Fiddie v. Fiddie

• Decision Date: 16 June 2009
• Docket Number: No. 4567.,4567.
• Citation: 681 S.E.2d 42
• Court: South Carolina Court of Appeals
• Parties: Walter M. FIDDIE, Appellant, v. Dianna FIDDIE, Respondent.

681 S.E.2d 42

Walter M. FIDDIE, Appellant, v. Dianna FIDDIE, Respondent.

No. 4567.

Court of Appeals of South Carolina.

Heard March 5, 2009.

Decided June 16, 2009.

Rehearing Denied August 25, 2009.

William J. Clifford, of Charleston, for Appellant.

Susan T. Kinard, of Mt. Pleasant, for Respondent.

LOCKEMY, J.:

In this domestic action, Walter Fiddie (Husband) appeals the family court's refusal to terminate alimony and its order increasing alimony to Diane Fiddie (Wife). Husband argues the family court misapplied certain equitable maxims. Additionally, Husband argues the family court erred in awarding attorney's fees and costs to Wife and failing to award attorney's fees and costs to him. Finally, Husband argues the family court erred in finding Wife a credible witness and in finding the errors he made in his financial declarations were more than "simple errors." We affirm.

FACTS/PROCEDURAL BACKGROUND

Husband and Wife were married on June 6, 1966, and had two children. After twenty-seven years of marriage, in 1994, the parties were divorced on the ground of one year's continuous separation. In its divorce order, the family court approved an agreement entered into by Husband and Wife. Under the terms of their agreement, Husband was obligated to pay Wife $250 per month in permanent alimony until her death or remarriage. A provision in their agreement provided Wife's alimony would increase to $400 when their youngest child "complet[ed] college of highest education he desire[d]." Additionally, pursuant to their agreement, Husband agreed to pay Wife "one half of any retirement, up to the date the parties are divorced, as it becomes available." In 2002, the family court increased Husband's monthly alimony to $675 after Wife petitioned the family court for an increase.

On July 19, 2005, Husband petitioned the family court to terminate his alimony obligation based on Wife's continued cohabitation with another man, Ronald Robinson. Additionally, Husband requested reasonable attorney's fees and costs. Subsequently, Husband filed an amended complaint on January 18, 2006, essentially making the same allegations. Wife answered Husband's complaint, counterclaimed for an increase in alimony, and also sought attorney's fees and costs.

At trial evidence demonstrated Wife could not afford the home she purchased and has had to live with friends and relatives. At one time she lived in a substandard house with inadequate plumbing and only a partial roof. She had financial troubles, and on occasion did not have enough money for food. Additionally, Wife's health was deteriorating, and she could not afford health insurance or prescription medication. Because of her health problems, she appeared unable to work.

After striking up a friendship with Ronald Robinson, Wife moved in with him in his North Myrtle Beach apartment from August 2004 until October 2005 "as a roommate." While living with him, Wife helped Robinson with his business, and he provided her financial support. Both insisted they were not engaged in a "romantic relationship," though they admitted having consensual sex approximately three times. Additionally, Wife maintains she would spend time with a friend at least twice a month and with her sister once a month so that she was not staying with Robinson on a full-time basis. When the present action began, Wife was living in an apartment in Charleston, and Robinson was helping pay her rent.

The family court refused to terminate Husband's alimony obligation based on his continued cohabitation allegation. The family court found the evidence presented did not prove Wife lived with Robinson for ninety consecutive days or that Robinson and Wife were involved in a romantic relationship. After finding a substantial change in Husband and Wife's circumstances, the family court increased Husband's alimony obligation to $1,200 per month. Finally, the court directed Husband pay $10,000 of Wife's attorney's fees and costs. Husband filed a motion to alter or amend judgment which the family court denied. This appeal follows.

STANDARD OF REVIEW

On appeal from the family court, this court has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994). Although this court may find facts in accordance with our own view of the preponderance of the evidence, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008). However, "[q]uestions concerning alimony rest with the sound discretion of the [family] court, whose conclusions will not be disturbed absent a showing of abuse of discretion." Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct.App.1996).

LAW/ANALYSIS

I. Termination based on Cohabitation

Husband argues the family court erred in failing to terminate alimony based on Wife's cohabitation with another man. Specifically, Husband contends Wife's relationship triggered both the common law grounds for terminating alimony as well as the statutory grounds. We affirm the family court's determination that Wife did not meet the statutory grounds for termination of alimony under the continued cohabitation statute and its determination that Wife's living arrangement with Robinson was not tantamount to marriage.

A. Continued Cohabitation Statute

Under section 20-3-150 of the South Carolina Code (Supp.2008), a supporting spouse's permanent alimony and support obligations will terminate "upon the remarriage or continued cohabitation of the supported spouse...." Section 20-3-150 defines "continued cohabitation" to mean "the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days." Furthermore, the continued cohabitation statute provides: "The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement." Recently, our supreme court found "resides with," under the statute requires "the supported spouse live under the same roof as the person with whom they are romantically involved for at least ninety consecutive days." Strickland v. Strickland, 375 S.C. 76, 89, 650 S.E.2d 465, 472 (2007); see also Semken v. Semken, 379 S.C. 71, 74, 664 S.E.2d 493, 495 (Ct.App. 2008).

Therefore, the threshold question before us is whether Wife lived under the same roof as Robinson for at least ninety consecutive days in a romantic relationship. Here, the family court found uncontroverted evidence demonstrated Wife stayed with at least three people other than Robinson every month in question. Accordingly, the family court found Husband failed to prove Wife and Robinson resided together in a romantic relationship for ninety or more consecutive days. Under the preponderance of the evidence, the family court found evidence presented did not meet the statutory guidelines for termination of Husband's alimony.

Regarding whether Wife resided with Robinson for ninety consecutive days, we defer to the family court's judgment. Testimony in the record demonstrates Wife did not want to stay with Robinson on a full-time basis and that she hated wearing out her welcome anywhere she went. Additionally, testimony from Wife's sister and friend corroborated Wife's testimony that she stayed with them for several days each month. Accordingly, because this issue seems to be a credibility determination, we give deference to the family court which heard the testimony and made a credibility determination.¹ See Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008). We also find Wife did not stay with her sister and friend in an attempt to circumvent the continued cohabitation statute because evidence demonstrates she was unaware of the statute until the litigation began and thus the potential consequences of cohabitating with another.

B. Tantamount to Marriage

Husband maintains the family court erred in failing to terminate his alimony because Wife's relationship with Robinson was tantamount to marriage. We disagree and find the cases Husband relies on distinguishable from the present case.

Husband relies on Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct.App. 2001), where this court found ex-Wife's relationship tantamount to marriage after she lived with another man for twelve years, moved to Florida with him, purchased a home with him, and had the home titled in both their names, among other factors. Unlike Bryson, where ex-wife's relationship with another man was permanent in nature, here, Wife resided with Robinson as a temporary solution to her homelessness. From the record, it appears both understood the temporary nature of her residence with him. We also believe the present case is different from Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (1970), where the supreme court found the ex-Wife and paramour entered into a common law marriage because the couple resided together and held themselves out to be husband and wife. Here, we believe Wife and Robinson held themselves out to be friends rather than husband and wife. Accordingly, due to the temporary nature of Wife and Robinson's living arrangement as well as their holding themselves out as friends, we find the family court did not err in refusing to terminate his alimony obligation based on Husband's...