Jenkins v. Jenkins

• Decision Date: 16 April 2001
• Docket Number: No. 3331.,3331.
• Court: South Carolina Court of Appeals
• Parties: Wade M. JENKINS, Appellant/Respondent, v. Janna Grooms Watkins JENKINS, Respondent/Appellant.

345 S.C. 88

545 S.E.2d 531

Wade M. JENKINS, Appellant/Respondent, v. Janna Grooms Watkins JENKINS, Respondent/Appellant.

No. 3331.

Court of Appeals of South Carolina.

Heard March 7, 2001.

Decided April 16, 2001.

Rehearing Denied May 21, 2001.

Ben F. Mack and Jane McFadden, both of Charleston, for appellant/respondent.

Cynthia B. Castengera, of Columbia and D. Dusty Rhoades, of Charleston, for respondent/appellant.

HEARN, Chief Judge:

This is a cross-appeal in a divorce action. We affirm in part, reverse in part, and remand.

FACTS

Wade M. Jenkins (Husband) and Janna Grooms Watkins Jenkins (Wife) were married in March 1987 and separated in October 1997. They have no children together.

Husband instituted this action against Wife in January 1998 seeking an order of separate maintenance and support, identification and equitable apportionment of marital property and debts, and attorney fees and costs. Wife answered and counterclaimed, seeking alimony, exclusive use and possession of the marital home, equitable apportionment of marital property and debts, and attorney fees and costs.

The family court entered a temporary relief order requiring Husband to pay Wife's car insurance premiums and any mortgage arrears on the marital home. The family court specifically noted in the order that it would "take into consideration any payments made by [Husband], pursuant to this Order, in its determination of a Final Order in this matter in balancing any equities or obligations. ..."

At the final hearing, Wife moved to amend her pleadings to include a plea for divorce on the ground of one year's continuous separation. Husband acquiesced, and the family court granted the motion. The family court granted Wife a divorce on the ground of one year's continuous separation; ordered Husband to pay Wife $2,700 per month in rehabilitative alimony for one year; identified, valued and equitably apportioned marital property and debts; and awarded Wife $9,301.61 in attorney fees and costs.

Husband moved for reconsideration, averring in part that the family court's order failed to reimburse him for car insurance and house mortgage payments he made during the pendency of litigation "in order to keep property from foreclosure due to [Wife's] undisclosed failure to pay past due mortgage payments." The family court issued an order amending the divorce decree in part by apportioning to Wife $4,222.61 in fees and costs associated with the car insurance and mortgage expenses referenced in Husband's motion. After Husband filed his notice of appeal, the family court issued a supplemental order allowing the record to be supplemented with an affidavit submitted by Husband's attorney regarding fees and costs incurred in bringing the motion for reconsideration. Wife cross-appealed.

SCOPE OF REVIEW

In appeals from the family court, this court has the authority to find the 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). This broad scope of review does not, however, require this court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Neither are we required to 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).

DISCUSSION

I. Rehabilitative Alimony

Both parties appeal the award of rehabilitative alimony to Wife. Husband asserts Wife failed to establish entitlement to rehabilitative alimony and the family court failed to set forth facts sufficient to support the award. Wife asserts the family court erred in failing to award her permanent periodic alimony. We agree the award of rehabilitative alimony was improper.

Although rehabilitative alimony may be an appropriate form of spousal support in some cases, permanent periodic alimony is favored in South Carolina. See Gill v. Gill, 269 S.C. 337, 237 S.E.2d 382 (1977); Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988). If a claim for alimony is well-founded, the law favors the award of permanent periodic alimony. See O'Neill v. O'Neill, 293 S.C. 112, 359 S.E.2d 68 (Ct.App.1987).

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. Johnson, 296 S.C. at 301, 372 S.E.2d at 114; Toler v. Toler, 292 S.C. 374, 377, 356 S.E.2d 429, 431 (Ct.App.1987). It permits former spouses to develop their own lives free from obligations to each other. Johnson, 296 S.C. at 301, 372 S.E.2d at 114; Toler, 292 S.C. at 377, 356 S.E.2d at 431. However, it should be approved only in exceptional circumstances, in part, because it seldom suffices to maintain the level of support the dependent spouse enjoyed as an incident to the marriage. See Johnson, 296 S.C. at 301, 372 S.E.2d at 114; Toler, 292 S.C. at 377, 356 S.E.2d at 431; Voelker v. Hillock, 288 S.C. 622, 626-27, 344 S.E.2d 177, 180 (Ct.App.1986).

