Graham v. Graham, 18998

• Decision Date: 05 January 1970
• Docket Number: No. 18998,18998
• Citation: 253 S.C. 486,171 S.E.2d 704
• Court: South Carolina Supreme Court
• Parties: Shelby Jean S. GRAHAM, Respondent, v. Donald Earl GRAHAM, Appellant.

Page 704

171 S.E.2d 704

253 S.C. 486

Shelby Jean S. GRAHAM, Respondent, v. Donald Earl GRAHAM, Appellant.

No. 18998.

Supreme Court of South Carolina.

Jan. 5, 1970.

Abrams, Bowen & Townes, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

MOSS, Chief Justice.

Shelby Jean S. Graham, the respondent herein, did, on November 6, 1967, commence this action against Donald Earl Graham, the appellant herein, in which she asked that the custody of the minor child of the marriage be awarded to her and that she be granted support and maintenance for herself and such child. The trial judge, on November 15, 1967, issued his order directing the appellant to pay the sum of $350.00 per month, Pendente lite, for the support of his wife and child. It appears that $200.00 a month was for the support of the child and $150.00 a month for the support of the respondent. The trial judge also ordered the appellant to pay to the respondent the sum of $669.50, representing one-half of a joint savings account of the parties and which the appellant had withdrawn for his own use.

It further appears that in May, 1968, a hearing was had before the trial judge to determine whether the appellant should be held in contempt for failure to comply with the aforesaid order of the court. At the contempt hearing it was represented to the court that the appellant had recently purchased a new business, in which he was then engaged, but such had not been as successful as he had anticipated and for that reason he was unable to make the monthly payments of $350.00 as had been previously ordered. The trial judge, by his order dated May 29, 1968, found that the appellant was in violation of the order of November 15, 1967, and in view of his explanation as to why he was unable to make the payments therein provided, reduced the alimony and support payments for the months of June, July and August of 1968, from $350.00 per month to $200.00 per month, with the proviso that thereafter the monthly payments would be as was provided in the original order.

The record shows that on October 5, 1968, the respondent filed an amended complaint seeking a divorce from the appellant A vinculo matrimonii upon the grounds of adultery, physical cruelty and desertion. Section 20--101 of the 1962 Code. An answer to the amended complaint was filed by the appellant on February 13, 1969, and hearings were held before The Honorable James H. Price, Jr., Judge of the Greenville County Court, on February 13, 1969, and March 27, 1969.

It appears from the record that the parties to this action were married on June 25, 1960, and a daughter, eight years old at the time of the hearing, was born of this marriage. While the parties to this action lived in Charlotte, North Carolina, the appellant was employed as a salesman by Republic Steel and had an income in 1965 of $7,949.00, in 1966 an income of $8,400.00, and in 1967 an income of $8,000.00. Even though the respondent testified that she was allowed $500.00 per month for household expenses, she did not testify as to what items were paid from this sum. In October, 1967, the appellant and the respondent moved to Greenville, South Carolina, where he was a manufacturer's agent. The record shows that in 1968 he earned from his business $9,938.12 and paid therefrom business expenses amounting to $5,490.33, leaving net earnings of $4,447.79, before taxes. He further testified that he had $8,000.00 in earned commissions but that such could not be paid to him until such time as the materials he had sold had been shipped to the purchasers and the projected shipping dates on these sales were eighteen to twenty months from the time of this trial. He admitted that his business was improving and he anticipated that his earnings would increase in the future but he stated that he was not making as much from his new business as he had previously made while in the employ of Republic Steel. The appellant testified that his personal living expenses were $285.00 per month or $3,420.00 per year. He further testified that he was indebted to three banks in the total amount of $3,900.00, and was additionally indebted, the amount not being stated, for the purchase of an automobile he was using in his business. He further testified that in view of his financial condition and his earnings, together with his own living expenses, he was unable to make the child support and alimonay payments required by the court. However, he did state the most he could possibly pay was $150.00 per month.

