King v. King

• Decision Date: 16 June 2009
• Docket Number: No. 4565.,4565.
• Court: South Carolina Court of Appeals
• Parties: Velveteen Jackson KING, Respondent, v. Wendell Junius KING, Appellant.

681 S.E.2d 609

Velveteen Jackson KING, Respondent, v. Wendell Junius KING, Appellant.

No. 4565.

Court of Appeals of South Carolina.

Heard March 17, 2009.

Decided June 16, 2009.

Dwight C. Moore, of Sumter, for Appellant.

Cheryl T. Hopkins, of Florence, for Respondent.

KONDUROS, J.

In this domestic action, Wendell Junius King (Husband) argues the family court erred in awarding Velveteen Jackson King (Wife) alimony and attorney's fees because it failed to consider the applicable factors. Husband further contends the family court erred in its division of marital property by assigning no value to two vehicles, despite Wife's testimony those vehicles were worth a total of $24,000. We affirm.

FACTS

Husband and Wife married on May 24, 1997. This was the parties' second marriage to each other. They had two children born during their first marriage, one in 1978 and the other in 1985, but none during their second marriage. In 2005, Wife filed a complaint seeking a divorce, alimony, the marital home, and the equitable division of other property. Husband filed an answer and counterclaim. At the beginning of the hearing on the matter, Wife withdrew her request for a divorce. Husband moved to supplement his pleadings to seek a divorce. However, Wife objected based on insufficient notice and after Husband conceded Wife lacked notice, the family court denied the motion.

Following the hearing, the family court issued an order awarding the Wife permanent, periodic alimony of $1,000 per month. In making that award, the court noted the marriage lasted eight years and both parties were forty-eight years old and in good health. The family court determined Husband's gross monthly income was $3,585 from Georgia Pacific and the Army Reserve, which was "significantly higher" than Wife's income of $936 a month. The court noted Wife currently worked as a housekeeper at Holiday Inn Express but was previously employed as a welder. The family court found the parties had a modest standard of living; they lived in a mobile home on land they owned. The court further found "Husband gave no reason for leaving home" and had "moved in with another woman but claim[ed] to be only a boarder in her home." The court indicated the tax consequences of a permanent, periodic alimony award were the alimony would be deductible to Husband and taxable to Wife. The court also determined "Wife's financial declaration reflects a need for assistance to be able to realize her monthly budget. The Husband's declaration reflects the ability to assist the Wife." Based on those factors, the family court awarded Wife permanent, periodic alimony of $1,000 per month.

Additionally, the family court determined although the marital home had been Wife's premarital property, the couple transmuted it into marital property. The court found the land and mobile home had a net negative value of $10,486 and apportioned it to Wife. Husband had two retirement accounts with a total value of $22,654, of which the family court found half to be marital property. The court determined, "While the Husband made the greater financial contributions, the Wife earned some outside income and was the primary homemaker doing the traditional duties normally associated with the Wife such that a 50/50% division of the marital estate is appropriate." Accordingly, the family court awarded Wife $5,663 of Husband's retirement accounts to be accomplished by a Qualified Domestic Relations Order (QDRO).

The family court also divided the parties' vehicles. The court awarded Wife the Toyota Forerunner, which Wife had valued at $9,000 and testified had a $9,000 balance remaining on it, and the Nissan Maxima, which Wife valued at $15,000 with a $15,000 balance. Additionally, the court awarded Husband his truck, which had a net value of $6,000.

The family court found the total marital estate had a net value of $6,840 and awarded each party half of that value. Because the property allocated to Wife had a negative value of $4,823 and Husband's allocation had a positive value of $11,663, the family court ordered Husband pay Wife an additional $8,243 out of his retirement accounts in the form of a QDRO.

As to attorney's fees, the family court found Wife's attorney billed her at the rate of $150 an hour, which is the fee normally charged in the locale. The family court noted Wife was represented by counsel who regularly appeared before it. The family court also found counsel obtained beneficial results for Wife; specifically, she was successful in the issues raised in her complaint, was awarded the marital residence and alimony, and successfully challenged Husband's motion to supplement the pleadings. The family court also stated it considered Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991), and Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (Ct.App.2006), in arriving at its award. Although Wife's affidavit requested attorney's fees of $4,885.50, the court acknowledged that figure did not take into account preparing the QDRO, which the family court ordered Wife's counsel to prepare. The court determined Husband was in a better financial position than Wife to pay attorney's fees. The court noted "[a]fter paying $1000.00 per month alimony, the net cost to the Husband will be only $747.00 per month and the Wife, after realizing the taxable alimony award will realize only $820.00 per month. The Husband will continue to have more disposable income even after the payment of alimony." Accordingly, the family court ordered Husband to contribute $5,000 to Wife's attorney's fees at a rate of $250 per month.

Husband filed a motion for reconsideration. The family court denied the motion finding the order contained sufficient findings to support alimony, equitable division, and attorney's fees and also properly valued the vehicles. This appeal followed.

STANDARD OF REVIEW

"On appeal from a family court order, this [c]ourt has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence." E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). "Because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion." Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003). When the evidence is disputed, the appellate court may adhere to the family court's findings. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

LAW/ANALYSIS

I. ALIMONY

Husband argues the family court abused its discretion in awarding alimony because it failed to properly consider and weigh the statutory factors. Additionally, he contends the family court erroneously awarded alimony before determining the equitable distribution. We disagree.

The amount to be awarded for alimony, as well as a determination of whether the spouse is entitled to alimony, is within the sound discretion of the family court. Smith v. Smith, 264 S.C. 624, 628, 216 S.E.2d 541, 543 (1975); see also Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004) ("The amount of alimony is within the [family] court's sound discretion and should not be disturbed on appeal unless an abuse of discretion is shown."). An abuse of discretion occurs when the decision is controlled by an error of law or is based on factual findings without evidentiary support. Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.App.2004).

The family court should consider the following factors in awarding alimony:

(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.

Davis v. Davis, 372 S.C. 64, 79-80, 641 S.E.2d 446, 454 (Ct.App.2006) (citing S.C.Code Ann. § 20-3-130(C) (Supp.2008)). "The court is required to consider all relevant factors in determining alimony." Id. at 80, 641 S.E.2d at 454. The South Carolina Supreme Court has held "[t]hree important factors in awarding periodic alimony are (1) the duration of the marriage; (2) the overall financial situation of the parties, especially the ability of the supporting spouse to pay; and (3) whether either spouse was more at fault than the other." Patel, 359 S.C. at 529, 599 S.E.2d at 121. In determining whether to award alimony and what amount and type of alimony to award, "[n]o one factor is dispositive." Pirri v. Pirri, 369 S.C. 258, 267, 631 S.E.2d 279, 284 (Ct.App.2006). "[A]ll of the facts and circumstances disclosed by the record should be considered...." Nienow v. Nienow, 268 S.C. 161, 171, 232 S.E.2d 504, 510 (1977). Rule 26(a), SCRFC, provides that "[a]n order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision." See also Griffith v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534-35 (Ct.App. 1998) (holding the family court must make specific findings of fact on the record for each of the required factors to be considered in making its decisions).

Husband asserts the family court did not consider (1) marital misconduct and fault but noted "Husband gave no reason for leaving home"; (2) the emotional condition of each spouse; (3) Husband's educational background, employment history, and earning potential; and (4) whether either spouse had a prior support obligation. The family court is only required to consider relevant factors. Husband does not point to any misconduct or fault on Wife's part. Further, although...