McLean v. McLean, 21044
| Decision Date | 28 August 1979 |
| Docket Number | No. 21044,21044 |
| Citation | 257 S.E.2d 751,273 S.C. 571 |
| Court | South Carolina Supreme Court |
| Parties | William Henry McLEAN, Respondent, v. Belinda Elaine McLEAN, Appellant. |
Richard G. Dusenbury, Florence, for appellant.
C. Weston Houck, Florence, for respondent.
Respondent (husband) commenced this action for divorce on the ground of adultery. Appellant (wife) counterclaimed for a divorce from respondent on the grounds of adultery and habitual drunkenness. She also sought custody of the child of the parties, support and maintenance for herself and the child, and attorney's fees. Each party denied the material allegations of the others' pleading. The court below granted respondent a divorce on the ground of adultery, awarded custody of the child to the appellant, and set $41.20 per month as the amount of support payments respondent would make for the benefit of his child. The court denied appellant's prayer for divorce, support for herself, and attorney's fees.
This appeal is confined to the assertion of error in the amount of child support awarded, particularly in that the trial judge did not consider a trust of which the respondent is the beneficiary as an asset in fixing the award; and, in the failure of the trial court to award attorney's fees to the appellant. We reverse and remand.
The respective ages of the husband and wife are thirty-five and twenty-nine, with the child being four years of age. The parties were married in 1971 and suit was instituted for divorce in 1978. The marriage was tempestuous for the most part with several temporary separations occurring during the seven years of marriage. The respondent was employed at the time of the hearing with the State Highway Department with net earnings of approximately $85 per week. During the marriage, this family lived under poverty conditions, as illustrated by the fact that one of the places in which they lived is described as having no running water except in the bathroom, no heat, and rented for $40 per month.
The trial judge based his award of $41.20 per month child support solely on the Highway Department earnings of respondent. The record reflects that respondent has a child by a previous marriage to whom he is likewise paying $41.20 a month as support.
The principal issue in this case is whether the trial judge erred in not considering a trust fund of which respondent is the beneficiary as an asset in determining support for the child. In his decree, after taking notice of the existence of the trust fund, which trust agreement was placed into the record as an exhibit, the trial judge states, "At the present, the only income that this court is going to consider in determining support and maintenance is petitioner's salary at the South Carolina Highway Department."
The Inter vivos trust in question was created by respondent, William H. McLean, on August 6, 1970, with the older brother of the respondent, A. F. McLean, Jr., being named as trustee and the corpus of the trust consisting of numerous parcels of land in the Ocean Drive area of Horry County. The trustee, who is an experienced and successful business man, testified that he estimated the value of the corpus of the trust at $700,000. Incredible as it seems, considering the magnitude of the corpus, the trustee testified that there had been "very little or no income" earned by the trust in the eight years of its existence.
The trustee has not been made a party to this suit, and for such reason we are of the opinion that he cannot be compelled in the present action to pay sums from the trust fund for the support of the beneficiary's child. Collins v. Collins, 239 S.C. 170, 122 S.E.2d 1 (1961). Accordingly, we deem it inappropriate in this action to analyze in depth or definitively rule on the accessibility of the trust funds for child support. However, we are confronted with the question in this case of whether the trial judge erred in refusing to consider the trust funds as assets of respondent in determining the amount of child support, the answer to which necessarily involves a consideration of the nature of such fund. As stated in Collins, also a divorce case, "The cause being in equity, the court may determine incidental questions, afford complete justice, and prevent multiplicity of litigation." 239 S.C. at 181, 122 S.E.2d at 6 (citations omitted).
The trust in question was created by respondent from his own...
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In re McLean, Civ. A. No. 83-1450-15
...trust. Even the classic spendthrift trust, however, may be garnished to satisfy family support obligations. See McLean v. McLean, 273 S.C. 571, 257 S.E.2d 751 (1979). 12 See 11 U.S.C. § 13 See 11 U.S.C. § 522(d)(10)(E)(i-iii). 14 See supra note 6. A trust is clearly an "entity" which is sub......
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Germann v. New York Life Ins. Co.
...or alienating, either voluntarily or involuntarily, his interest in the trust is a spendthrift trust. See McLean v. McLean, 273 S.C. 571, 257 S.E.2d 751 (1979); Albergotti v. Summers, 203 S.C. 137, 26 S.E.2d 395 (1943); Restatement (Second) of Trusts § 152(2) (1959); cf. In re Vought's Esta......
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Miller v. Miller, 22047
...adultery. While adultery is not necessarily a bar to an award of attorney's fees as it is to an award of alimony, see McLean v. McLean, 273 S.C. 571, 257 S.E.2d 751 (1979), appellant's bare assertion that she has no funds with which to pay adequate attorney's fees is insufficient to justify......
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Shealy v. Shealy, 0089
...determine incidental questions, afford complete justice and prevent multiplicity of litigation in divorce actions. McLean v. McLean, 273 S.C. 571, 257 S.E.2d 751 (1979). ...