It was testified that during the marriage of the parties the respondent worked only sporadically and when they lived in Greenville she was not working. After the separation, the wife returned to Charlotte, North Carolina, and was there employed by a bank from which she earned take-home pay of $167.00 every two weeks or on an annual basis $4,342.00. She testified that her apartment rent was $150.00 per month and she had to pay $90.00 a month for a baby sitter for her daughter. She had the use of a car purchased for her by her father and while traveling for her employer she used a car belonging to the bank. She stated that she could not support herself and the child on her salary.

The trial judge, on March 31, 1969, issued his decree granting the respondent an absolute divorce from the appellant on the ground of desertion and ordering him to pay to the respondent $350.00 a month, $200.00 thereof was for the support of the infant daughter of the marriage, and $150.00 as alimony for the wife. It appearing from the evidence that the appellant was still not making as much from his new business as he had previously made while employed by Republic Steel, the trial judge provided that for the months of April through September, 1969, the total payments should be $250.00 a month, of which $100.00 would be alimony for the wife and $150.00 would be for child support. Thereafter, the total payments were to be $350.00 a month and allocated as above stated. The appeal is from the aforesaid order.

The appellant contends that under a view of all the circumstances of this case the amount of the award of alimony and child support was excessive and the trial judge abused his discretion in decreeing such an award.

Under our Divorce Act, Section 20--101 et seq. of the Code, the court is authorized in every judgment of divorce to make such orders for the care, custody and maintenance of the minor children of the marriage and to grant such alimony for the wife as may be fit, equitable and just. The court also has authority to increase, decrease or terminate, upon proper showing of a change of condition, the alimony and support payments provided for in a judgment of divorce. Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619.

The amount of alimony and child support cannot be determined by any mathematical formula but is a matter resting within the sound discretion of the trial judge and the amount awarded will not be disturbed on appeal unless an abuse of discretion is shown upon a view of all the circumstances of the particular case.

In arriving at the amount of alimony and child support, the trial judge should take into consideration the needs of the wife and child and the financial ability of the husband and father to meet them, considering his income and assets. It is proper to consider the wife's health, age, general physical condition, and her income and earning capacity. It is also proper to consider the husband's necessities and living expenses in fixing the amount of alimony and child support. The amount of the award for alimony and child support should not be excessive but should be fair and just to all parties concerned. Murdock v. Murdock, 243 S.C. 218, 133 S.E.2d 323; Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619.

As is heretofore stated the trial judge, on November 15, 1967, issued his order directing the appellant to pay the aggregate sum of $350.00 per month, Pendente lite, for the spport of his wife and child. In the trial judge's decree of March 31, 1969, he also directed the appellant to pay the aggregate sum of $350.00 per month as alimony for the wife and support for the child. At the time of the first order, the respondent was unemployed and had no income. At the time of the final decree she was employed and had the take-home pay above recited. It is apparent from what we have recited that the trial judge did not consider the income and earning capacity of the respondent in fixing the amount of alimony and child support. It is true, however, that the trial judge did take into consideration that the appellant was engaged in a new business and because such had not been too successful he reduced the required payments for a period of six months to $250.00 per month, but such reduction was not made because of any income that the wife had. It follows that the trial judge committed error in not considering the wife's income and earning capacity.

It is undisputed that the appellant had net income for the year 1968 of $4,447.79, before the payment of State and Federal income taxes, or a monthly income of $370.65. The wife had take-home pay for the year 1968 of $4,342.00 or $361.83 per month. The trial judge directed the appellant to pay the aggregate sum of $250.00 for six months of 1969, and by adding this amount to the monthly take-home pay of the appellant she would have $611.83 per month available for her support and that of their child. This would leave to the appellant only the sum of $120.65 per month with which to pay his necessities, living expenses, taxes and debts. When the monthly payments were increased to $350.00 per month, under the aforesaid order, and adding this sum to the take-home pay of the respondent she would have $711.83 per month for the support of herself and their child. This would leave the appellant only the amount of $20.65 per month to cover his living expenses and obligations. The award of alimony and...