Marchant v. Marchant

• Decision Date: 01 September 2010
• Docket Number: No. 4734.,4734.
• Citation: 699 S.E.2d 708,390 S.C. 1
• Court: South Carolina Court of Appeals
• Parties: Jill A. MARCHANT, Appellant,v.Leslie C. MARCHANT, Respondent.

390 S.C. 1

699 S.E.2d 708

Jill A. MARCHANT, Appellant,v.Leslie C. MARCHANT, Respondent.

No. 4734.

Court of Appeals of South Carolina.

Heard May 20, 2010.

Decided Sept. 1, 2010.

COPYRIGHT MATERIAL OMITTED

Katherine Carruth Goode, of Winnsboro; Sheila McNair Robinson, of West Columbia, for Appellant.

Jean Perrin Derrick, of Lexington, for Respondent.

KONDUROS, J.

Jill Marchant (Wife) appeals the family court's failure to impute income to Leslie Marchant (Husband) in this divorce action based on theories of voluntary underemployment and the receipt of loans from his employer. Wife also contends the provision of a vehicle and residence to Husband by his employer constituted income. Additionally, Wife appeals the family court's imputation of income to her and the resulting impact of these decisions on the family court's award of alimony and child support. She also appeals the amount of the family court's attorney's fees award. We affirm as modified.

FACTS

Husband and Wife married in 1993. Approximately six weeks into the marriage, Wife discovered Husband had been unfaithful to her in the months immediately preceding their wedding. The couple stayed together and their first child was born in 1994. The parties did not have sexual relations with one another from that time until 2001 when, after Husband's admitted extramarital affair, Wife agreed to have a sexual relationship with him again. The parties' second child was born in 2002, and at that time Wife maintains she was willing to participate in a sexual relationship with Husband, but Husband rejected her. ¹ Wife eventually moved into another bedroom and testified this arrangement allowed her to better care for their youngest child, who suffered from esophageal reflux, without disturbing Husband's rest.

In 2004, Wife suspected Husband was having an ongoing adulterous relationship, and a private investigator confirmed her suspicions. Wife filed for divorce. By agreement she had custody of both children, and Husband paid her $662.50 per month in child support and $662.50 per month in alimony.² The older child eventually went to live with Husband by agreement of the parties, and Husband's child support obligation was reduced to $275 per month.

At the time of trial, the parties had resolved many issues but asked the family court to determine alimony and child support. Wife alleged Husband received considerably more income than he reported on his disclosure statement. She maintained Husband had received $27,000 from his employer and intimated he was underemployed. Husband claimed these amounts were loans from his employer that he would have to pay back. Additionally, Wife contended Husband should be charged with income as a result of his employer providing him a truck and a place to live. Husband testified the truck was the property of his employer but his employer did allow him to use it personally as well because his former truck was unsafe for transporting his children. Husband valued his use of the truck at $300 per month. Husband further indicated the company was paying rent temporarily on a property located beside the business and allowing him and the oldest child to live there in exchange for making improvements to the property.

Husband argued Wife was underemployed. Wife was not working at the time of the final hearing. She took the civil service exam after the parties separated, but did not pursue employment based on the exam. Wife earned a degree in journalism from the University of South Carolina in 1986 and obtained her teaching certificate shortly thereafter. However, Wife never used her teaching certificate and was primarily, by agreement of the parties, a stay-at-home mother. She did work intermittently for her father's law practice as a receptionist, in a daycare, and at the produce business Husband started with his cousin. Wife testified she had been taking prerequisite courses at an area college and would enter the two-year radiology program in the fall. According to Wife, she would be attending school full-time and students are discouraged from working outside of their studies and clinical work. The school would guarantee her placement, and her projected income would be somewhere between $30,000 and $40,000.

The family court did not impute income to Husband based on the loans from his employer and did not treat Husband's employer-provided residence or vehicle as income except to value the use of the company truck at $300 per month. Additionally, the family court imputed income to Wife in the amount of $1,732 per month. Based on these incomes, the family court ordered Husband to pay Wife $375 in alimony and $108 in child support per month. The family court also ordered Husband to pay $2,000 of Wife's $12,000 attorney's fees. This appeal followed.

