Lewis v. Lewis

• Decision Date: 14 November 2012
• Docket Number: No. 5050.,5050.
• Citation: 734 S.E.2d 322,400 S.C. 354
• Court: South Carolina Court of Appeals
• Parties: Padgett S. LEWIS, Respondent, v. Brian Randolph LEWIS, Appellant. Appellate Case No. 2010–173166.

400 S.C. 354

734 S.E.2d 322

Padgett S. LEWIS, Respondent,

v. Brian Randolph LEWIS, Appellant.Appellate Case No. 2010–173166.

No. 5050.

Court of Appeals of South Carolina.

Heard Sept. 11, 2012.

Decided Nov. 14, 2012.

Thomas M. Neal, III, of Law Offices of Thomas M. Neal, III, of Columbia, for Appellant.

Carrie A. Warner, of Warner, Payne & Black, of Columbia, for Respondent.

HUFF, J.

Brian Randolph Lewis (Husband) appeals the order of the family court, asserting the court erred in (1) awarding child support to Padgett S. Lewis (Wife) based upon an imputed monthly income to him of $2,900.00, (2) failing to award the parties joint custody of their minor child or, alternatively, failing to award Husband more than standard visitation, (3) finding Husband's therapy counselor was unaware of certain matters involving Husband, and (4) requiring each party to pay his or her own attorney's fees. We affirm in part and reverse and remand in part.

FACTUAL/PROCEDURAL HISTORY

Husband and Wife were married on September 2, 2001, and have one child from the marriage (Son), who was born on April 27, 2004. The parties separated on October 29, 2006, following an incident between the two, wherein both alleged a physical assault by the other. Wife left the marital residence with Son at that time, and filed a complaint and motion for pendente lite relief on an expedited basis on October 31, 2006. Following a November hearing, the court issued a temporary order on December 14, 2006, granting Wife custody of Son and ordering Husband to pay $1,024 a month in child support, based upon the child support guidelines and submitted financial declarations. The court further ordered that, upon Husband providing a letter from his counselor, Dr. Samer Touma, Husband was entitled to visitation every other weekend from Friday until Sunday, two hours on Wednesdays during weeks he did not have overnight visitation, and for a three day period during the Christmas holidays that year. On March 7, 2008, the court subsequently modified Husband's visitation, extending the weekend visitation until Monday morning and providing for visitation during the Thanksgiving and Christmas holidays, as well as during spring break, Easter, and the summer months. On April 11, 2008, Husband filed a motion for pendente lite relief, alleging he became unemployed on April 2, 2008, and seeking a decrease in his child support payments. The family court issued an order on May 15, 2008, denying Husband's request, but allowing Husband to use his equity in the marital home as an advance against his share of equitable distribution for purposes of fulfilling his obligation. On September 24, 2008, Husband filed a motion, on an expedited basis, to require a psychological evaluation of the parties for use in determining the best interests of Son in regard to the custody issue. On October 17, 2008 the family court granted this motion, appointing a clinical psychologist, Dr. Marc Harari, to conduct the psychological evaluations.

The case was heard by the family court over a period of three days in November 2008, and February and March 2009. By order dated July 10, 2009, the family court issued a final decree of divorce in the matter, finding Wife entitled to a divorce on the ground of one year of continuous separation of the parties. The court denied Husband's request for joint custody, finding this case was not appropriate for same. The court granted Wife's request and denied Husband's for primary custody, finding it in Son's best interest to remain with Wife. The court further granted Husband visitation every other weekend from Friday evening until Monday morning, Mondays following non-visitation weekends from 5:00 p.m. to 7:30 p.m., and ordered a split schedule between the parties for Thanksgiving, Christmas, spring break and Easter, to be followed on a yearly rotating basis between the parties. Husband also received four non-consecutive weeks of visitation during the summer. Additionally, the family court found Husband was unemployed at that time, but imputed an income to him of $2,900.00 a month, or $34,800.00 annually, and ordered Husband to pay $125.00 a week in child support based upon the child support guidelines. The family court further reserved the right to review Husband's child support obligation upon him securing employment. The court held the issue of attorney's fees and costs in abeyance, pending counsels' arguments on the matter and the court's review of settlement negotiations.

