Moore v. Moore
| Decision Date | 03 April 2019 |
| Docket Number | Opinion No. 5637,Appellate Case No. 2016-000531 |
| Court | South Carolina Court of Appeals |
| Parties | Lee B. MOORE, Respondent/Appellant, v. Debra L. MOORE, Appellant/Respondent. |
J. Falkner Wilkes, of Greenville, for Appellant/ Respondent.
Elizabeth Kimberly Berry, of Mooneyham Berry LLC, of Greenville, for Respondent/Appellant.
In this divorce action involving cross-appeals, Debra Moore (Wife) appeals, arguing the family court erred in reducing the amount of her alimony. Lee Moore (Husband) also appeals, arguing the family court erred in (1) not sufficiently reducing his alimony obligation and (2) finding Husband presented no evidence to support his claim that Wife cohabitated for 90 consecutive days with her boyfriend and any periods of separation were intended to circumvent the 90-day rule. Both parties argue the court erred in awarding attorney's fees. We reverse and remand.
Husband and Wife were divorced on July 15, 2003. Husband was ordered to pay Wife $3,800 per month in permanent periodic alimony. The parties agreed the amount of alimony was determined "by the circumstances of Husband having a gross yearly income of approximately $150,000" and allowed Wife "the right to earn up to $28,000 per year from employment without same being a change of circumstances as to her independent income status as affecting the issue of alimony."
On July 7, 2009, Husband filed an action seeking elimination or reduction of alimony. Husband stated he had changed jobs and was earning $130,000, which was comprised of a guaranteed base salary of $80,000 and commissions that were not guaranteed. Wife earned $20,789 in 2010. The parties reached an agreement to reduce Husband's alimony to $3,250 per month, beginning February 2011.
On July 29, 2013, Husband filed a second action seeking elimination or reduction of alimony. His request was based on a reduction in his income and Wife's continued cohabitation with a man she was romantically involved with. Husband asserted his current employment enabled him to earn up to $80,000 per year. Wife asserted Husband was changing jobs for lower pay to avoid paying his alimony obligations. After a temporary hearing, the court found there had been a substantial change in Husband's circumstances that warranted reducing his alimony payments to $2,000 per month, beginning August 2013. A hearing was held April 1-2 and June 17, 2015. The court issued its final order on September 22, 2015. The court declined to terminate Husband's alimony obligation, but it reduced Husband's alimony obligation to $2,275. The court also ordered Husband to pay $10,000 of Wife's attorney's fees.
In October 2015, Wife and Husband filed separate motions to alter or amend the September 22, 2015 judgment. A hearing on the motions was held on November 30, 2015. The court issued its order on January 20, 2016, amending the September 22, 2015 order. In its order, the court further reduced Husband's alimony obligation to $1,800 per month. On February 9, 2016, the court issued a corrective order regarding the January 20, 2016 order. These appeals followed.
On appeal from the family court, this court reviews factual and legal issues de novo. Stoney v. Stoney , 422 S.C. 593, 594, 813 S.E.2d 486, 486 (2018) ; Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Stoney , 422 S.C. at 595, 813 S.E.2d at 487 ; Lewis , 392 S.C. at 384-85, 709 S.E.2d at 651-52. "[D]e novo standard of review does not relieve an appellant from demonstrating error in the [family] court's findings of fact." Lewis , 392 S.C. at 385, 709 S.E.2d at 652 (italics omitted). Thus, "the family court's factual findings will be affirmed unless [the] ‘appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court.’ " Id . at 392, 709 S.E.2d at 655 (quoting Finley v. Cartwright , 55 S.C. 198, 202, 33 S.E. 359, 360-61 (1899) ).
Husband argues the family court erred in (1) not sufficiently reducing his alimony obligation and (2) finding Husband presented no evidence to support his claim that Wife cohabitated for 90 consecutive days with her boyfriend and any periods of separation were intended to circumvent the 90-day rule. We agree.
"Alimony is a substitute for the support normally incidental to the marital relationship." Crossland v. Crossland , 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014). "Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage." Id. (quoting Allen v. Allen , 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001) ).
South Carolina Code section 20-3-130(B)(1) (2014) provides that alimony terminates "on the remarriage or continued cohabitation of the supported spouse." " ‘[C]ontinued cohabitation’ means the supported spouse resides with another person in a romantic relationship for a period of [90] or more consecutive days." S.C. Code Ann. § 20-3-130(B) (2014). Our courts have determined that a supporting spouse must prove by a preponderance 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) (); Strickland v. Strickland , 375 S.C. 76, 89, 650 S.E.2d 465, 472 (2007) (). "The family court may also find ‘that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than [90] days and the two periodically separate in order to circumvent the [90]-day requirement.’ "
McKinney , 413 S.C. at 487, 776 S.E.2d at 572-73 (quoting S.C. Code Ann. § 20-3-130(B) (2014) ).
Husband asserts the family court correctly determined there was a substantial change in his circumstances so that a modification of his alimony was necessary and that his changes in jobs and income were not purposefully intended to lower his alimony. However, he argues once the court found he had proven a substantial change in circumstances, the court should have imputed income to Wife when she had no legitimate basis for her not making efforts to become financially self-supporting since the parties' divorce and erred in imputing $90,000 income to Husband when he was making $60,000 at the time of the hearing.
Husband also asserts Wife lived with her boyfriend, Scott Erickson, but they separated before 90 days to avoid violating the statute. During the April 1, 2015 hearing, the parties' daughter, Stephanie Brown, testified she thought Wife lived with Erickson because when she went to Wife's house, there was furniture that belonged to Erickson, a different television, his clothes and shoes were in a closet upstairs, a lot of Erickson's other belongings were in the house, he sometimes parked his car in her garage with the garage door closed, and Wife and Erickson were picking out paint colors for the house. She also testified Erickson moved bedroom furniture and a television with a video game system into a spare room for Erickson's son to play with when he was at the house. To her knowledge, Brown testified Erickson did not have anywhere else he stayed during the time she perceived he was living with Wife. However, in cross-examination, she testified she could not say for sure if Wife and Erickson lived together for more than 90 consecutive days in June 2013. She also stated she was not aware that Erickson maintained he had his own residence at that time and had put some of his belongings into storage. Brown testified Wife put pressure on her to not testify and told her if she was deposed, Wife "would know that we were choosing to side with [Husband] and that she didn't know if she would want a relationship with us anymore because she would feel like we were siding with him." Brown stated her relationship with Wife had not been good since her deposition in March 2014, and she currently did not have any contact with Wife. After the deposition, Wife told her daughters they "threw her under the bus" with their testimony about Wife's living arrangements.
The parties' other daughter, Lauren Kott, testified she was at Wife's house on a daily basis in 2013. She stated Wife lived with Erickson from March to July 20131 , and they strategically planned nights apart so they were not together for 90 consecutive days — Erickson stayed at his parents' house for a night or Wife went on a running trip with her friends. Kott testified Wife and Erickson bought groceries together and he kept his food at her house; Erickson kept his furniture, clothes, shoes, toiletries, and his son's toys at Wife's house; Erickson purchased a new television for Wife's house; and Wife and Erickson were decorating together, including painting and selecting material to recover some chairs to match Erickson's furniture. Kott testified Erickson's son stayed the night at Wife's house. Kott also testified her daughter was moving clothes from Wife's washer to the dryer when she saw Erickson's underwear in the washer. Wife said she was doing some laundry for Erickson, and when Kott told Wife she knew Erickson was living there, Wife told her ...
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