STANDARD OF REVIEW

While the appellate court may take its own view of the preponderance of the evidence in family law issues, “[q]uestions concerning alimony rest within the sound discretion of the family court judge whose conclusion will not be disturbed absent a showing of abuse of discretion.” Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.App.2004). Questions concerning child support are likewise ordinarily committed to the discretion of the family court. Blackwell v. Fulgum, 375 S.C. 337, 347, 652 S.E.2d 427, 432 (Ct.App.2007). The family court also has discretion in determining attorney's fees to be awarded. Eason v. Eason, 384 S.C. 473, 481, 682 S.E.2d 804, 808 (2009).

I. Husband's Income

Wife claims the family court erred in failing to find Husband was voluntarily underemployed and impute income to him based upon loans, a truck, and a residence provided by his employer. We disagree.

While Wife alluded to the fact Husband was capable of earning more, she did not request a finding that Husband was voluntarily underemployed. The testimony regarding his past income was elicited primarily to aid in establishing the parties' standard of living during the marriage. Furthermore, the family court did not rule on this point. Consequently, Wife was required to file a Rule 59(e), SCRCP, motion to seek a ruling on this point, and she failed to do so. A point not raised to and ruled upon by the family court will not be considered on appeal. Smith v. Smith, 386 S.C. 251, 273, 687 S.E.2d 720, 732 (Ct.App.2009); Feldman v. Feldman, 380 S.C. 538, 545, 670 S.E.2d 669, 672 (Ct.App.2008) (finding issue of whether Wife's and Boyfriend's relationship was tantamount to marriage not preserved for appellate review when issue was not ruled upon and Husband failed to make a Rule 59(e) SCRCP, motion).

Wife also claims the family court erred in not including $27,000 from Husband's company and the use of a company car and home in Husband's income. Husband admitted to receiving pay advances or loans from his employer to aid in his paying his child support and alimony obligations during the pendente lite stage of this proceeding. He testified there were no formal documents associated with the loans but he was nevertheless obligated to repay them based on a handshake deal with his partners. The employer's records show when advances were made and in what amount. The family court believed Husband's explanation for the additional funds, and we give deference to its findings on credibility. See Terwilliger v. Terwilliger, 298 S.C. 144, 147, 378 S.E.2d 609, 611 (Ct.App.1989) (“Resolving questions of credibility is a function of the family court judge who heard the testimony.”). Under these circumstances, we conclude the family court did not abuse its discretion in failing to impute the loans to Husband as income.

With respect to the allowance for a company truck, Husband declared a benefit in the amount of $300 per month for use of the vehicle. Declaring the use of the company truck as income is appropriate in accordance with the South Carolina Child Support Guidelines (the Guidelines). “[T]he court should count as income expense reimbursements or in-kind payments received by a parent from self-employment or operation of a business if they are significant and reduce personal living expenses, such as a company car, free housing, or reimbursed meals.” Mobley v. Mobley, 309 S.C. 134, 139, 420 S.E.2d 506, 510 (Ct.App.1992) (quoting S.C.Code Ann. Regs. 114-4720(A)(3)(C) (Supp.2009)).

The payment for the vehicle is $596 per month, with the business paying property taxes and insurance on the vehicle as well. According to Husband's testimony, the truck was not his property and was not solely for his use. However, it appears the truck was primarily for Husband's business and personal use. Nevertheless, at the conclusion of the term of the loan for the truck, the truck will belong to the company, not Husband. Additionally, while Husband was the primary user of the truck, the truck was occasionally utilized by the other members of the company. Consequently, we find support in the record for declaring a benefit to Husband less than the full amount of the truck's monthly payment and therefore discern no abuse of discretion.

Concerning his employer-provided housing, Husband's testimony revealed he was occupying a rental property being paid for by the company and was making improvements to the property while living there for six months.³ The property was located next door to the business and according to Husband would eventually be purchased by the company. Husband also testified he would start making monthly rental payments of $800 the following month.

While this arrangement is somewhat suspect, questions of credibility are left to the discretion of the family court. See Terwilliger, 298 S.C. at 147, 378 S.E.2d at 611. If this situation were to continue, an analysis of whether it constitutes in-kind income would be required. However, because Husband testified he would begin paying rent, we again discern no abuse of discretion in the family court's decision not to impute the provision of the residence as income.

II. Wife's Income

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