McKinney v. Pedery, Appellate Case No. 2013–002601.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtChief Justice TOAL.
Citation413 S.C. 475,776 S.E.2d 566
PartiesBonnie L. McKINNEY, f/k/a Bonnie L. Pedery, Respondent, v. Frank J. PEDERY, Petitioner.
Decision Date26 August 2015
Docket NumberNo. 27567.,Appellate Case No. 2013–002601.

413 S.C. 475
776 S.E.2d 566

Bonnie L. McKINNEY, f/k/a Bonnie L. Pedery, Respondent
v.
Frank J. PEDERY, Petitioner.

Appellate Case No. 2013–002601.
No. 27567.

Supreme Court of South Carolina.

Heard May 7, 2015.
Decided Aug. 26, 2015.


776 S.E.2d 568

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.

Opinion

Chief Justice TOAL.

413 S.C. 478

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

413 S.C. 479

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.

413 S.C. 480

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

776 S.E.2d 569

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
413 S.C. 481
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 ?

776 S.E.2d 570
413 S.C. 482
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...

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10 practice notes
  • Thornton v. Thornton, Appellate Case No. 2016-001177
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2019
    ...attorney's fees, the family court must make specific findings of fact on the record for each of the required factors. McKinney v. Pedery , 413 S.C. 475, 489, 776 S.E.2d 566, 574 (2015). "When a party's uncooperative conduct in discovery and litigation increases the amount of the other party......
  • Landry v. Landry, Appellate Case No. 2019-000843
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 2020
    ...the ruling is controlled by an error of law, or when based on factual conclusions, is without evidentiary support. McKinney v. Pedery , 413 S.C. 475, 482, 776 S.E.2d 566, 570 (2015).DISCUSSIONHusband contends both the family court and the court of appeals erred in rejecting Rule 60(a) as a ......
  • Stoney v. SR, Appellate Case No. 2016-002076
    • United States
    • United States State Supreme Court of South Carolina
    • December 20, 2017
    ...grant a motion made pursuant to Rule 60(b), SCRCP is within the sound discretion of the trial judge.").3 See, e.g., McKinney v. Pedery , 413 S.C. 475, 776 S.E.2d 566 (2015) ; Crossland v. Crossland , 408 S.C. 443, 759 S.E.2d 419 (2014) ; Wilburn v. Wilburn , 403 S.C. 372, 743 S.E.2d 734 (20......
  • Moore v. Moore, Appellate Case No. 2016-000531
    • United States
    • Court of Appeals of South Carolina
    • April 3, 2019
    ...of the evidence that a supported spouse continuously resided with a paramour for at least 90 consecutive days. See McKinney v. Pedery , 413 S.C. 475, 485, 776 S.E.2d 566, 571 (2015) ("[B]ecause [wife] sought termination of her alimony obligation to [husband], she bore the burden to show by ......
  • Request a trial to view additional results
10 cases
  • Thornton v. Thornton, Appellate Case No. 2016-001177
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2019
    ...attorney's fees, the family court must make specific findings of fact on the record for each of the required factors. McKinney v. Pedery , 413 S.C. 475, 489, 776 S.E.2d 566, 574 (2015). "When a party's uncooperative conduct in discovery and litigation increases the amount of the other party......
  • Landry v. Landry, Appellate Case No. 2019-000843
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 2020
    ...the ruling is controlled by an error of law, or when based on factual conclusions, is without evidentiary support. McKinney v. Pedery , 413 S.C. 475, 482, 776 S.E.2d 566, 570 (2015).DISCUSSIONHusband contends both the family court and the court of appeals erred in rejecting Rule 60(a) as a ......
  • Stoney v. SR, Appellate Case No. 2016-002076
    • United States
    • United States State Supreme Court of South Carolina
    • December 20, 2017
    ...grant a motion made pursuant to Rule 60(b), SCRCP is within the sound discretion of the trial judge.").3 See, e.g., McKinney v. Pedery , 413 S.C. 475, 776 S.E.2d 566 (2015) ; Crossland v. Crossland , 408 S.C. 443, 759 S.E.2d 419 (2014) ; Wilburn v. Wilburn , 403 S.C. 372, 743 S.E.2d 734 (20......
  • Moore v. Moore, Appellate Case No. 2016-000531
    • United States
    • Court of Appeals of South Carolina
    • April 3, 2019
    ...of the evidence that a supported spouse continuously resided with a paramour for at least 90 consecutive days. See McKinney v. Pedery , 413 S.C. 475, 485, 776 S.E.2d 566, 571 (2015) ("[B]ecause [wife] sought termination of her alimony obligation to [husband], she bore the burden to show by ......
  • Request a trial to view additional results

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