McKinney v. Pedery, Appellate Case No. 2011–200487.

• Court: Court of Appeals of South Carolina
• Writing for the Court: WILLIAMS
• Citation: 406 S.C. 1,749 S.E.2d 119
• Parties: Bonnie L. McKINNEY, f/k/a Bonnie L. Pedery, Respondent, v. Frank J. PEDERY, Appellant.
• Decision Date: 30 October 2013
• Docket Number: No. 5165.,Appellate Case No. 2011–200487.

406 S.C. 1
749 S.E.2d 119

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

Appellate Case No. 2011–200487.
No. 5165.

Court of Appeals of South Carolina.

Heard May 9, 2013.
Decided Aug. 14, 2013.
Rehearing Denied Oct. 30, 2013.

[749 S.E.2d 120]

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

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

WILLIAMS, J.

[406 S.C. 3]In this appeal from the family court, Frank Pedery (Husband) claims the family court improperly terminated Bonnie McKinney's (Wife) requirement to pay Husband permanent periodic alimony when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code (Supp.2012). In addition, Husband contends the family court erred in failing to award Husband attorney's fees. We affirm.

FACTS

Husband and Wife divorced on May 3, 2006. In the family court's final order, it approved an agreement entered into by Husband and Wife, wherein Wife agreed to pay Husband $1,500 per month in permanent periodic alimony. Three years later, Wife sought a modification or termination of her alimony obligation based on a substantial change of circumstances, which included the following: (1) a decrease in Wife's income by 40%; (2) a deterioration in Wife's health; (3) Husband's continued cohabitation with his paramour; and (4) an increase in Husband's income by virtue of Husband's live-in paramour.

At the hearing on May 11, 2011, Wife called several witnesses to testify on her behalf. Tim Greaves, a licensed private investigator, testified in support of Wife's allegations that Husband was cohabitating with his live-in paramour, Cynthia Hamby. Greaves stated he monitored Husband's house twice a day for a period of seven months starting in January 2009. Greaves stated that Hamby lived in Husband's house. Greaves testified Hamby would commute to Duncan, South Carolina, every Monday morning and remain in Duncan [406 S.C. 4]until Wednesday afternoon, at which time she would

[749 S.E.2d 121]

return to Husband's house. While in Duncan, Hamby cared for her grandchildren.

Greaves also observed the interior of Husband's house during this time ¹ and stated Hamby's toiletries ² occupied the bathroom and her clothing filled a substantial portion of the master bedroom closet. Greaves observed the couple spending significant time together outside Husband's house and stated Husband would pay for their groceries. He also testified that Husband and Hamby listed their status as “engaged” on Facebook prior to Wife filing her complaint but immediately changed it to “in a relationship” once litigation commenced.

When questioned about Husband's living arrangements, Wife stated she received a phone call from Husband's mother in January 2009. At that point, Wife began driving by their former marital home almost every day. During this time, she observed Hamby's vehicle parked outside Husband's house Wednesday through Monday mornings, which prompted her to hire a private investigator.

In response, Husband testified Hamby only stayed overnight on the weekends but lived with her son in Duncan throughout the week. When questioned as to why Hamby's clothing and toiletries were throughout Husband's house, he stated Hamby kept articles in both his house and her son's house because she traveled back and forth between the two houses. Husband admitted Hamby currently had her own key to his house as well as a key to Husband's car but claimed he gave them to her when he was hospitalized earlier that year. He also stated that, in the past, he would purchase their groceries, but now Hamby helps buy groceries and contributes by driving Husband around and helping clean the house. Regarding the parties' finances, Husband stated he was unemployed and was currently receiving full-time disability. Without alimony, Husband testified he would be unable to support himself.

[406 S.C. 5]William Hall and Clarence Sharpe also corroborated Wife's claim that her alimony should be reduced or terminated. Hall, a direct competitor with Wife in the trucking insurance industry, stated that beginning in 2008, the competition to insure trucks increased dramatically because many trucking companies were going out of business, which forced those in their industry to cut insurance rates and become much less profitable. Sharpe, Wife's manager, testified similarly. Sharpe stated that the increase in competition caused insurance rates, and correspondingly, commissions for selling policies, to fall dramatically. In addition, their company decreased the premium payouts by 5% to employees. Although Sharpe did not testify to Wife's decrease in salary, he stated his salary had decreased by 50% in the previous three to four years on account of the economy.

In support of Wife's claims, she testified that at the time of the parties' divorce, she netted approximately $14,000 per month. However, her income started to decrease in 2007 because of the economic downturn. Specifically, Wife showed her yearly earnings were as follows: $230,121 in 2007; $191,700 in 2008; $128,871 in 2009; and $119,605 in 2010. Wife also stated that her health had declined since she and Husband divorced and highlighted her issues with diabetes, high blood pressure, arthritis, osteoporosis, and lupus.

After considering all the testimony and evidence, the family court issued an order on August 26, 2011. In its order, the family court recounted the witnesses' testimonies at the hearing and concluded Wife was entitled to have her alimony obligation terminated. Citing to section 20–3–130(B) of the South Carolina Code, the family court terminated alimony, finding Husband, as the supported spouse, resided with a romantic partner on a continuous basis for greater than ninety days. Despite Hamby's absence from their residence to care for her grandchildren, the family court determined Husband and Hamby continuously resided together for the requisite

[749 S.E.2d 122]

ninety days. Specifically, the family court found Hamby's trips to Duncan to care for her grandchildren were akin to out-of-town travel for work and could not be used to circumvent the intent of the statute. Although Husband claimed Hamby maintained a separate residence in Duncan, the family court noted she never removed any of her personal property [406 S.C. 6]from Husband's house. The family court also found Husband's testimony was not wholly credible. As a result of the foregoing, the family court terminated Husband's alimony and declined to award either party attorney's fees. This appeal followed.

STANDARD OF REVIEW

“The family court is a court of equity.” Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the 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 [family] court's findings.” Lewis, 392 S.C. at 390, 709 S.E.2d at 654–55. However, this broad standard of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of demonstrating error in the family court's findings of fact. Id. at 387–88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the family court unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by this court. See Lewis, 392 S.C. at 390, 709 S.E.2d at 654–55.

LAW/ANALYSIS1. Termination of Alimony

Husband first contends that the family court improperly terminated Wife's alimony obligation. We disagree.

a. Two–Issue Rule

In Wife's brief, she claims this court should affirm the family court's decision outright because Husband failed to appeal the family court's alternative rulings. Specifically, Wife contends the family court found Wife's decreased income and deteriorating health were substantial changes in circumstances [406 S.C. 7]sufficient to merit termination of Wife's alimony obligation pursuant to section 20–3–130(B)(1) of the South Carolina Code. We disagree.

Pursuant to the two-issue rule, “whe[n] a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become law of the case.” Jones...