Gartside v. Gartside

• Citation: 383 S.C. 35,677 S.E.2d 621
• Decision Date: 29 April 2009
• Docket Number: No. 4537.,4537.
• Parties: Michael R. GARTSIDE, Respondent/Appellant, v. Ellen T. GARTSIDE, Appellant/Respondent.
• Court: Court of Appeals of South Carolina

677 S.E.2d 621

383 S.C. 35

Michael R. GARTSIDE, Respondent/Appellant, v. Ellen T. GARTSIDE, Appellant/Respondent.

No. 4537.

Court of Appeals of South Carolina.

Heard March 17, 2009.

Decided April 29, 2009.

H. Stanley Feldman, of Charleston, for Appellant/Respondent.

Paul Daniel Schwartz, of Charleston, for Respondent/Appellant.

WILLIAMS, J.

In this family law action, we determine whether the family court erred in (1) reducing Michael Gartside's (Husband) alimony obligation and (2) failing to award attorneys' fees and costs to Husband. We affirm.

FACTS/PROCEDURAL HISTORY

Husband and Ellen Gartside (Wife) divorced in 2003. At the time of the divorce, Husband was employed by the Carolina Yacht Club (the Club) and Wife was employed as a public school teacher. The final decree stated Husband and Wife earned gross monthly wages of $9,079 and $3,814, respectively. The final decree awarded Wife periodic alimony in the amount of $1,775 per month.

At the time of the divorce, Husband had been making $108,948 per year at the Club according to his financial declaration. From December 18, 2003 until October 1, 2005, Husband made his alimony payments to Wife. However, Husband lost his job at the Club in October 2005, at which time he was making between $105,000 and $106,000, according to his testimony.¹ After being let go by the Club, Husband found a job working for the Muhler Company (Muhler) in November 2005, where he received a reported salary of $60,000 per year.

On January 17, 2006, Husband, through counsel, mailed Wife a letter advising her he would be able to continue paying the current alimony only through April 28, 2006, with his severance package from the Club, but thereafter, he would be unable to continue to pay the $1,775 per month.

On March 17, 2006, Husband filed an action in the Charleston County family court seeking a reduction in his alimony obligation, alleging a substantial and material change in circumstances. The complaint alleged that Husband had only been able to maintain his alimony payments because of his severance package, which was to expire in April 2006.

The case was tried in April 2007 before the family court. Husband and Wife submitted their financial declarations to the family court and testified as to their respective financial situations. As of February 1, 2007, Husband's gross monthly income was $5,200, while his net monthly income was $3,488. His total monthly expenses were $7,372. As of February 18, 2007, Wife's gross monthly income was $5,249, while her net monthly income was $3,787. Her total monthly expenses were $4,045.

At trial, Husband was asked about his efforts at finding employment after the Club terminated him. Husband testified that "hundred thousand dollar club jobs" existed in the tri-county area, but none were available. At one point, Husband submitted his resume to the Country Club of Charleston, but was not offered a position. Husband further testified he believed jobs within his profession existed outside of the tri-county area that would pay approximately what the Club had paid. Husband made no efforts, however, to interview outside of the tri-county area. Husband also testified that, before settling in Charleston in 1982, he had relocated to Pennsylvania, Colorado, Georgia, and Texas, all in furtherance of his career.

After considering all of the evidence, the family court reduced Husband's alimony obligation from $1,775 per month to $800 per month. The court stated:

[Husband and Wife] moved to Charleston, S.C., in 1982.... [T]hey have raised their children here, have owned property here, have had their work careers here, have put down roots, have made friends and have established themselves as citizens of Charleston County[,] and if [they] were still living together and [Husband] had lost his job, I have serious doubts they would move away just so they could continue making the same salary....

[Husband] testified that there were no comparable jobs available in the Charleston area[,] ... and I find no compelling reason that [Husband] should be forced to leave the environment he has known for 25 years to seek employment which might pay the same as he was receiving in Charleston at his previous employment.

Husband submitted an affidavit in support of his request for attorneys' fees and costs, which the family court denied. This appeal followed.

