Hailey v. Hailey, 3637.

• Decision Date: 05 May 2003
• Docket Number: No. 3637.,3637.
• Parties: Charles Floyd HAILEY, Jr., Respondent, v. Betty Kimbrell HAILEY, Appellant.
• Court: South Carolina Court of Appeals

357 S.C. 18

590 S.E.2d 495

Charles Floyd HAILEY, Jr., Respondent, v. Betty Kimbrell HAILEY, Appellant.

No. 3637.

Court of Appeals of South Carolina.

Heard November 6, 2002.

Decided May 5, 2003.

Lucy L. McDow, of Rock Hill, for appellant.

Forrest C. Wilkerson, of Rock Hill, for respondent.

HOWARD, J.:

Charles Floyd Hailey ("Husband") brought this action against his former spouse, Betty Kimbrell Hailey ("Wife"), seeking a downward modification of his alimony obligation. Husband asserted a change in circumstances occurred because Wife began receiving monthly Social Security benefits after the award of alimony and because income should be imputed to her for the substantial appreciation in value of her nonincome-producing real property. Wife denied a decrease was warranted and counterclaimed for an increase in alimony and attorney's fees. Following multiple hearings, the family court denied Husband's motion for a reduction in alimony, declining to impute income to Wife for the appreciation in value of her real property. The court granted Wife an increase in alimony and awarded her attorney's fees. Husband appeals. We affirm in part and reverse in part.

FACTUAL/PROCEDURAL BACKGROUND

The parties were divorced in July of 1993, after forty-three years of marriage. The divorce decree reserved all issues of support and property division for later disposition. After twelve hearings, the family court issued its final order on May 23, 1994, dividing the marital property and awarding Wife $1,250.00 per month in periodic alimony.

Wife appealed the alimony award to the supreme court, and while the appeal was pending, she began receiving Social Security benefits, prompting Husband's first motion for a reduction in alimony in September of 1993. Following a remand from the supreme court to allow the issue to be heard, the case was scheduled for hearing on August 3, 1995. At that time, however, Husband agreed to dismiss the motion because he believed it was unlikely the court would grant a modification. In a consent order, the motion was dismissed, and Husband agreed to pay Wife's attorney's fees.

In 1997, Husband again brought an action to reduce his alimony obligation, contending Wife's 1994 increase in income from Social Security and other sources, along with her substantial increase in net worth from the appreciation of nonincome-producing real property, were sufficient changes in circumstances to justify an alimony reduction.

Wife denied a reduction was warranted and counterclaimed for an increase in alimony on the grounds that she was unable to maintain the standard of living she enjoyed during the marriage.

The family court, Judge William R. Byers, Jr., conducted multiple hearings. However, Judge Byers retired before making a decision, leading to a substantial delay, and the necessity of re-trying the issues. To expedite the process, the parties reached certain factual stipulations concerning their original economic circumstances and their circumstances as of 1998. The parties agreed the relevant time period for purposes of determining the cross-motions was between May 23, 1994, the date of the original award, and March 31, 1998, the date the motion for modification was first heard by Judge Byers. Therefore, although a substantial time has passed, we confine our review to this stipulated time period. The parties also stipulated to their net worth on May 23, 1994 and as of March 31, 1998. According to the stipulation, Wife's net worth had increased from $662,796.00 to $849,919.99, and Husband's net worth had increased from $733,010.00 to $988,414.00.

Following a hearing, the family court, Judge Robert E. Guess, found a change of circumstances had occurred. Thus, he increased Wife's alimony award from $1,250.00 to $1,675.00 per month, citing the following reasons: 1) Wife's age; 2) the deterioration of Wife's physical and emotional health; 3) the deterioration of Wife's personal residence; and 4) Wife's decreased standard of living. Additionally, Judge Guess concluded Wife's real estate holdings were less marketable than Husband contended, and he refused to impute income to Wife for them. Furthermore, because Wife prevailed on her motion, and after considering the appropriate factors, Judge Guess awarded Wife attorney's fees.

