Miller v. Miller, 23076

Citation299 S.C. 307,384 S.E.2d 715
Decision Date20 March 1989
Docket NumberNo. 23076,23076
CourtUnited States State Supreme Court of South Carolina
PartiesMaria MILLER, Appellant, v. Christopher MILLER, Respondent. . Heard

Robert T. Williams of Williams & Brink, Lexington, for appellant.

Jean P. Derrick of Rogers, Duncan, Fullwood & Derrick, Lexington, for respondent.

TOAL, Justice:

Mrs. Miller appeals a family court decree which terminated alimony, modified child support and visitation, and required Mrs. Miller to assist in transporting the children for visitation. We affirm in part and reverse in part.

The Millers were divorced in Virginia in 1985. The Virginia court awarded custody of the couple's two young children to Mrs. Miller, and required Mr. Miller to provide support for the children in the amount of $300.00 per month per child and alimony to Mrs. Miller in the amount of $300.00 per month. Mr. Miller had been employed earning $50,000 per year until approximately one month before the final hearing in Virginia, at which time he was earning approximately $1,600 per month, or $19,200 per year.

The Virginia court had before it both the financial information concerning Mr. Miller's prior higher paying job and the financial information concerning his more recently acquired job, in determining the amount of child support Mr. Miller was required to pay.

Mr. Miller moved to South Carolina following the parties' divorce. Mr. Miller failed to return the children following his 1987 summer visitation. Mrs. Miller petitioned the South Carolina Family Court for their return, and Mr. Miller answered requesting a reduction in child support and other relief. The Family Court ordered the children returned to Mrs. Miller by Order dated September 4, 1987. The remaining issues were heard February 3, 1988, and decided by Order dated February 19, 1988. It is the February Order which is the subject of this appeal. Mr. Miller has continued to be unable to obtain employment compensating him at levels commensurate with his earlier employment. The financial declarations submitted below showed Mr. Miller's income was still approximately $1,600 per month, but his monthly expenses had been significantly reduced since the Virginia decree. Despite his improved financial situation, Mr. Miller had fallen behind in his support obligations.

Mrs. Miller went to live with her parents in Pennsylvania following the divorce. The financial declarations submitted below showed Mrs. Miller's monthly income had improved slightly and her expenses had remained fairly stable since the original award.

The Family Court judge relieved Mr. Miller of the obligation to pay alimony, reduced Mr. Miller's child support obligation from $600 per month to $358 per month, and required Mrs. Miller to come to South Carolina, or make arrangements, to transport the children home following their summer visitation with Mr. Miller. Mrs. Miller appeals only the issues of the reduced child support, and the requirement that she provide transportation to the children following the summer visitation; she agreed below to a termination of alimony.

A family court has authority to modify the amount of a child support award upon a showing of a substantial or material change of circumstances. Thornton v. Thornton, 294 S.C. 512, 366 S.E.2d 37 (Ct.App.1988); Calvert v. Calvert, 287 S.C. 130, 336 S.E.2d 884 (Ct.App.1985); S.C.Code Ann. § 20-3-160. The burden is upon the party seeking the change to prove the changes in circumstances warranting a modification. See, Garris v. Cook, 278 S.C. 622, 300 S.E.2d 483 (1983) (failure to prove changed circumstances supports the denial of request for increased support).

A substantial or material change in circumstances might result from changes in the needs of the children or the financial abilities of the supporting parent to pay among other reasons. Smith v. Smith, 275 S.C. 494, 272 S.E.2d 797 (1980). Generally, however, changes in circumstances within the contemplation of the parties at the time the initial decree was entered do not provide a basis for modifying a child support award. Calvert v. Calvert, 287 S.C. 130, 336 S.E.2d 884 (Ct.App.1985); Nelson v. Merritt, 281 S.C. 126, 314 S.E.2d 840 (Ct.App.1984).

A downward modification in child support based upon a decrease in the noncustodial parent's income is not warranted absent a strong showing by the party seeking the change that he is no longer in a condition to make the support payments prescribed by an earlier Family Court order. Calvert v. Calvert, 287 S.C. 130, 336 S.E.2d 884 (Ct.App.1985).

In appeals from the Family Court, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Clinkscales v. Clinkscales, 275 S.C. 308, 270 S.E.2d 715 (1980).

The Family Court found there had been a substantial and material change in circumstances in that Mr. Miller's income dramatically decreased, while Mrs. Miller's income had increased and her expenses had decreased. The finding with respect to the decrease in Mr. Miller's income can be supported only if this Court presumes the Virginia court based its decision solely on the information regarding Mr. Miller's higher paying position and did not consider information regarding the lower paying employment. Clearly, the Virginia court had financial declarations before it which correctly showed Mr. Miller's financial situation at that time. This Court will not base a finding of changed circumstances upon the supposition the Virginia court did not consider all the information before it in reaching its decision, nor can this Court conclude Mr. Miller's worsened financial condition was not within the contemplation of the parties at the time of the Virginia decree.

The very modest improvements attained by both parties since the Virginia award do not constitute a substantial or material change in circumstances justifying a modification in the child support award. Mr. Miller's financial declaration does not show he is incapable of paying the support ordered previously. In fact, in view of the $300 per month reduction in alimony, he is better able to make these payments. As there was no substantial or material change in circumstances, the family court judge erred in modifying the prior child support award.

Even if we had found a material and substantial change in circumstances justifying a modification in the child support award, the family court judge abused his discretion in the manner in which he modified the award.

Once a substantial and material change in circumstances is found, the court must review the facts and circumstances in order to determine an appropriate amount of child support. In modifying child support, the court should be guided by the same principles which guide the court in making its initial award. The factors to be considered by the court in establishing the amount of child support obligations are both parents' income, ability to pay, education, expenses, and assets and the facts and circumstances surrounding each case. Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706 (1984). The court is to award support in an amount sufficient to provide for the needs of the children and to maintain the children at the standard of living they would have been provided but for the divorce. The award should be an amount the parent can pay and still meet his or her own needs. Smith v. Delaney, 286 S.C. 583, 334 S.E.2d 821 (Ct.App.1985).

The Family Court judge did not address any of these factors beyond the income and expenses of the parents. Instead, the family cour...

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