Husband filed a motion to reconsider, challenging the court's final decree in several aspects, including the family court's failure to grant him joint custody, or alternatively, increased visitation, failure to consider the full testimony of Dr. Touma based upon a finding Dr. Touma was unaware of certain matters, and imputation of a monthly income of $2,900.00 to him. Following a hearing on the matter, the family court partially granted Husband's motion, modifying certain aspects of its order not in issue on appeal, but declining to do so in the above matters. Thereafter, the family court considered written argument of both parties, and declined to award attorney fees to either, finding Husband and Wife were responsible for their respective attorney's fees.

ISSUES

1. Whether the family court erred in awarding child support based upon an imputed gross monthly income to Husband of $2,900.00 because there was insufficient evidence to support this amount.

[400 S.C. 361]2. Whether the family court erred in failing to award the parties joint custody of Son or, in the alternative, to award Husband additional visitation with Son.

3. Whether the family court erred in finding Dr. Samer Touma was unaware of certain issues regarding Husband, because the clear and uncontradicted testimony of Dr. Touma was that he was aware of the issues.

4. Whether the family court erred in requiring each party to pay his or her own attorney's fees, because the evidence shows Wife should be required to contribute to Husband's attorney's fees.

STANDARD OF REVIEW

In appeals from the family court, an appellate court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). “De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the trial court's findings.” Lewis v. Lewis, 392 S.C. 381, 390, 709 S.E.2d 650, 654–55 (2011). However, while this court has the authority to find facts in accordance with its own view of the preponderance of the evidence, “we recognize the superior position of the family court judge in making credibility determinations.” Id. at 392, 709 S.E.2d at 655. Further, de novo review does not relieve an appellant of his burden to “demonstrate error in the family court's findings of fact.” Id. “Consequently, the family court's factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court.” Id. (alteration in original) (internal citation and quotation marks omitted).

LAW/ANALYSISA. Imputed Income

Husband first contends the family court erred and abused its discretion in awarding child support based upon an imputed gross monthly income of $2,900.00, because there was insufficient evidence to support the imputation of income and the corresponding child support award. We agree.

Our law is clear that, in determining child support or alimony obligations, the family court has the discretion to impute income to a party who is voluntarily unemployed or underemployed.

If the obligor spouse has the ability to earn more income than he is in fact earning, the court may impute income according to what he could earn by using his or her best efforts to gain employment equal to his capabilities, and an award of [support] based on such imputation may be a proper exercise of discretion even if it exhausts the obligor spouse's actual income.

Dixon v. Dixon, 334 S.C. 222, 240, 512 S.E.2d 539, 548 (Ct.App.1999) (internal citation and quotation marks omitted); see also Patel v. Patel, 359 S.C. 515, 532, 599 S.E.2d 114, 123 (2004)( Patel II );Blackwell v. Fulgum, 375 S.C. 337, 347, 652 S.E.2d 427, 432 (Ct.App.2007) (noting it is appropriate to impute income to a party who is voluntarily unemployed or underemployed when determining child support obligations). “Whether termed voluntary underemployment, imputation of income, or the failure to reach earning potential, the case law is clear that when a payor spouse seeks to reduce support obligations based on his diminished income, a court should consider the payor spouse's earning capacity.” Marchant v. Marchant, 390 S.C. 1, 9, 699 S.E.2d 708, 712 (Ct.App.2010) (quoting Gartside v. Gartside, 383 S.C. 35, 44, 677 S.E.2d 621, 626 (Ct.App.2009)).

In Sanderson v. Sanderson, 391 S.C. 249, 253–54, 705 S.E.2d 65, 66–67 (Ct.App.2010), this court addressed a similar situation wherein the family court had imputed an annual income of $64,000 to the husband after he lost his position earning $95,000, as a result of corporate downsizing. There, we noted the South Carolina Child Support Guidelines specifically provide that “[i]n order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.” Id. at 256, 705 S.E.2d at 68;S.C.Code Ann. Regs. 114–4720(A)(5)(B) (Supp.2011). We further acknowledged in Sanderson, while a bad faith motivation is not required for a finding of voluntary underemployment, “the motivation behind any purported reduction in income or earning capacity should be considered in determining whether a parent is voluntarily underemployed.” Id. Additionally, “[w]hen actual income versus earning capacity is at issue, courts should closely examine...