Goldman v. Goldman
| Decision Date | 20 January 2021 |
| Docket Number | 2021-UP-014 |
| Parties | Mitchell D. Goldman, Appellant, v. Jane Goldman, Respondent. Appellate Case No. 2018-000958 |
| 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.
Submitted December 1, 2020
Appeal From Dorchester County Anne Gue Jones, Family Court Judge.
Kenneth Eldon Peck, of The Peck Law Firm, L.L.C., of Mount Pleasant, for Appellant.
Sabrina R. Grogan, of Sabrina R. Grogan, Attorney at Law, of Mt. Pleasant, and Kevin Roger Eberle, of Charleston, both for Respondent.
Mitchell Goldman (Husband) appeals the family court's final order reducing his alimony payment to Jane Goldman (Wife) from $4 750 to $1, 500 per month and ordering him to pay Wife attorney's fees and expert witness fees. On appeal, Husband argues the family court erred in (1) awarding Wife attorney's fees and expert fees because she did not receive a beneficial result and is in a better financial position than Husband; (2) not awarding him attorney's fees when he received a more favorable result than Wife; (3) not making the alimony reduction retroactive; and (4) only reducing Husband's alimony payment to $1, 500 per month instead of terminating it or further reducing it based on the decrease in his income and the increase of Wife's income. We affirm.
The parties divorced in 2004 after twenty-seven years of marriage. Husband enjoyed a long career as a medical doctor, while Wife was a homemaker and stay-at-home mother. Pursuant to the parties' court-approved agreement, Husband agreed to pay Wife $5, 500 in monthly, permanent periodic alimony. Wife reentered the workforce at the age of fifty-four shortly before the parties' divorce. Since 2005, she has worked for the South Carolina Department of Juvenile Justice as a social worker. In 2007, Husband filed an action to reduce or terminate his monthly alimony payment, and in 2009, pursuant to an agreement reached by the parties, the family court issued a final order reducing Husband's alimony payment to $4, 750 per month but providing Husband could not seek to modify this alimony obligation until he turned sixty-six. At the time of the alimony adjustment, Wife made $36, 348 per year, and Husband made at least $350, 000 per year.
On December 28, 2016, anticipating his retirement and months before his sixty-sixth birthday, Husband filed this action requesting to terminate or reduce his alimony obligation. Wife answered, asking the court to dismiss Husband's complaint and to award her attorney's fees and costs. However, Wife stipulated that Husband had reached retirement age and his retirement was appropriate. The parties were unable to reach a settlement and proceeded to trial. The evidence showed (1) Husband worked until his retirement in September 2017, making at least $350, 000 per year since 2009 and $456, 043 in 2015; (2) at the time of trial, Wife still worked as a social worker, earning $42, 285 per year; (3) due to Husband's retirement, he only had $3, 587.40 in gross monthly income from retirement, social security, dividends, and rental income, and he had monthly expenses of $6, 552.39, not including his alimony obligation but including over $2, 000 in life insurance premiums on policies held for his current wife's benefit; (4) Wife's gross monthly income was $4, 853.82 from her employment, social security, and dividends, and Wife had monthly expenses of $4, 217.51; (5) Husband had over $375, 000 in retirement and investment accounts, he used $172, 000 he received for the sale of his portion of a medical practice to pay off the mortgage on his home and the rental home he owns, and he had ownership interests in three pieces of real property valued at $519, 000; and (6) Wife had $212, 000 in a retirement account, she contributed $2, 000 a month to her retirement account based on a financial planner's advice, and she still had mortgage, car, and other unsecured debt payments. Husband testified he never intended to pay Wife alimony forever, he "always meant that it would go away after [he] retired," and he believed the fair thing would be to terminate his alimony obligation.
The family court found Husband's retirement was "a substantial change in circumstances warranting a reduction in his alimony obligation" but did not warrant ending his alimony obligation. The family court therefore decreased Husband's alimony obligation to $1, 500 per month. The family court further found Wife could not pay her attorney's fees without dipping into her retirement funds; Husband was in a better financial position than Wife; and Wife received beneficial results because although Husband received a reduction in his alimony obligation, he sought a complete termination of alimony. Thus, the family court found Wife was entitled to attorney's fees and costs, but "since both parties have received some beneficial results, [Wife was] not entitled to have all of her attorney's fees paid by [Husband]." The family court ordered Husband to pay Wife's attorney's fees in the amount of $25, 000-out of a total $33, 854.04 in attorney's fees she incurred-and $4, 000 in expert fees, for a total of $29, 000. This appeal follows.
Generally, on appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); 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. Lewis, 392 S.C. at 385-86, 709 S.E.2d at 651-52. Additionally, appellate courts review the "family court's evidentiary or procedural rulings . . . using an abuse of discretion standard." Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018).
Husband argues the family court erred in awarding Wife attorney's and expert witness fees and not awarding him attorney's fees because (1) due to his retirement, Wife's income exceeds his, and she has substantial retirement savings; (2) he received the beneficial result in the case because his alimony obligation was significantly reduced, and Wife did not receive the relief she requested, namely the dismissal of his claims; (3) Wife "is in an equal or superior financial position" to Husband as she "has disposable income each month," while he runs a deficit, and the assets attributed to him are shared jointly with his new wife; and (4) Wife's standard of living would not be impacted by paying her own fees and costs because she has disposable monthly income and has accumulated a "windfall created by the alimony payment[s]" since the entry of the family court order. We disagree.
The family court did not err in awarding Wife attorney's and expert witness fees and not awarding such fees to Husband. See Couch v. Couch, 431 S.C. 170, 180, 847 S.E.2d 260, 265 (Ct. App. 2020) . First, the evidence shows Wife does not have an ability to pay her own attorney's fees as (1) her total attorney's fees of $33, 854.04 amounts to over three-fourths of her yearly salary of $42, 285; (2) she testified paying her attorney's fees would be an "incredible hardship"; and (3) she already has over $130, 000 in debt, including a mortgage on her home. Husband, on the other hand, is better able to pay his own attorney's fees as he only has a minor debt of $1, 200 to Home Depot; he has more money in retirement and investment accounts than Wife-$375, 000 compared to $212, 000; he does not have a mortgage on his home or rental home; he can bring in money by renting out his rental home at market rates; and he has interests in other property. See McMurtrey v. McMurtrey, 272 S.C. 118, 121, 249 S.E.2d 503, 505 (1978) ("There is no limitation that alimony payments be made solely from current earnings."). Husband testified he would have to start depleting his retirement account to pay alimony to Wife. That may be true, but based on his real estate holdings and retirement and investment accounts, he is still better able to pay attorney's fees than Wife. Thus, as to the parties' ability to pay attorney's fees, we find this factor weighs in Wife's favor.
Second as to who received the beneficial outcome in this case, we note in his complaint, Husband asked for his alimony obligation to be terminated or reduced, and his alimony obligation was greatly reduced from $4, 750 to $1, 500. In this sense, Husband received a beneficial result. However, we acknowledge Husband offered Wife several, less lucrative settlement offers than the result reached by the family court; Wife made a settlement offer to Husband that included Husband paying her $1, 500 per month in alimony, the amount ultimately ordered by the court[1]; and Husband testified he never planned to pay Wife alimony after he retired, and he thought paying Wife nothing would be the fair amount of alimony. Thus, Wife received a beneficial outcome because Husband's alimony obligation was not fully terminated, and the amount of his modified alimony obligation is what she offered him in a settlement offer. Furthermore, we note Husband, not Wife,...
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