Mosley v. Mosley
| Decision Date | 10 November 2010 |
| Docket Number | No. 4759.,4759. |
| Citation | 390 S.C. 524,702 S.E.2d 253 |
| Parties | Carolyn Jackson MOSLEY, Respondent, v. Rollin Arnold MOSLEY, Appellant. |
| Court | South Carolina Court of Appeals |
James Wilson Tucker, Jr., of Rock Hill, for Appellant.
Daniel D. Agostino, of York, for Respondent.
In this divorce action, Rollin Mosley (Husband) assigns several errors to the family court's final decree, including: (1) its calculation of Husband's monthly child support obligation based on Carolyn Mosley's (Mother) alleged childcare costs; (2) its decision to require Husband to pay retroactive child support; (3) its finding that Husband withdrew a second mortgage on the parties' home without Wife's consent; (4) its apportionment of the equity in the marital home; and (5) its award of attorney's fees and costs. We affirm in part, reverse in part, and remand.
Husband and Wife were married for approximately one year prior to Wife filing this action on August 7, 2006. In her complaint, Wife sought a divorce on the ground of one year's continuous separation and requested sole custody of the parties' one-year-old child as well as child support, equitable division of the marital estate, and reasonable attorney's feesand costs. Husband answered and counterclaimed for joint custody and sought an annulment of the parties' marriage based on the parties' failure to consummate their marriage.
On August 6, 2008, the family court granted Wife and Husband a divorce on the ground of one year's continuous separation. Wife was awarded sole custody of the parties' child and Father was granted liberal visitation. In setting Husband's child support obligation at $277.77 per week, the family court found Mother provided daycare for the child at the cost of $390 per month; both parties paid the child's medical insurance; and Husband was responsible for one other child in his home. The family court also included a $25 weekly payment towards Husband's child support arrearage until Husband paid the arrearage in full. Husband's arrearage was based on the family court's finding that Husband misstated his income on his financial declaration submitted at the temporary hearing by failing to account for his military retirement and stating his net as opposed to his gross income.
In the final order, the family court found the parties' home and lot in Clover, South Carolina, to be marital property. The family court stated the absence of evidence, specifically the lack of an appraisal at the time the parties executed their first mortgage for $377,455, created a valuation issue for purposes of equitably dividing the home.1 As a result, the family court resorted to a recent appraisal, which valued the house and lot at $415,000.
Additionally, the family court found that after litigation commenced, Husband took out a second mortgage on the parties' homein the amount of $77,000 without Wife's consent. The family court determined the $77,000 represented the remaining equity in the home and concluded Wife was entitled to half of this sum, $38,500, as her share of the value of the home. Husband was ordered to pay this amount to Wife as well as $3,880 in Wife's attorney's fees.
The family court, however, failed to divide the remainder of the marital estate, or in the alternative, to find the parties had mutually resolved the distribution of their remaining assets.Moreover, the court failed to mention or discuss any statutory factors it considered in equitably dividing the marital estate and only specified one other piece of property, Wife's Suzuki motorcycle, which was subject to equitable distribution.
Husband filed a Rule 59(e), SCRCP, motion for reconsideration, which the family court denied. This appeal followed.
Husband contends the family court erred in (1) its child support calculation and award of retroactive child support; (2) its calculation and division of equity in the marital home; and (3) its award of attorney's fees and costs.
In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct.App.2005). However, this broad scope of review does not require this court to disregard the family court's findings. Id. at 189-90, 612 S.E.2d at 711. When evidence is disputed, the appellate court may adhere to the findings of the family court, who saw and heard the witnesses. Id. at 190, 612 S.E.2d at 711. The family court was in a superior position to judge the witnesses' demeanor and veracity and, therefore, its findings should be given broad discretion. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). Moreover, the court's broad scope of review does not relieve the appellant of the burden of proving to this Court that the family court committed error. Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E.2d at 711.
Husband first contends the family court erred in calculating his child support obligation based on Wife's alleged childcare costs. We agree.
Child support awards are within the family court's sound discretion and, absent an abuse of discretion, will not be disturbed on appeal. Mitchell v. Mitchell, 283 S.C. 87, 92, 320 S.E.2d 706, 710 (1984). An abuse of discretion occurs when the family court's decision is controlled by some error of law or when the order, based upon the findings of fact, is without evidentiary support. Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct.App.1996).
Wife testified at trial that she paid their child's babysitter, Ms. Allison, $390 per month for childcare. When Ms. Allison later testified, she stated Wife initially paid her $100 per week, but at Ms. Allison's insistence, the pay decreased in $10 increments to her current weekly earnings of $60 per week. Ms. Allison then stated, "When she feels like blessing me, she will give me a little more." When questioned by Husband's counsel as to whether Wife was paying Ms. Allison $390 per month, Ms. Allison stated, "When she blesses me, it add[s] up to that." Ms. Allison then reiterated that she was charging Wife $60 per week, but when Wife tells her she wants to "bless" her, she does not refuse the additional payment.
The family court erred in attributing $390 per month as childcare costs when the testimony presented at the final hearing established Ms. Allison only charged $60 per week. While Wife's decision to "bless" Ms. Allison with additional money on a random basis is an affable gesture, this voluntary gift given at Wife's sole discretion should not be attributed to Husband in calculating his child support obligation. See generally Mixson v. Mixson, 253 S.C. 436, 442-43, 171 S.E.2d 581, 584 (1969) (); Foster v. Foster, 294 S.C. 373, 375, 364 S.E.2d 753, 754 (Ct.App.1988) (); cf. Steffenson v. Olsen, 360 S.C. 318, 323-24, 600 S.E.2d 129, 132 (Ct.App.2004) ().
Accordingly, we reverse the family court's order insomuch as it credited Wife $390 per month in childcare when it calculated Husband's child support obligation.
Husband also argues the family court erred in ordering retroactive child support to the date of filing because Wife did not request it in her pleadings and there is no basis for this award in the record. We disagree.
The decision to award retroactive child support rests in the sound discretion of the family court. Kelly v. Kelly, 310 S.C. 299, 302, 423 S.E.2d 153, 155 (Ct.App.1992).
Our courts have previously awarded retroactive child support, despite a party's failure to specifically mention it in the pleadings. See Sutton v. Sutton, 291 S.C. 401, 409, 353 S.E.2d 884, 888 (Ct.App.1987) (). In the case at hand, Wife requested child support in conjunction with other relief that the family court deemed just and proper. We find Wife's petition sufficient under the circumstances. Id. at 408, 353 S.E.2d at 888 ().
Moreover, we find a review of the record supports an award of retroactive support. In its temporary order dated May 8, 2007, the family court determined Husband owed $147 per week in temporary child support and $4,233 in arrearages based upon Husband's financial declaration showing his gross monthly income to be $4,973. The family court recalculated the amount of Husband's arrearages in the final divorce decree based on its finding that Husband understated his gross monthly income by $1,795.85 and failed to account for $761 in monthly military retirement income.
At the final hearing, Husband conceded the pay stub submitted into evidence denoting his monthly gross income to be $6,768.65 was accurate. Because Husband's stated income on his financial declaration was at issue, Husband's pay stub wasthe most credible evidence for determining child support. See S.C.Code Ann. Regs. § 114-4720(A)(6) (Supp.2009) (...
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