STANDARD OF REVIEW

"Questions concerning alimony rest with the sound discretion of the trial court, whose conclusions will not be disturbed absent a showing of abuse of discretion." Sharps v. Sharps, 342 S.C. 71, 79, 535 S.E.2d 913, 917 (2000). "An abuse of discretion occurs when the court is controlled by some error of law or where the order, based upon factual findings, is without evidentiary support." Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct.App.1996). "However, an appellate court reviewing a family court order may find facts in accordance with its own view of the preponderance of the evidence." Sharps, 342 S.C. at 79, 535 S.E.2d at 917. "[W]hen an appellate court chooses to find facts in accordance with its own view of the evidence, the court must state distinctly its findings of fact and the reason for its decision." Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).

DISCUSSION

I. Husband's Motion to Decrease Alimony

Husband argues the family court erred by denying his motion to decrease alimony. He contends the original decree required the family court to decrease alimony when Wife began receiving Social Security benefits. He also asserts a decrease is warranted because the evidence shows her income increased over the applicable period and income should have been imputed to her for the non-income-producing real properties she owns.

A. Judicial Estoppel

As a threshold matter, Wife argues Husband's claim to decrease alimony is barred by judicial estoppel. We conclude this issue is not preserved for review.

After Wife began receiving Social Security in August of 1994, Husband moved for a decrease in alimony. Before the scheduled hearing, Husband agreed to dismiss the motion because he believed, given the relative financial positions of both parties, relief was unlikely.

In 1996, Husband brought another action requesting a reduction that was again dismissed without prejudice.

In 1997, Husband brought the current motion to modify the alimony award. In her answer, Wife raised res judicata as a defense based upon the orders dismissing the previous motions. However, the record does not reflect Wife raised judicial estoppel as a bar to this modification action. Furthermore, the family court, Judge Guess, did not rule on this issue.

In Noisette v. Ismail, our supreme court held issues not raised to and ruled on by the trial judge were not preserved for review by an appellate court. 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991); see Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 704 (Ct.App.2001)

(holding issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review). Therefore, this issue is not preserved for our review.

B. Reduction based upon wording of the divorce decree

Husband argues the family court erred by denying his motion to decrease alimony because the original divorce decree required a reduction once Wife began receiving Social Security benefits. We disagree.

The original divorce decree contained the following language:

"[A]limony will be reviewable upon the Wife attaining the age of sixty-five (65) years or otherwise being able to draw on ... [Husband's] social security and [his] Medicare coverage. These will be substantial changes in circumstances for the alimony to be modified."

(emphasis added).

"As a general rule, judgments are to be construed like other written instruments." Eddins v. Eddins, 304 S.C. 133, 135, 403 S.E.2d 164, 166 (Ct.App.1991). "The determinative factor is the intention of the court, as gathered, not from an isolated part thereof, but from all parts of the judgment itself." Id. Furthermore, "[a]n order should be construed within the context of the proceeding in which it is rendered." Dibble v. Sumter Ice & Fuel Company, 283 S.C. 278, 282, 322 S.E.2d 674, 677 (Ct.App.1984).

This Court has noted that, "[g]enerally, changes in circumstances within the contemplation of the parties at the time the decree was entered do not provide a basis for modifying either an alimony allowance or a child support award." Calvert v. Calvert, 287 S.C. 130, 139, 336 S.E.2d 884, 889 (Ct.App.1985). However, in applying this general rule, the family court should look not only at whether the parties contemplated the change, but also "most importantly whether the amount of alimony in the original decree reflects the expectation of that future occurrence." Sharps, 342 S.C. at 78, 535 S.E.2d at 917. Moreover, as our supreme court noted, "There are some future changes which may be in contemplation of the parties at the time of the decree but, due to other considerations, cannot be addressed at that time in the divorce decree." Id. at 77, 535 S.E.2d 913, 336 S.E.2d at 916.

The family court noted the imminent increase in Wife's income from the onset of Social Security benefits in the divorce decree. This provision in the order makes it clear that Social Security benefits were not factored into the original alimony award. Just as clearly, the family court did not attempt to allocate a reduction in alimony based on this future event. Rather, the original order stated alimony was reviewable once this event occurred.

The family court, Judge Guess, found Wife's income was inadequate to pay her monthly expenses, even considering her Social Security benefits. Her 1998 income was $2,297.00 per month, including her $564.00 per month Social Security benefit, leaving her with a deficit of $489.00 per month. Based on Husband's financial declaration, his income grew from $5,374.00 per month to $11,507.00 per month,¹ and, using his figures, he...