Hawkins v. Hawkins

• Decision Date: 17 April 2013
• Docket Number: No. 5116.,5116.
• Citation: 742 S.E.2d 677,403 S.C. 228
• Court: South Carolina Court of Appeals
• Parties: Charles A. HAWKINS, Appellant, v. Angela D. HAWKINS, Respondent. Appellate Case No. 2011–195506.

403 S.C. 228

742 S.E.2d 677

Charles A. HAWKINS, Appellant,

v. Angela D. HAWKINS, Respondent.Appellate Case No. 2011–195506.

No. 5116.

Court of Appeals of South Carolina.

Heard Feb. 5, 2013.

Decided April 17, 2013.

Donald Bruce Clark, of Charleston, and Sabrina R. Grogan, of Mount Pleasant, for Appellant.

J. Mark Taylor, of Moore Taylor & Thomas, PA, of West Columbia, Katherine Carruth Goode, of Winnsboro, and Sally Anna King–Gilreath, of Mount Pleasant, all for Respondent.

LOCKEMY, J.

Charles A. Hawkins (Father) appeals the family court's determination that he was not entitled to a termination or reduction of his child support payments. Specifically, he argues the family court erred by using an improper burden of proof; or in the alternative, the family court erred in its failure to properly recalculate his child support payments. Lastly, Father contends the family court erred in awarding Angela D. Hawkins (Mother) attorney's fees, but failing to award his attorney's fees. We affirm.

FACTS

Father and Mother were divorced by a final decree on February 3, 2004. Prior to the divorce, the family court approved a property settlement and support agreement (Settlement Agreement) which had been entered by the parties. Pursuant to that order, the parties were awarded joint custody of their two minor children with Mother having primary custody. Father was required to pay child support in the amount of $1,300.00 per month, pursuant to the Department of Social Services Child Support Guidelines (Child Support Guidelines). The order further provided that the amount of child support would be revisited on an annual basis:

The [Father] shall pay, pursuant to the [Child Support Guidelines], as for the child support the sum of $1,300.00 Dollars per month, due the first of each month, said sum to be paid directly to the [Mother]; that should the payment ever be more than five (5) days late, the [Mother] may present her Affidavit to the Court and all future payments shall be made thereafter through the Charleston County Family Court, together with the 3% administrative fee.

For the period of time until the marital home is sold and a closing has taken place, the [Father] has agreed to pay the mortgage, taxes and insurance on the marital home, water, home repair bills, the rent on the apartment and the power and utility bills for both the apartment and marital home. The [Father] further agrees to pay the automobile payments, automobile insurance coverages and gas for both cars. The cost of carrying these expenses will constitute child support during this period of time. At such time as the marital home is sold, the parties agree to calculate child support based on the shared [Child Support Guidelines]. Based on the gross income of each party at this time and the amount of parenting time of both party, the calculated child support is $1,300.00. This payment of child support shall begin the first month following the closing from the sale of the marital home. The parties agree to recalculate child support when the [Mother] begins full-time work, which is expected to be no later than September 2005. Child support will be revisited on an annual basis thereafter.

Around three years later, on May 22, 2006, the parties filed a consent order, noting a change in their respective incomes, and they recalculated Father's child support obligation pursuant to the Child Support Guidelines. That order provided in pertinent part:

The parties have experienced changes in their respective incomes such that a modification of child support is now warranted. Based upon the parties' respective current incomes, the Plaintiff presently earns $11,500.00 per month and the Defendant presently earns $2,750.00 per month (see attached as Exhibit C, the financial declarations of the parties), and pursuant to the [Child Support Guidelines] (a copy of which is attached hereto as Exhibit D), the Plaintiff's monthly child support obligation should be set at $1,077.00. The parties have therefore, based upon the foregoing, agreed to a modification of the Plaintiff's child support obligation, such that said obligation shall be reduced from $1,300.00 per month to $1,077.00 per month.

