O'Neill v. O'Neill

• Decision Date: 15 June 1987
• Docket Number: No. 0990,0990
• Citation: 293 S.C. 112,359 S.E.2d 68
• Court: South Carolina Court of Appeals
• Parties: Frank Quale O'NEILL, Appellant, v. Ramona Landry O'NEILL, Respondent. . Heard

Page 68

359 S.E.2d 68

293 S.C. 112

Frank Quale O'NEILL, Appellant, v. Ramona Landry O'NEILL, Respondent.

No. 0990.

Court of Appeals of South Carolina.

Heard June 15, 1987.

Decided July 20, 1987.

Robert B. Wallace and Paul E. Tinkler, of Wallace and Tinkler, Charleston, for appellant.

Robert N. Rosen, of Rosen, Rosen and Hagood, Charleston, for respondent.

CURETON, Judge:

In this domestic case the family court granted the wife, Ramona O'Neill, a divorce from the husband, Frank Quale O'Neill, on the ground of adultery and awarded the wife periodic alimony of $1,200.00 per month and $4,500.00 attorney fees. Each party was ordered to pay the creditors listed on their respective financial declarations. The husband appeals the awards of alimony and attorney fees and alleges the judge erred in apportioning the marital debt. We affirm.

The parties married in 1976. At that time, the wife earned $14,000.00 a year and received approximately $700.00 per month alimony from a prior marriage. Except for two brief periods of several months early in the marriage, the wife has not been employed. The husband is a journalist and novelist. His novel, Agents of Sympathy, was published in May 1985. At the time of the marriage he had an income of $18,000.00 a year from a residual trust. In 1977, the husband inherited $800,000.00. The couple soon thereafter purchased a $185,000.00 home on Church Street in Charleston with funds from the inheritance and approximately $23,000.00 netted by the wife from the sale of her condominium in Washington, D.C. The house was purchased in both parties' names but subsequently placed in the wife's name. Soon after purchasing the house, the parties mortgaged it for $150,000.00 and placed the proceeds in the husband's stock investment account. Following the inheritance the couple began an extravagant lifestyle, spending heavily on their home and furnishings, clothes, cars, and trips to Europe. By the time the case was tried in 1986 the entire $800,000.00 was depleted.

The marriage was apparently in difficulty from the beginning. In 1981 the couple separated briefly. In 1982 the husband testified he warned his wife that heavy spending and investment losses were depleting the inheritance. In November 1984 the wife moved to New York City to pursue a business venture importing Irish goods. A second mortgage for $125,000.00 was obtained on the Church Street home. The wife used $88,000.00 of this money to purchase an option on a $385,000.00 apartment in New York City. The remaining $35,000.00 was utilized by the wife for living expenses in New York. The parties planned to sell the Church Street house and rent a farmhouse in New York or Pennsylvania for the husband to occupy while he completed his second novel. In March 1985, however, he wrote the wife in New York requesting a divorce.

The wife's New York business venture never materialized. During the pendency of this action, the option on the apartment came due and, because there were no funds available to exercise it, the $88,000.00 previously paid was lost. The Church Street home finally sold in September 1985 for $375,000.00, substantially less than the parties had anticipated. This action was commenced as a separation action by the husband in June 1985. The wife counterclaimed alleging adultery and other misconduct, and praying for alimony, equitable division and attorney fees. A temporary order awarded the wife the net proceeds from the sale of the marital home in Charleston, approximately $29,000.00 after The case was tried in April 1986. The husband admitted at the hearing that he had committed adultery with two persons subsequent to the separation. In an order issued in May 1986 the judge awarded the wife a divorce on the ground of adultery, periodic alimony of $1,200.00 per month, and a $4,500.00 attorney fee. The court further awarded each party the personal property in their possession. Each party was ordered to pay the marital debts listed on their financial declaration, which amounted to $10,600.00 for the wife and approximately $31,000.00 for the husband. The couple owned no real property at the time of the final hearing.

                mortgages and other debts were deducted.   The husband filed an amended petition before the final hearing praying for a divorce on one year's separation
                

ALIMONY

The husband argues several reasons why the judge erred in awarding the wife periodic alimony of $1,200.00 per month. We shall consider these arguments briefly.

First, the husband claims periodic alimony should have been denied because he had previously transferred to the wife assets totalling $216,000.00. These included the proceeds of the second mortgage on the Church Street house, $6,000.00 proceeds from the sale of the wife's Cadillac, $9,000.00 forwarded to the wife from a personal loan the husband obtained, a $46,000.00 stock portfolio given to the wife shortly after the inheritance, and the proceeds from the sale of the Church Street house given to the wife under the temporary order. He argues the transfer of these assets amounted to an award of lump sum alimony and he should be relieved from any further alimony obligation. Alternatively, he requests lump sum alimony be awarded in a small sum with credit for these previous transfers. To support this argument the husband claims the wife "entirely exhausted the husband's $800,000.00 inheritance (albeit partially with his acquiescence) in a period of eight years."

The trial court considered the propriety of awarding lump sum alimony in this case, despite the fact that it had not been prayed for, nor had the elements been proven at trial. As the trial judge noted, our courts have consistently held that lump sum alimony can only be awarded "where special circumstances require it or make it advisable, and an award of a lump sum as permanent alimony should be supported by some impelling reason for its necessity or desirability." Millis v. Millis, 282 S.C. 610, 612, 320 S.E.2d 66, 67 (Ct.App.1984). The court concluded since no special circumstance existed to warrant lump sum alimony, it could only award the wife periodic alimony.

The court did, however, enumerate and consider in its award the assets previously awarded to the wife. The court also considered the factors set forth in Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981) and Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504 (1977). Accordingly, the court noted the wife was 47 years of age, had never earned more than $14,000.00 per year in clerical jobs, had a high school diploma, had enjoyed a high standard of living with the husband which, admittedly, had to be adjusted, and currently had no income but expenses of $4,369.00 per month. The husband, while listing no income on his financial declaration, testified he would be able to earn a minimum of $50,000.00 per year as a novelist, or he would seek other employment.

An award of alimony rests within the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of abuse of discretion. Nienow v. Nienow, supra; Sumter v. Sumter, 280 S.C. 94, 311 S.E.2d 88 (Ct.App.1984). In divorce cases this Court has jurisdiction to find facts in accordance with our own view of the preponderance of the evidence. Shafer v. Shafer, 283 S.C. 205, 320 S.E.2d 730 (Ct.App.1984). Based on the findings of the trial judge and our own review of the record, we find no abuse of discretion by the trial judge in refusing to award lump sum alimony to the wife and in awarding her $1,200.00 monthly periodic alimony. The record amply demonstrates the spending habits of both parties dissipated the inheritance. The husband has a The husband alternatively argues this is an appropriate case for rehabilitative alimony. We find no evidence in the record to support this claim. There is no indication the wife, now almost fifty years old, could successfully complete...