Herring v. Herring, 22366

• Decision Date: 04 June 1985
• Docket Number: No. 22366,22366
• Court: South Carolina Supreme Court
• Parties: Thelma R. HERRING, Appellant, v. Sammie Archie HERRING, Respondent. . Heard

Page 366

335 S.E.2d 366

286 S.C. 447

Thelma R. HERRING, Appellant, v. Sammie Archie HERRING, Respondent.

No. 22366.

Supreme Court of South Carolina.

Heard June 4, 1985.

Decided Oct. 14, 1985.

[286 S.C. 448] Nancy H. Bailey, Dillon, for appellant.

John C. Lindsay, Jr., Bennettsville, for respondent.

CHANDLER, Justice.

Thelma R. Herring (Wife) appeals from Decree of the family court which, after granting her a divorce on the ground of adultery, determined issues of equitable distribution and possession of the family residence, alimony and child support, and attorneys fees.

Wife appeals on several grounds. We affirm as modified and remand for further proceedings in accordance with this opinion.

A divorce action is one in equity heard by the trial judge without a reference. This Court's scope of review extends to the finding of facts based on its own view of the preponderance of the evidence. Townes Associates Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706 (1984).

FACTS

Wife and Respondent (Husband) were married in 1957 and are parents of three children, two of whom are emancipated. The third child, Tony, was age eight at the time of family court hearings.

The parties' marriage was marked throughout by problems, resulting in several separations, the final of which was on June 26, 1982.

Shortly after the marriage Husband was in military service. Following discharge he began work with Carolina Power and Light Company (CP & L), where he is still employed.

In 1973 Wife and Husband purchased, in both names, a lot and residence in McColl, South Carolina, for $22,000.00. Husband contributed $1,000.00 to the purchase and later invested an inherited $2,000.00 in renovations. It is undisputed that Husband used his talents in carpentry and construction to upgrade the lot and residence, including the addition of a swimming pool, so that the value of the family residence at the time this litigation began had risen to $46,000.00 with a net equity of $25,800.00.

In the course of the marriage Husband accumulated CP&L stock worth approximately $7,000.00. Remaining assets consisted of one automobile valued at $3,500.00, another not valued and personal property or furniture worth $5,000.00.

Husband's take-home pay from CP&L is $1,506.73 per month. Wife, according to her financial declaration, earns an average of $280.00 per month as a salesperson for World Book and as a substitute teacher, although this income is subject to fluctuation.

ORDER OF TRIAL COURT

The trial judge's order granted Wife a divorce on grounds of adultery.

As to equitable distribution of real property, Husband was awarded 70% of the family residence, Wife, 30%. Further, right was given Husband to purchase Wife's 30%, failing in which Wife would be entitled to purchase Husband's 70% interest; if neither purchased the interest of the other, the residence would be sold and proceeds divided 70%--30%. He also made a distribution of personal property, awarding Wife an automobile and household furniture which he held offset Husband's retention of the CP&L stock.

Wife's request for possession of the family residence until the minor son's reaching majority was denied. The court expressed concern as to Wife's "... ability to maintain the residence without great cost to her ..." with ultimate loss in its value to both parties.

Alimony was decreed in the amount of $350.00 per month for a period of three years only, referred to by the trial judge as "a rehabilitative period of time", with immediate termination in event Wife should remarry within that period. The court limited alimony to three years on the basis that Wife was capable of performing more remunerative employment, and should be able to do so at the end of three years.

Husband was ordered to pay child support of $150.00 per month for three years, after which the amount would be increased to $250.00.

Wife's request that Husband bear the expense of their minor son's private school tuition was denied, but Husband was ordered to assist Wife in providing for post high school education.

Wife's petition for attorneys fees of $750.00 was denied. Husband was ordered to pay to Wife's attorney the sum of $400.00 "... to be applied toward the payment of the costs and expenses incurred by her in connection with this matter."

I. EQUITABLE DISTRIBUTION

Wife contends that the trial judge failed to give sufficient weight to the element of fault, relative to Husband's adultery. We find the distribution equitable when the record is considered in its entirety.

II. ALIMONY AND CHILD SUPPORT

The alimony awarded Wife by the trial judge is referred to in other jurisdictions as "rehabilitative", and defined as:

... alimony payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self support.

Turner v. Turner, 158 N.J.Super. 313, 385 A.2d 1280 (1978), cited in 97 A.L.R.3d 730, 742.

Our Court of Appeals held in Millis v. Millis, 282 S.C. 610, 320 S.E.2d 66 (1984), that rehabilitative alimony was not recognized in South Carolina. In the subsequent case of Eagerton v. Eagerton, --- S.C. ----, 328 S.E.2d 912 (S.C.App.1985), that Court specifically recognized the doctrine and addressed the factors which are to be considered in making such awards.

While this Court has yet to recognize such alimony by the term, "rehabilitative", we have considered and ruled upon family court awards for alimony which are based upon the premise that the recipient Wife is, or will in time, become self supporting. Mason v. Mason, 272 S.C. 268, 251 S.E.2d 198 (1979); Murdock v. Murdock, 243 S.C. 218, 133 S.E.2d 323 (1963).

In Mason we stated:

We have recognized that the ability of the wife to earn money in the future is a factor to be considered in establishing alimony. Murdock v. Murdock, 243 S.C. 218, 133 S.E.2d 323 (1963). However, under the circumstances of this case, we cannot conclude that the future or present self-sufficiency of the wife was adequately demonstrated by the evidence to justify the termination of her alimony on this basis, ....

In light of the inadequacy of evidence to justify the temporary nature of this award, we conclude that the lower court erred in terminating Mrs. Mason's alimony after 26 weeks. [Emphasis supplied].

Mason, supra, 272 S.C., at 270, 251 S.E.2d 198.

By our decision today we expressly recognize rehabilitative alimony awards, but caution bench and bar that they are valid only when established by evidence sufficient to support their temporary nature. More specifically, the record must demonstrate the self-sufficiency of the recipient at the expiration date of ordered payments.

In Eagerton the evidence was sufficient to support a rehabilitative alimony award. Here, as in Mason, it is insufficient.

Wife is 46 and without savings upon which to rely in event of the unexpected. She has no...