray B. FENDER, Respondent.

Page 755

182 S.E.2d 755

256 S.C. 399

W. E. FENDER, Jr., Appellant, v. Jennie Ray B. FENDER, Respondent.

No. 19257.

Supreme Court of South Carolina.

July 27, 1971.

William J. Nicholson, Frank L. Taylor, Columbia, I. A. Smoak, Jr., Walterboro, for appellant.

W. Brantley Harvey, Jr., of Harvey, Harvey & Battey, Beaufort, for respondent.

LEWIS, Justice.

The parties to this action were divorced on November 20, 1959, by a decree of the Civil and Criminal Court for Colleton County upon the ground of desertion by the husband. The divorce decree approved an agreement between the parties as to child custody, alimony, and child support, under which the wife was awarded custody of the child of the marriage, a son, then five (5) years of age; monthly alimony in the amount of $125.00; and $75.00 per month for support of the child, in addition to the cost of his schooling, clothes, and medical care.

The present proceeding was instituted by the wife in July 1968 requesting an increase in the amount of alimony and child support payments upon the ground that a change in conditions warranted such relief. After an evidentiary hearing, the judge of the Civil and Criminal Court for Colleton County issued a supplemental order on February 21, 1969 modifying the alimony and child support provisions of the 1959 divorce decree by (1) increasing the amount of monthly alimony payments to the wife from $125.00 to $200.00; (2) increasing the monthly payments to the wife for child support from $75.00 to $200.00, with $25.00 of such amount to be deposited in a bank account to be used for current costs of clothing and other incidental expenses of the child; (3) requiring the husband to pay costs of any hospitalization and any 'long-term' or 'unusual' medical expenses for the child; (4) requiring the husband to deposit in a savings institution, jointly in his name and that of the child, the sum of $100.00 each month for the child's 'future need and benefit,' with the provision that no funds could be withdrawn from the savings account except upon prior order of the court; and (5) requiring the husband to purchase and keep in force a life insurance policy upon his life in the amount of $15,000.00, with the child as beneficiary, for the purpose of assuring that funds will be available for the future higher education of the child.

The husband has appealed from the supplemental order, under exceptions which, in general, challenge (1) the legal and factual basis for the increases in alimony and child support, and (2) the power of the lower court to order him to provide the savings account and the insurance policy for the child's benefit, in the manner and for the purposes stated.

The lower court modified the previous divorce decree by increasing the amount of the payments for alimony from $125.00 per month to $200.00. The husband has excepted to this portion of the order upon the grounds that, (1) since the previous award of $125.00 per month for alimony was based upon an agreement between the parties, the court was without power to modify its terms; and (2) if such power existed, the amount of the increase was excessive.

The power of the court to modify a decree for alimony, based upon an agreement of the parties, was sustained in Jeter v. Jeter, 193 S.Ct. 278, 8 S.E.2d 490. While the court in Kendall v. Kendall, 213 S.C. 471, 50 S.E.2d 191, refused, under the particular facts, to modify the award for alimony in that case, the decision in no way impinged upon the rule firmly adopted in Jeter.

The husband has petitioned the court to overrule the above holding in Jeter. The rule there adopted is sound and we adhere to it.

The further contention that the increase in the amount of the alimony payments is excessive is also without merit. Section 20--116 of the 1962 Code of Laws sets forth the power of the court to review an award for alimony as follows:

'Whenever any husband, pursuant to a judgment of divorce from the bonds of matrimony, has been required to make his wife any periodic payments of alimony and the circumstances of the parties or the financial ability of the husband shall have been changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments and the court, after giving both parties an opportunity to be heard and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of alimony provided for in such original judgment or terminating such payments.'

The parties were married on June 8, 1952 and lived together until February 14, 1958. During a portion of that time, the husband was serving his internship as a medical doctor and the wife was employed. The original award for alimony was made in 1959. The agreed Statement shows 'that the income before taxes of the appellant (husband), a medical doctor, had increased from approximately $15,000.00 in 1960 to approximately $32,000.00 in 1966 and $50,000.00 in 1967.' Unchallenged is the following finding in the order of the lower court: 'the plaintiff (husband), * * *, had a gross income for the year 1967 of more than three (3) times the amount earned in 1959. The testimony, likewise, shows that in 1959 Dr. W. E. Fender (husband) was a young physician seeking to establish himself in the community, living in a rental house and with relatively few assets whereas today he is a well established physician in the community owning his own residence, office building, property at Sea Pines Plantation on Hilton Head Island, South Carolina, stocks, bonds and bank accounts.' The husband is now remarried and has a child of the second marriage.

The record shows that the wife is employed and has an income of approximately $75.00 per week, or $300.00 per month. The husband is required, under the order of the lower court, to contribute to the wife the sum of $200.00 per month alimony and $200.00 per month for child support. This would make a total received by the wife of approximately $700.00 per month, or a yearly total of $8400.00, for the support of herself and the child. Out of the above amount received by the wife, she is required to provide transportation costs to and from her work, housing, all living costs for herself and the child, and the expenses incident to the child's attendance at high school.

The record amply sustains the findings of the lower court as to the increased need of the wife for additional funds for support, the increased financial ability of the husband, and the reasonableness of the increase allowed.

The husband next challenges the increase in child support payments as excessive.

We call attention to the difference in the figure for child support as contained in the Statement and that in the printed Supplemental Decree of the lower court. From the agreed Statement in the Transcript, it appears that the amount for child support was increased to $175.00 per month, with the husband required to deposit in the bank an additional amount...