Myers v. Myers

Decision Date20 January 2011
Docket NumberNo. 4776.,4776.
CourtSouth Carolina Court of Appeals
PartiesMartha Joy Culbreth MYERS, Respondent,v.Andrew Michael MYERS, Appellant.

OPINION TEXT STARTS HERE

W.D. Yarborough, Jr., of Greenville, for Appellant.Timothy E. Madden, of Greenville, for Respondent.WILLIAMS, J.

On appeal, Andrew Myers (Husband) claims the family court erred in (1) awarding Martha Myers (Wife) $3,000 in permanent periodic alimony; (2) dividing certain assets in the marital estate; and (3) ordering Husband to pay sixty percent of Wife's attorney's fees. We affirm in part and reverse in part.

FACTS

Husband and Wife were married for nine years prior to Wife filing for divorce. This was the third marriage for both Husband and Wife, and no children were born of the marriage. As of the date of trial, Wife was sixty-two years old and Husband was sixty-five years old.

During the parties' marriage, they lived in Husband's home located in an upscale neighborhood in Greenville, South Carolina. Wife, a high school graduate, was a part-time teller at a local bank and earned approximately $2,455 per month. Husband was an insurance salesman and the sole owner and operator of an insurance agency, Advanced Health Insurance Service, Inc. According to Husband's W–2 and financial declaration, he earned approximately $7,116 per month or $85,399.20 per year. As owner of his business, Husband received other economic benefits apart from his salary, such as rental income from his office building and expense and travel reimbursements. By the parties' agreement, Wife used her salary exclusively for her own benefit while Husband paid all the bills and their living expenses from his earnings. Both parties testified they had a comfortable lifestyle during their marriage. Husband enjoyed golfing and hunting on a routine basis, and Wife's leisure activity of choice was shopping.

Wife testified she filed for divorce after Husband walked out on the marriage. Wife filed for separate support and maintenance and subsequently amended her complaint to request attorney's fees as well as a divorce based on Husband's desertion. At the one-day trial, Husband moved to amend his answer to request a divorce based on one year's continuous separation, and Wife did not contest this motion.

In its final order, the family court granted the parties a divorce based on one year's continuous separation. The family court found Husband's business and the parties' marital home were nonmarital assets, but it awarded Wife a special equity interest in the amount of $19,000 based on renovations to the house using Wife's premarital funds. The court granted Wife certain marital property, which was given to Wife by Husband during the parties' marriage. Specifically, the court awarded Wife a 2001 Acura MDX vehicle, her diamond engagement ring, a full-length fur coat, and other furniture and personal property in Wife's possession. The family court then awarded Wife one-third of the remainder of the marital estate.

In its decision to award Wife alimony, the family court stated it considered the factors set forth in section 20–3–130 of the South Carolina Code. In setting Wife's alimony, the court found Wife's reasonably anticipated expenses were approximately $6,000 per month based on Wife's lifestyle during the marriage. The court noted Husband's expenses were approximately $6,000 per month but found several of these expenses were “double counted” because Husband reimbursed himself for those expenses through his business. As a result, the family court found Husband's income was closer to $100,000; thus, he could afford to contribute towards maintaining Wife's lifestyle and consequently awarded Wife $3,000 per month in permanent periodic alimony.

Husband filed a Rule 59(e), SCRCP, motion, which the family court denied. This appeal followed.

STANDARD OF REVIEW

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.

LAW/ANALYSIS
I. Alimony

Husband does not argue Wife should not receive any alimony; rather, he contends the family court's award of alimony to Wife was excessive. We agree.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dearybury v. Dearybury v. 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002). Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage. Craig v. Craig, 365 S.C. 285, 292, 617 S.E.2d 359, 362 (2005). However, alimony should not “serve as a disincentive for spouses to improve their employment potential or to dissuade them from providing, to the extent possible, for their own support.” McElveen v. McElveen, 332 S.C. 583, 599, 506 S.E.2d 1, 9 (Ct.App.1998). Thus, [i]t is the duty of the family court to make an alimony award that is fit, equitable, and just if the claim is well founded.” Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001).

When awarding alimony, the family court considers the following factors: (1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5) standard of living established during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses of the parties; (8) marital and nonmarital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; (12) prior support obligations; and (13) other factors the court considers relevant. S.C.Code § 20–3–130(C) (Supp.2009). No one factor is dispositive. Allen, 347 S.C. at 184, 554 S.E.2d at 425.

In awarding Wife alimony, the family court stated it considered the relevant statutory factors from section 20–3–130(C). Specifically, the court noted the following in finding Wife was entitled to alimony: the parties' current and reasonably anticipated expenses; the needs of both parties; the standard of living established during the marriage; and the tax consequences of the alimony award on Husband and Wife.

Despite the family court's findings, we find its award of alimony to Wife was excessive. Wife claimed she had monthly expenses of $6,000, but a review of her financial declaration reveals that many of her expenses were inflated for purposes of calculating Wife's entitlement to alimony. For example, Wife claimed she spent $2,300 per month on clothing, entertainment, trips, clubs, hair care, cosmetics, pet care,1 nails, tanning, and gifts. Further, despite having no children or dependents living in Wife's home, she claimed almost $1,000 per month for “food and household supplies.” When questioned about this expense at trial, Wife admitted she actually only spent $400 per month on food, and many of the other household expenses were one-time expenditures associated with settling into her new home.

The record indicates the parties enjoyed a comfortable standard of living during their marriage, but these expenditures are overstated. While Wife is entitled to a reasonable amount of alimony, it is error to award her permanent alimony substantially in excess of her needs. See McElveen, 332 S.C. at 600, 506 S.E.2d at 10 (finding wife's living expenses, as stated in her financial declaration, were unnecessarily inflated, thereby reducing Husband's monthly alimony obligation from $11,000 per month to $7,500 per month); Brandi v. Brandi, 302 S.C. 353, 358, 396 S.E.2d 124, 127 (Ct.App.1990) (finding family court abused its discretion in award of alimony to wife because wife's expenses were clearly excessive); Woodward v. Woodward, 294 S.C. 210, 217, 363 S.E.2d 413, 417 (Ct.App.1987) (finding permanent alimony of $3,000 per month was excessive when wife had been awarded fair percentage of marital estate and her expenses exceeded income by only about $600 per month). To sustain this alimony award would effectively penalize Husband and reward Wife. See Donahue v. Donahue, 299 S.C. 353, 362, 384 S.E.2d 741, 746 (1989) (Alimony “is not intended to penalize one spouse while rewarding the other.”).

In support of its award, the family court noted Husband's expenses were slightly more than $6,000 but apparently discounted these expenses by finding Husband “double counted” his house insurance and was reimbursed by his business for his automobile payment and automobile expenses. However, Husband noted on his declaration that his house insurance was included in his loan payment and expressly deducted his house insurance from his monthly expenses. Furthermore, even if we exclude the automobile expenses from Husband's declaration, an award of this size is unfairly structured in Wife's favor, particularly when other factors militate against a $3,000 monthly alimony award. See Allen, 347 S.C. at 184, 554 S.E.2d at 424 (“It is the duty of the family court to make an alimony award that is fit, equitable, and just if the claim is well founded.”).

Specifically, the following relevant evidence supports this...

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