Hunnicutt v. Hunnicutt

Decision Date12 January 2006
Docket Number2006-UP-024
PartiesJane Addis Hunnicutt, Respondent, v. Stanley Philips Hunnicutt, Appellant.
CourtCourt of Appeals of South Carolina

Jane Addis Hunnicutt, Respondent,

Stanley Philips Hunnicutt, Appellant.

No. 2006-UP-024

Court of Appeals of South Carolina

January 12, 2006


Submitted December 1, 2005

Appeal From Horry County Lisa A. Kinon, Family Court Judge

John O. McDougall and Emma I. Bryson, both of Sumter, for Appellant.

James L. Hills, of Myrtle Beach, for Respondent.


Stanley Philips Hunnicutt (Husband) appeals from the family court's order granting Jane Addis Hunnicutt (Wife) a divorce and awarding her alimony, an equitable division of the marital property, and attorney's fees. He asserts the family court improperly awarded alimony based, in part, on expenses associated with the parties' emancipated daughter. Additionally, he contends the family court erred in its valuation of marital property, including Wife's retirement account. Finally, he maintains the court erred in awarding Wife attorney's fees. We affirm in part, reverse in part, and modify in part. [1]


Husband and Wife were married for nearly twenty-six years and lived in Greenville County. The parties had two daughters, both of whom were emancipated. One of the daughters attended college and was aided financially by Wife. Additionally, the parties had historically allocated money received from a partnership towards her tuition.

Shortly before the parties separated, Husband was terminated from his employment with Springs Industries and received a severance package equal to six months salary. Husband became self-employed as a sales representative for ViPac. His salary was approximately $73, 000 per year. Wife testified Husband informed her that once he was established he could earn greater income in the range of $90-110, 000 per year.

After the separation, Wife moved to the parties' residence in Horry County and took a teaching position. However, in early 2003, Wife returned to Greenville due to emotional problems. She eventually took a position as a guidance counselor earning a gross income of approximately $53, 000 per year.

Wife sought a divorce on the ground of Husband's adultery. She further sought permanent periodic or lump sum alimony, an equitable division of the parties' assets and debts, and attorney's fees. Husband answered and counterclaimed requesting that neither party receive alimony, the marital residence be sold, an equitable division of marital assets, and attorney's fees.

The family court granted the divorce on the ground of Husband's adultery, awarded Wife permanent periodic alimony of $750 per month, awarded Wife the marital home, divided the marital assets equally (fifty percent to each party), and awarded Wife $10, 000 in attorney's fees. After Husband filed a motion for reconsideration, the family court altered the amount of his severance package for the purpose of dividing the marital estate. This appeal followed.


In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v. Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct. App. 1996). However, this broad scope of review does not require us to disregard the family court's findings. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Nor must we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981); Miles v. Miles, 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct. App. 2003).


Husband contends the family court erred in its determination that Wife was entitled to an award of alimony, the valuation of Wife's retirement account, the equitable distribution of marital property, and the award of attorney's fees to Wife.

I. Alimony

Husband maintains the family court erred in awarding Wife permanent periodic alimony. First, he contends Wife's testimony indicated she sought rehabilitative alimony, which was not requested in her complaint. Second, he asserts Wife's financial declarations improperly included expenses related to the parties' daughter and the need for alimony was not shown. Finally, he argues the family court erred in imputing income to him as a result of his termination from Springs and his self-employment as a sales representative.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dearybury v. Dearybury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002). Alimony is a substitute for the support which is normally incident to the marital relationship.” Spence v. Spence, 260 S.C. 526, 529, 197 S.E.2d 683, 684 (1973); Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988). Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage.” Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001). It is the duty of the family court to make an alimony award that is fit, equitable, and just if the claim is well founded.” Id. at 184, 554 S.E.2d at 424. The family court judge may grant alimony in an amount and for a term as the judge considers appropriate under the circumstances. S.C. Code Ann. § 20-3-130(A) (Supp. 2004).

Factors to be considered in making an alimony award include: (1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5) standard of living established during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses of the parties; (8) marital and nonmarital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; and (12) prior support obligations; as well as (13) other factors the court considers relevant. S.C. Code Ann. § 20-3-130(C) (Supp. 2004). The court is required to consider all relevant factors in determining alimony. Epperly v. Epperly, 312 S.C. 411, 415, 440 S.E.2d 884, 886 (Ct. App. 1994). No one factor is dispositive. Lide v. Lide, 277 S.C. 155, 157, 283 S.E.2d 832, 833 (1981).

A. Wife's Testimony

Husband contends Wife's testimony established that she sought rehabilitative alimony of only $750 per month for ten years. He claims because this type of alimony was not requested in her complaint, she should be barred from receiving any alimony. In the alternative, he contends the family court erred in awarding her $750 per month as permanent periodic alimony given her testimony. We disagree.

Although rehabilitative alimony may be an appropriate form of spousal support in some cases, permanent periodic alimony is favored in South Carolina.” Jenkins v. Jenkins, 345 S.C. 88, 95, 545 S.E.2d 531, 535 (Ct. App. 2001). Rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference for permanent periodic support. The purpose of rehabilitative alimony is to encourage a dependent spouse to become self-supporting after a divorce.” Id.

Additionally, [t]he appellate courts of this state have said many times that ordinarily a party may not receive relief not contemplated in his pleadings.” Loftis v. Loftis, 286 S.C. 12, 13-14, 331 S.E.2d 372, 373 (Ct. App. 1985) (citing Gainey v. Gainey, 279 S.C. 68, 301 S.E.2d 763 (1983); Ingram v. Ingram, 273 S.C. 113, 254 S.E.2d 680 (1979); Bass v. Bass, 272 S.C. 177, 249 S.E.2d 905 (1978); Bolding v. Bolding, 283 S.C. 501, 323 S.E.2d 535 (Ct. App. 1984); Bryan v. Bryan, 282 S.C. 506, 319 S.E.2d 360 (Ct. App. 1984)). Due process requires that a litigant be placed on notice of the issues which the court is to consider.” Richardson v. Richardson, 309 S.C. 31, 35, 419 S.E.2d 806, 808 (Ct. App. 1992).

Wife's pleadings made a request for the court to require the Defendant both pendente lite and permanently, to pay a reasonable amount of permanent periodic support to Plaintiff... or, in the alternative, for payment of a lump sum based upon the Defendant's substantial estate.” Later in her complaint she again requested either permanent periodic or lump sum alimony, but never did she specifically request rehabilitative alimony. Her complaint also asked the court to grant such other and further relief as [the family court] may deem just and appropriate.”

During her trial testimony, Wife was asked: Mrs. Hunnicutt, do you think that the Court should award you alimony?” She replied: Yes, sir.” She was then asked: And do you have an amount that you think would be fair and appropriate?” She responded: $750 a month for ten years.” In explaining her answer she stated: Looking at my salary and what I can make and what [Husband's] salary is and what he can make, I felt like that would be a fair price.”

Husband made a motion for an involuntary dismissal of Wife's cause of action for alimony, arguing her testimony did not support a type of alimony requested in her complaint. The court denied the motion, and ultimately awarded Wife $750 a month in permanent periodic alimony. The court noted: This court found [Wife] to be in the $1000.00 per month category, but awarded $750.00 because that is what [Wife] asked for.... Court finds it does not have the authority to cap this amount or to impose a time limit, therefore, this award is a permanent periodic alimony. There were no facts for rehabilitative alimony.”

While Wife's request in her testimony appears to ask for rehabilitative alimony, it was merely a suggestion of an amount she felt was...

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