McKinney v. Pedery

Decision Date26 August 2015
Docket NumberNo. 27567.,Appellate Case No. 2013–002601.,27567.
CourtSouth Carolina Supreme Court
PartiesBonnie L. McKINNEY, f/k/a Bonnie L. Pedery, Respondent, v. Frank J. PEDERY, Petitioner.

Kenneth C. Porter, of Porter & Rosenfeld, of Greenville, for petitioner.

Kim R. Varner, of Varner & Segura, and J. Falkner Wilkes, both of Greenville, for respondent.


Chief Justice TOAL.

Petitioner Frank J. Pedery argues the court of appeals erred in affirming the family court's termination of Respondent Bonnie McKinney's alimony obligation to him and the family court's failure to award Pedery attorney's fees. We reverse and remand.

Facts/Procedural Background

Pedery and McKinney divorced on May 3, 2006. In the family court's final order granting the divorce, the family court approved an agreement entered into by Pedery and McKinney, wherein McKinney agreed to pay Pedery permanent periodic alimony of $1,500 per month. In June 2009, McKinney sought a reduction or termination of her alimony obligation based on Pedery's continued cohabitation with his paramour, Cynthia Hamby, and a substantial change of circumstances. See S.C.Code Ann. § 20–3–130(B)(1) (Supp.2012) (providing that periodic alimony terminates upon the “continued cohabitation of the supported spouse” and is “terminable and modifiable based upon changed circumstances occurring in the future”). According to McKinney, a decrease in her income and deterioration of her health constituted the substantial change in circumstances.

The family court held a hearing on May 11, 2011. At the hearing, McKinney called a private investigator, Tim Greaves, as a witness to testify in support of her allegation that Pedery was cohabitating with Hamby. Greaves testified that he monitored Pedery's house in Mauldin, South Carolina, daily from January until June, 2009. According to Greaves, during that time, Hamby typically stayed at Pedery's house from Wednesday afternoon until Monday morning of each week. Greaves testified that on Monday mornings, Hamby commuted to Duncan, South Carolina, where she worked as a nanny for her grandchildren until Wednesday afternoons.

Greaves testified that inside Pedery's house,1 Hamby's toiletries and “feminine items” such as curling irons occupied the bathroom, and the master bedroom closet held women's clothing.2 Further, Greaves observed Pedery and Hamby buying groceries together, and it appeared that Pedery paid for the groceries.

Pedery testified that he began a relationship with Hamby in 2007 or 2008. When Pedery met Hamby, she lived with her son in Duncan, and also worked there as a nanny for her grandchildren, as she still did at the time of the hearing. Pedery testified that Hamby began spending nights with him approximately six or eight months after they began seeing each other. According to Pedery, Hamby “lives” with her son, where she has a room of her own, and only “visits” Pedery at his house. Pedery stated that Hamby leaves her possessions in both places, and when she leaves Pedery's house to go to her son's house, she packs a “little overnight bag” containing underwear.

At the hearing, McKinney offered the testimony of her manager at work—Franklin Sharp, as well as that of an employee of a direct competitor—William Hall—to corroborate her claim that her alimony should be reduced or terminated as a result of her decrease in income. Hall, the direct competitor's employee, testified that beginning in 2008, the competition in their field of work—insuring trucks—increased, and forced businesses to lower insurance rates. Although Sharp did not testify as to McKinney's salary, he testified that because of the increase in competition, his own salary had decreased by fifty percent in the previous three or four years. McKinney testified that her income had decreased from $230,121 in 2007 to $119,605 in 2010. McKinney further stated that her health had declined since the divorce, and that she suffers from high blood pressure, diabetes, arthritis, osteoporosis, and lupus.

On August 26, 2011, the family court issued an order terminating McKinney's alimony obligation based on its finding that Pedery “continuously resided with [Hamby] for not only in excess of ninety days but on a continuous basis for an extended period of time....” As for Hamby's absences from Pedery's house, the family court found that they “were a requirement of [her] job and that [Pedery] was not attempting to use them to circumvent the intent of the law....” Therefore, the family court found that “any absences from her residence is in the line of her job and do not constitute a stop of the residency....” Because McKinney prevailed, the family court found that neither party was entitled to attorney's fees.