On October 8, 2007, a second consent order was entered, noting another change in the parties' respective incomes, as well as the fact Father would begin having 156 overnights per year with the children. The parties recalculated Father's child support obligation pursuant to the Child Support Guidelines. The second consent order provided in pertinent part:

The parties have experienced changes in their respective incomes such that a modification of child support is now warranted. The parties have therefore, based upon the foregoing, agreed to a modification of the Plaintiff's child support obligation, such that said obligation shall be reduced from $1,077.00 to $800.00 per month beginning September 1, 2007, and shall remain in effect through the end of May 2008, at which time the parties anticipate a substantial change in the Defendant's income, which will at that time warrant a recalculation of child support.

As referenced above, the parties shall in May of 2008 revisit and recalculate child support, and the parties further agree that said calculation shall be based, in part, upon the Plaintiff having 156 overnight visitations with the children, although their custody/visitation arrangement is, in fact, a shared (50/50) schedule, as referenced in Dr. Tyroler's attached as Exhibit D. The parties shall however, continue to comply, through December of 2007, with the visitation which was agreed upon by the parties through Dr. Tyroler.

On January 22, 2009, a third consent order was entered, granting Father 182 overnights per year with the children, and again recalculating Father's child support pursuant to the Child Support Guidelines. This was the fifth time in approximately six years Father's child support had been modified, including the two times an automatic recalculation was required pursuant to the initial Settlement Agreement. At the time of the third consent order, Father's income was stated as $9,833.00 per month and Mother's income was $2,900.00 per month. Father had been terminated from his job as a senior executive sales representative for GlaxoSmithKline. His income was derived from $130,000.00 received from his severance. The third consent order stated in pertinent part:

The parties agree that the Mother shall have the children 183 overnights per year and the Father shall have the children 182 overnights per year. Based upon the various child support guideline figures examined by the parties, they have agreed that the Father shall pay the Mother the sum of $640.00 per month as child support. The parties further agree that the Mother shall have to have a reported income in excess of $43,000[.00] before her income can be the basis for a modification of child support. The foregoing child support was calculated based on the following:

a. The Mother having 183 overnight and $2900[.00] per month income;

b. The Father having 182 overnights and $9833[.00] per month income and paying $150 in health care.

c. The parties have agreed that their current child care expenses have not been included in these support calculations.

On February 16, 2010, Father filed the present action requesting a termination of his child support payments and an award of child support in the amount of $98.00 from Mother. This fourth action was the first action in which Mother did not consent to Father's requested relief. On April 12, 2010, Mother filed her answer and counterclaim denying Father was entitled to a reduction of child support and further requesting attorney's fees and costs. Father filed a reply to Mother's counterclaim, and the trial was held on January 18–19, 2011.

At the time of trial, Father was fifty-one years old and claimed he made $0.00 income. He stated after his termination in 2008, he immediately commenced his job search, and assumed his severance package would support him until he found his next job. GlaxoSmithKline paid for a company to assist Father in finding a job, and the company told Father the odds of finding another pharmaceutical job were low and to anticipate making less money in his next job. Father admitted he did not investigate certain jobs because he spent most of his time searching for one that would provide a six-figure income. He was finally employed with a real estate company, Carolina One, and obtained his real estate license. His income was based on commission, and he claimed he had not yet made any sales or income from his new job.

Father stated his new spouse, a radiologist at a local hospital, financially supported him during his unemployment. Otherwise, he would have used his savings for support, which included an IRA account valued at $596,000.00. Father lived in a home measuring 3,400 square feet with an approximate $7,000.00 monthly mortgage payment. Father claimed he and his spouse had economized due to their decreased income in many ways, including cutting their second telephonelandline, ending their TiVo subscription, forgoing yard work such as laying pine straw, and reducing their sprinkler usage. While he was unemployed, he paid costs of $1,250.00 for a KAPLAN course and $1,600.00 for auditing classes to possibly obtain jobs in a certain profession, and he admitted those costs equaled three months of child support. Further, he admitted he, his spouse, and his two children took several vacations during 2009 and 2010 to destinations including the Virgin Islands, Grove Park Inn located in North Carolina, and Park City, Utah. He explained those trips were paid from a continuing education budget his spouse was given, but she no longer received that budget. He also testified he owned a 19–foot Key West boat, a life insurance policy in the amount of $500,000.00, a lot at Pawley's Island, and he further conceded he paid $200.00 a month for a maid to clean...