STANDARD OF REVIEW

An appellate court reviewing a family court order may find facts in accordance with its own view of the preponderance of the evidence. Robinson v. Tyson, 319 S.C. 360, 362, 461 S.E.2d 397, 398-99 (Ct.App.1995). This broad scope of review does not, however, require the reviewing court to disregard the findings of the family court, which, having seen and heard the witnesses, is in a better position to examine their credibility. Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979). Nor does this broad review relieve an appellant of his or her burden of convincing the appellate court that the family court committed error. Id. at 523, 252 S.E.2d at 892.

LAW/ANALYSIS

1. Whether the family court erred in reducing Husband's alimony obligations?

Wife argues the family court abused its discretion in reducing Husband's alimony obligation. We disagree.

The purpose of alimony is to provide the ex-spouse a substitute for the support that was incident to the former marital relationship. Croom v. Croom, 305 S.C. 158, 160, 406 S.E.2d 381, 382 (Ct.App.1991). The question of whether to increase or decrease alimony based on a finding of changed circumstances is a matter committed to the sound discretion of the family court. Brunner v. Brunner, 296 S.C. 60, 64, 370 S.E.2d 614, 617 (Ct.App.1988). The family court's determination of whether to modify support will not be disturbed on appeal unless the family court abused its discretion. Id. An abuse of discretion occurs when the family court's decision is controlled by some error of law or where the order, based upon findings of fact, is without evidentiary support. McKnight v. McKnight, 283 S.C. 540, 543, 324 S.E.2d 91, 93 (Ct.App.1984).

In order to justify a modification of an alimony award, the changes in circumstances must be substantial or material. Thornton v. Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997) (citing Calvert v. Calvert, 287 S.C. 130, 138, 336 S.E.2d 884, 888 (Ct. App.1985)). In determining whether the change in circumstances warrants a modification, several considerations relevant to the initial determination of an alimony award may be applied in the modification context as well, including the parties' standard of living during the marriage, each party's earning capacity, and the supporting spouse's ability to continue to support the payee spouse. Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct.App.2004).

We agree with the family court that Husband's change of circumstances constitutes a substantial and material change. Moreover, because we find evidentiary support for its decision, we see no abuse of discretion in the family court's lowering Husband's alimony obligations from $1,775 per month to $800 per month. First, Husband's annual income has been reduced from $108,948 at the time of the divorce to $60,000. See Miles v. Miles, 355 S.C. 511, 519, 586 S.E.2d 136, 140 (Ct. App.2003) (affirming family court's reduction in ex-husband's monthly alimony from $4,583 to $2,500 in light of the fact ex-husband's monthly income had been reduced from $18,100 to less than $14,000). Second, because Husband's income was reduced to $60,000 per year, his monthly expenses now exceed his monthly income by almost $4,000. Therefore, even if Husband were to cut out some of what Wife describes as his "discretionary" expenses, he would still remain in debt at the end of each month. Third, Wife's overall financial situation has arguably improved since the divorce. Not only have her monthly wages increased slightly since the divorce from $3,263 to $3,474, but she testified she is no longer receiving medical treatment for her emotional condition, which she was at the time of the divorce. Taken together, we find these facts support the family court's decision to lower Husband's alimony obligation.

2. Whether Husband's former income should have been imputed?

a. Preservation

Husband argues this issue is not preserved for appeal because it was not raised to the family court prior to Wife's Rule 59(e), SCRCP, motion to alter judgment. We disagree.

But for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the family court. Lucas v. Rawl Family Ltd. P'ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004). "Imposing this preservation requirement on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments." I'On, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000). As such, a party cannot use a Rule 59(e) motion to present to the family court an issue the party could have raised prior to judgment but did not. Crary v. Djebelli, 321 S.C. 38, 43, 467 S.E.2d 128, 131-32 (Ct.App.1995), rev'd on other grounds, 329 S.C. 385, 496 S.E.2d 21 (1998).

Although the first time the phrase "whether income should be imputed" appeared in the pleadings was in Wife's Rule 59(e) motion, we feel this issue is nevertheless preserved because the issue of imputed income was both raised to and ruled upon by the family court. First, counsel for Wife asserted at trial that "the number one consideration [in this case] is that [Husband] is underemployed" because "[Husband] chooses to stay with his fiancée in Charleston and not ... look anywhere else." Underemployment and imputation of income go hand in hand. See Patel v. Patel, 359 S.C. 515, 532, 599 S.E.2d 114, 123 (2004) ("It is proper to impute income to a party who is voluntarily unemployed or underemployed."); Penny, 357 S.C. at 592, 594...