The court of appeals affirmed the family court's order. McKinney v. Pedery, 406 S.C. 1, 12, 749 S.E.2d 119, 125 (Ct.App.2013). The court of appeals found that Pedery and Hamby “shared a home on a continuous and uninterrupted basis for substantially longer than ninety days,” and then held that “Hamby's departure was more akin to a temporary absence for out-of-town travel than it was to routine separation based on separate residences.” Id. at 8, 749 S.E.2d at 123. The court of appeals reasoned that

to conclude the parties did not continuously cohabitate for at least ninety consecutive days because of Hamby's routine travel to care for her grandchildren in Duncan would run afoul of the legislative intent underpinning this section. To interpret this section as Pedery advances would allow any break in the ninety days to defeat a continuous cohabitation argument, rendering this section virtually unenforceable. For example, any time a paramour and supported spouse are briefly away from each other, whether it be for an out-of-town work trip, an overnight hospital stay, or for a weekend vacation, the family court would be prohibited from applying this section. We do not believe the Legislature intended for such a result.

Id. at 10–11, 749 S.E.2d at 124 (internal citations omitted).

Therefore, the court found that Pedery and Hamby's living arrangements amounted to “continued cohabitation” under section 20–3–130(B) of the South Carolina Code. Id. at 11, 749 S.E.2d at 125. Further, the court of appeals affirmed the family court's decision to deny Pedery's request for attorney's fees. Id. at 11–12, 749 S.E.2d at 125.

Judge Konduros dissented on the ground that the statutory requirements of section 20–3–130(B) were not satisfied under the plain language of the statute. Id. at 12–13, 749 S.E.2d at 125–26 (Konduros, J., dissenting). Judge Konduros pointed out that Hamby lived with her son prior to becoming romantically involved with Pedery and still had her own room there, and she spent approximately four to five nights per week at Pedery's house—a course of conduct which was a regular occurrence every week.Id. (Konduros, J., dissenting). In Judge Konduros's view, this evidence did not support a finding that Pedery and Hamby continually resided together for at least ninety consecutive days or that they separated to avoid the termination of his alimony. Id. at 13, 749 S.E.2d at 126 (Konduros, J., dissenting).

This Court granted Pedery's petition for writ of certiorari to review the court of appeals' opinion pursuant to Rule 242, SCACR.

Issues Presented
I. Whether the court of appeals erred in affirming the family court's termination of Pedery's alimony based on its finding that Pedery continuously cohabitated with his paramour under section 20–3–130(B) of the South Carolina Code ?
II. Whether the court of appeals erred in affirming the family court's decision to decline to award Pedery attorney's fees?
Standard of Review

“In appeals from the family court, this Court reviews factual and legal issues de novo.” Simmons v. Simmons, 392 S.C. 412, 414–15, 709 S.E.2d 666, 667 (2011). To that end, an appellate court may find facts in accordance with its own view of the preponderance of the evidence. Dickert v. Dickert, 387 S.C. 1, 5–6, 691 S.E.2d 448, 450 (2010). ‘However, this broad scope of review does not require this Court to disregard the findings of the family court,’ as the family court “was in a superior position to make credibility determinations.” Lewis v. Lewis, 392 S.C. 381, 384–85, 709 S.E.2d 650, 651–52 (2011) (quoting Eason v. Eason, 384 S.C. 473, 479, 682 S.E.2d 804, 807 (2009) ).

“Questions 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.” Eason, 384 S.C. at 479, 682 S.E.2d at 807 (citing Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.App.2004) ). An abuse of discretion occurs when the decision is controlled by some error of law or is based on findings of fact that are without evidentiary support. Id.

I. Section 20–3–130(B)(1)

Where the family court has previously awarded periodic alimony, the periodic alimony terminates “on the remarriage or continued cohabitation of the supported spouse” and is “terminable and modifiable based upon changed circumstances occurring in the future.” S.C.Code Ann. § 20–3–130(B)(1). The family court may terminate or modify the award based upon changed circumstances when there is a substantial or material change in circumstances, such as changes in a party's health or income. S.C.Code Ann. § 20–3–130(B)(1) ; Thornton v. Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997).

According to McKinney, her periodic alimony obligation to Pedery should be terminated based upon both Pedery's continued cohabitation with Hamby as well as a change in McKinney's circumstances.

a. Continuous Cohabitation
i. Ninety or More Consecutive Days

Pedery argues that McKinney failed to meet her burden of proof with regard to her argument that Pedery continuously cohabitated with Hamby for purposes of section 20–3–130(B). We agree.

Under section 20–3–130(B)(1) of the South Carolina Code, periodic alimony terminates on the ...

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