The factors to be considered in awarding rehabilitative alimony include: (1) the duration of the marriage; (2) the age, health, and education of the supported spouse; (3) the financial resources of the parties; (4) the parties' accustomed standard of living; (5) the ability of the supporting spouse to meet his needs while meeting those of the supported spouse; (6) the time necessary for the supported spouse to acquire job training or skills; (7) the likelihood that the supported spouse will successfully complete retraining; and (8) the supported spouse's likelihood of success in the job market. There must be evidence demonstrating the self-sufficiency of the supported spouse at the expiration of the ordered payments for rehabilitative alimony to be granted. Johnson, 296 S.C. at 301-02, 372 S.E.2d at 114; Toler, 292 S.C. at 377-78,356 S.E.2d at 431.

At the time of trial, Wife was 52 years old, and Husband was 58 years old. Both parties are in relatively good health. Husband has a tenth-grade education. Wife obtained a four-year college degree. Husband maintained stable employment throughout the marriage, although a heart attack kept him from his job for six weeks in 1994. At the time of trial, he was employed as a sales representative with a gross monthly income of $6,285.50, excluding biannual commissions. In addition, Husband receives rental income of $567 per month. Wife, on the other hand, has been out of the work force since 1990. Prior to 1990, Wife was employed as a bookkeeper. In 1986, when Wife was last employed full-time, she earned an annual salary of $28,000. In 1990, when she was working only part-time, Wife earned approximately $13,000. According to Wife, Husband acquiesced in her decision to stop working outside the home.

In awarding Wife rehabilitative alimony, the family court reasoned:

[Wife's] employment and earning potential is far less certain [than Husband's] and she has been virtually unemployed since 1990. [Husband] disputed [Wife's] reasons for being unemployed, which she has asserted were because of [Husband's] direction to remain in that status to deal with some of his personal affairs, including property dispute, litigation, taking care of the home and the financial affairs of the marriage. This Court gives more weight and credibility to [Wife's] testimony in light of the credibility factors reviewed as to Husband's credibility overall. As noted otherwise in these findings, [Wife] would need to be retrained with additional software training to accommodate possible employment as a bookkeeper.

The family court further found that the parties enjoyed a comfortable standard of living during the marriage, but Husband spent excessive amounts of money and time on trips to gambling casinos and playing video poker.¹ In our view, the facts and circumstances of this case do not warrant a departure from the well-established preference for permanent periodic alimony. We are particularly concerned here because Wife has been absent from the work force for an extended period of time, having foregone opportunities for advancement in favor of being a homemaker. The record does not contain evidence showing that Wife will, after a year of retraining, be able to maintain a lifestyle approaching that which she enjoyed during the marriage or even meet her basic expenses.

Accordingly, we reverse the award of rehabilitative alimony and remand the issue to the family court for determination of an appropriate award of permanent periodic alimony.

II. Identification of Marital Property

A. Oconee Property

Husband argues the family court erred in finding that a parcel of real estate located in Oconee County is marital in nature. We find no error.

S.C.Code Ann. section 20-7-473 (Supp.2000) defines marital property as:

"[A]ll real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation ... regardless of how legal title is held, except the following, which constitute nonmarital property: (1) property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse. ..."

The burden of showing an exemption under section 20-7-473 is upon the party claiming that property acquired during the marriage is nonmarital. Pool v. Pool, 321 S.C. 84, 89-90, 467 S.E.2d 753, 757 (Ct.App.1996).

As part of his financial declaration, Husband supplied the family court with a Marital Assets Addendum, which identified as a marital asset: One (1) lot located on Lake Hartwell in Oconee County, S.C. Titled Owner, [Husband]. Acquired in 1987, $6,000 est. Estimated present market value $3,000.

At trial,...