Gay v. Gay
| Decision Date | 23 January 2019 |
| Docket Number | Unpublished Opinion No. 2019-UP-041,Appellate Case No. 2016-001679 |
| Parties | Hollee Loyd Gay, Respondent, v. Stephen Michael Gay, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Lancaster County
Coreen B. Khoury, Family Court Judge
AFFIRMED AS MODIFIED
Thomas Franklin McDow, IV and Erin K. Urquhart, both of McDow and Urquhart, LLC, of Rock Hill, for Appellant.
Mitchell A. Norrell and Mandy Powers Norrell, both of Norrell & Powers Norrell, LLC, of Lancaster, for Respondent.
Stephen Michael Gay (Husband) appeals the family court's order arguing the family court erred by (1) mandating his alimony payment be deducted monthly from the value of his interest in the marital home, (2) requiring him to pay Hollee Loyd Gay (Wife) $447 every two weeks for child support, (3) ordering the parties to split their 2015 income tax refund, and (4) failing to consider the tax consequences of its award of tax exemptions. We affirm as modified.
Husband and Wife married on March 18, 2006. They had two children born in 2007 and 2011, respectively. The parties separated on or about March 16, 2014, and the children resided with Wife from that time until the time of the final hearing. Wife filed her complaint for divorce in June of 2014 alleging Husband had committed adultery and abused alcohol and prescription medications.
Following a hearing, the family court granted the divorce on the grounds of one year's continuous separation. The family court awarded joint custody with Wife named primary custodian. Husband was allowed visitation and parenting time with the children upon his completion of a South Carolina Department of Social Services (DSS) Safety and Treatment Plan.
The family court found Husband had a gross monthly income of $3,248 and paid $295 in insurance premiums for the children per month. The family court further found Wife had no income due to her medical conditions1 and paid $75 per month for child care. The family court ordered Husband to pay $447 every two weeks in child support.
The family court determined the marital home should be equally apportioned between the parties. The family court further found the home had a value of $50,000—it was a modular home placed on land owned by Wife's family. The home was in disrepair, and the only evidence presented regarding its current value in "as is" condition was that the home was worth $50,000. Wife and the children had been residing in the home since the parties separated, and Wife testified she and the children had nowhere else to live. The family court also determined Wife was entitled to $500 per month in alimony and ordered the alimony be deducted monthly from Husband's half-interest in the marital home. Any alimony obligation would cease upon Wife's remarriage or death. If Wife sold the home prior to the extinguishment of Husband's interest in it, Husband would immediately be entitled to any remaining equity. Once the value of Husband's interest in the marital homewas exhausted, he would be required to make monthly cash alimony payments to Wife.
The family court ordered the parties to file their 2015 state and federal income taxes jointly and equally divide any refund. Going forward, the parties were to claim one child each as a dependent for tax purposes. Husband filed the tax return and retained the entire refund of over $5,000. This appeal followed.
On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414-15, 709 S.E.2d 666, 667 (2011); see also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). "Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony." Sanders v. Sanders, 396 S.C. 410, 415, 722 S.E.2d 15, 17 (Ct. App. 2011). "The burden is upon the appellant to convince this court the family court erred in its findings." Id.
Husband maintains the family court erred in requiring his permanent, periodic alimony obligation to be met by a monthly reduction in his interest in the marital home. We disagree.
Husband argues the family court may not "unconditionally order the transfer of property as alimony or in lieu thereof." See Poniatowski v. Poniatowski, 275 S.C. 11, 12, 266 S.E.2d 787, 788 (1980) (). However, the family court did not make an unconditional transfer of property in lieu of alimony. Rather, it equitably divided the marital estate and permitted Wife to satisfy Husband's equitable share by foregoing an affirmative cash alimony payment for a period of time. The family court is allowed broad discretion in determining how to effect equitable distribution. See Bass v. Bass, 285 S.C. 178, 182, 328 S.E.2d 649, 651 (Ct. App. 1985) (); see also Widman v. Widman, 348 S.C. 97, 112, 557 S.E.2d 693, 701 (Ct. App. 2001) ().
In Bass, the family court awarded Wife permanent, periodic alimony and awarded Husband a 50% interest in the marital home. Id. at 180-81, 328 S.E.2d 650-51. Wife was given title to the marital home and directed to make monthly payments of $185 to Husband which would result in Husband not receiving his full equity in the property for more than fifteen years. Id. at 181, 328 S.E.2d at 651. This court noted family courts are encouraged to make final disposition of property interest when possible. Id. at 182, 328 S.E.2d at 652. Deviations from that directive "must be weighed against the cost, inconvenience[,] and other hardships that the [complaining spouse] might experience by being unable to realize [the] equity in the marital estate by a sale or other manner of immediate payment." Id. at 183, 328 S.E.2d at 652. The Bass court reversed and remanded for the family court to identify factors supporting Wife's possession of the marital home and the delay in Husband's receipt of his equity. Id.
The present case presents a similar factual scenario with the exception that instead of Wife making an affirmative monthly payment to Husband, Husband retains his otherwise required alimony payments until the value of his interest in the marital home is satisfied. The record reveals multiple factors that support the family court's decision including the following: (1) the marital home was in poor condition; (2) Wife suffers from myriad health issues; (3) the parties' minor children reside in Wife's custody in the home; (4) the home is located near Wife's relatives; and (5) Husband had failed to timely make court-ordered payments under the temporary order. These factors support a deviation from the directive regarding final dispositions of property when weighed against the hardship and inconvenience experienced by Husband, and we affirm.2
Husband also contends the family court erred in calculating child support. Husband argues the family court deviated from the Child Support Guidelines (theGuidelines) in requiring him to pay $447 every two weeks in child support. According to Husband, adherence to the Guidelines should result in an obligation of $164 per week. We disagree in part.
Bennett v. Rector, 389 S.C. 274, 281, 697 S.E.2d 715, 719 (Ct. App. 2010). In applying the Guidelines, "[g]ross income includes income from any source including . . . alimony." Id. (quoting S.C. Code Ann. Regs. 114-4720(A)(2) (Supp. 2009)).
Husband's argument hinges upon the amount of income Wife receives. As previously discussed, the family court ordered Husband's alimony obligation be satisfied by a monthly deduction of his half-interest in the marital home. The family court did not include the deduction as income to Wife in its calculation although alimony is traditionally considered income to the receiving spouse. As a practical matter, if Husband paid Wife $500 in alimony each month, that income would become a debit to Wife as she would owe it back to Husband as payment for his equitable interest in the home. Therefore, until Husband's $25,000 equitable half-interest is exhausted, the ultimate income result to Wife is a nullity. Once Husband's interest in the home is satisfied and he begins making a monthly alimony payment to Wife, the payment must be included as income and Husband's child support obligation should be adjusted to reflect that change. Therefore, the family court's ruling on this issue is affirmed as modified.3
Next, Husband argues the family court erred in ordering the parties to file a joint 2015 tax return and evenly split any refund. He maintains any income he earned after June 18, 2014, the date of Wife's filing, was nonmarital property. Therefore, any refund associated with income earned after that date was not subject to equitable division. We agree.
"The term 'marital property' as used in this article means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation . . . ." S.C.Code Ann. § 20-3-630(A) (2014). "The court does not have...
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