Nelson v. Merritt, No. 0062

• Court: Court of Appeals of South Carolina
• Writing for the Court: GOOLSBY; GOOLSBY
• Citation: 281 S.C. 126,314 S.E.2d 840
• Parties: Anne NELSON, formerly Anne Merritt, Appellant, v. H. Shelby MERRITT, Respondent. . Heard
• Decision Date: 14 December 1983
• Docket Number: No. 0062

Page 840

314 S.E.2d 840 281 S.C. 126 Anne NELSON, formerly Anne Merritt, Appellant,
v.
H. Shelby MERRITT, Respondent. No. 0062. Court of Appeals of South Carolina. Heard Dec. 14, 1983.
Decided Feb. 6, 1984.
On Rehearing March 5, 1984.

Page 841

[281 S.C. 127] Ann L. Furr, of Furr & Delgado, Columbia, for appellant.

Betty J. Gambrell Cobb of King & Cobb, Columbia, for respondent.

GOOLSBY, Judge:

The appellant Anne Nelson appeals from a family court order which reduced the child support obligations of her [281 S.C. 128] former husband, H. Shelby Merritt, and which denied her attorney's fees. We affirm in part and reverse in part.

Nelson and Merritt were divorced on August 30, 1977. The divorce decree incorporated a prior agreement entered into by the parties. Among other things, the agreement provided that Merritt would pay Four Hundred Dollars ($400) a month for the support of two minor children and would pay the school tuition for each child at "an appropriate private institution" with standards similar to those at either Porter-Gaud or Ashley Hall, two private schools in Charleston.

Sometime after the divorce, Nelson and the children moved to Richmond, Virginia. She enrolled the children at the Collegiate School, a private institution. Both parties remarried.

This action was brought by Nelson to require Merritt to pay the tuitions for the children at Collegiate. Nelson also sought attorney's fees. Merritt denied that the decree obligated him to pay the amount charged each child by Collegiate as tuition. In a counterclaim, he sought a reduction in child support payments alleging that both parties' circumstances had substantially changed.

Subsequently, the family court directed Merritt to make tuition payments in an amount equal to the tuitions that would be charged his children at Porter-Gaud and Ashley Hall. Merritt's monthly child support payments were reduced by the family court from Four Hundred Dollars ($400) to Three Hundred Dollars ($300), and Nelson's request for attorney's fees was denied.

The appellant does not argue in her brief the two exceptions that relate to tuition payments. A failure to argue an exception constitutes an abandonment of it. Shirer v. O.W.S. & Assocs., 253 S.C. 232, 169 S.E.2d 621 (1969); Cudd v. John Hancock Mutual Life Ins. Co., 310 S.E.2d 830 (S.C.App., 1983). We, therefore, do not treat those exceptions and turn first to the issue concerning the reduction in child support payments.

Because this is an equity matter heard by a single judge, we are at liberty to find facts based on our view of the preponderance of the evidence. Brown v. Brown, 278 S.C. 43, 292 S.E.2d 297 (1982); Major v. Major, 277 S.C. [281 S.C. 129] 318, 286 S.E.2d 666 (1982). A child support award is subject to continuing review and may be modified by the court if evidence is produced showing a sufficient change of conditions warrants a modification. Moseley v. Mosier, S.C., 306 S.E.2d 624 (1983); Perkins v. Parkins, 309 S.E.2d 784 (S.C.App., 1983).

Here the trial judge first found that Merritt had made a proper showing of changed conditions sufficient to justify a reduction in his child support obligations. In making that determination, the trial judge considered the effect of Merritt's remarriage,

Page 842

the impact of inflation, and the consequences of Nelson's move to Virginia and her remarriage. But none of these factors is sufficient to warrant decreasing the amount of Merritt's child support payments, especially when consideration is given to the facts that his earnings in less than four years rose over Seven Thousand Five Hundred Dollars ($7,500) to Thirty-two Thousand Seven Hundred Sixty Dollars ($32,760) and that an expense-free automobile has been furnished to him by his employer.

The trial judge found persuasive Merritt's testimony that his new wife is "essentially a financial liability rather than a financial asset"; however, there are no facts in the record that tend to show that Merritt's financial condition has been worsened in any way by his remarriage. Indeed, his new wife is employed as a school teacher and her income, even he conceded, offsets any financial loss suffered by him on account of his marriage to her. Moreover, she owns their marital home; and Forty-five Thousand Dollars ($45,000) of her own money was pledged by her as collateral on a loan made to Merritt by the First National Bank of South Carolina. Merritt's remarriage, we find, is not a circumstance which has adversely affected his ability to provide the child support he agreed to pay.

Regarding inflation, we recognize that it has had a negative effect on the husband's buying power; however, no one is immune from inflation's...