Nobles v. Nobles
| Decision Date | 23 July 2008 |
| Docket Number | 2008-UP-427 |
| Parties | Carie W. Nobles, Respondent, v. Jon Christopher Nobles, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted June 2, 2008
Appeal From Horry County H. E. Bonnoitt, Jr., Family Court Judge Mary E. Buchan, Family Court Judge
John S. Nichols, of Columbia, for Appellant.
Frederick L. Harris, of Myrtle Beach; and George M. Hearn Jr., of Conway, for Respondent.
Jon Christopher Nobles (Husband) appeals the family court order granting Carie Nobles (Wife) a divorce, arguing the family court erred in its determination of marital property valuation of special equity interests, and equitable division of the marital estate. We affirm. [1]
Husband and Wife were high school sweethearts and became engaged while attending Clemson University. Husband graduated from Clemson in December 1993, and obtained employment as a credit manager for Heilig-Myers Furniture in Columbia, South Carolina. Husband and Wife married on May 20, 1995. Shortly thereafter, Husband was transferred to Griffin, Georgia, as a Heilig-Myers store manager. Wife graduated from Clemson in December 1995, and joined Husband in Griffin. In July 1996, Husband was transferred to Jacksonville, Florida, where he eventually managed three Heilig-Myers stores and earned approximately $100, 000 per year. Wife also obtained employment in Jacksonville at the Florida Department of Health as a health educator earning $28, 000 per year.
In early 2001, Husband lost his job with Heilig-Myers when the retail chain filed for bankruptcy. Consequently, Husband and Wife returned to South Carolina to open a franchise furniture store in Myrtle Beach. In March 2001, while making plans to leave Jacksonville, Wife became pregnant. Approximately five months later, the parties moved to North Myrtle Beach and their first child, Sarah, was born in November 2001. Following the birth of Sarah, Husband and Wife moved into a new home with financial contributions provided by Wife's parents.
With the proceeds from the sale of their home in Jacksonville and Husband's 401(k), the parties opened Norwalk: The Furniture Idea (Norwalk), a franchise, under the name Noble Enterprises of the Carolinas, LLC, the franchisee. Based upon his management experience in the furniture business, Husband served as Norwalk's managing partner. Husband, his mother and father, and Wife each owned a twenty-five percent interest in the business. While Wife occasionally assisted with the business, she was primarily responsible for caring for the couple's first child.
After Norwalk opened, Husband began staying away from home and became less dedicated to his role as managing partner. Consequently, Wife hired Pamela Burris as sales manager for Norwalk. Due to Husband's increasing unavailability, Burris became the de facto manager of the store. By December 2005, Husband was working as a waiter and was no longer associated with Norwalk. Shortly thereafter, Norwalk ceased operation.
Husband began to withdraw from Wife in December 2003, arriving home from work no earlier than 8:00 p.m. and sometimes as late as 11:00 p.m. While Wife expressed concern regarding Husband's absence, he claimed work demanded the majority of his time. Husband showed little emotion and continued to withdraw from the marriage when Wife became pregnant with the couple's second child in April 2004. Husband began devoting his time to conducting private, secretive activities on his computer, and would shut down the computer when Wife entered the room. Although Husband denied having an affair, Wife discovered Husband was visiting various pornographic websites and corresponding with at least three women twenty to thirty times a day in various internet chat rooms. Wife also found suspicious text messages of an explicit nature on Husband's phone and later found out Husband had rented a private post office box. Soon thereafter, Husband began refusing Wife's phone calls during the day and would not return home until Wife had gone to bed. Husband's appearance also began to change dramatically. Husband joined Gold's Gym, hired a personal trainer, and spent a minimum of three hours every day at the gym even though his business was failing. Husband's financial excesses included an ongoing health club membership, massages, manicures, hair appointments, car washes, and lawn care.
On March 21, 2005, Wife confronted Husband regarding their marital problems. In response, Husband requested Wife file for divorce and the parties subsequently separated. Wife hired a private investigator who obtained proof of Husband's relationship with Allison Sides, a fellow member of Gold's Gym. Wife and Wife's father also observed Husband on several occasions with Sides, including dinner dates and other social gatherings. According to Husband, he engaged in sexual relations with Sides only after the parties' separation.
Since the separation, Wife and the couple's children have continued to reside in the marital home. Wife found employment and earns $2, 092 gross per month. Wife pays approximately $70 per month for the children's medical and dental insurance and $953 per month for daycare. Immediately after the separation, Husband resided with his parents and continued to work as a waiter. However, Husband later moved to Jacksonville, Florida with his present girlfriend, Danelle Metz, where he still waits tables at a local restaurant.
Following Husband's relocation to Jacksonville, Wife brought an action against Husband seeking a divorce on the ground of adultery, an award of separate support and maintenance, use and possession of the marital home, custody of the parties' two children, child support, alimony, attorneys' fees, and restraining orders against disposing of assets and exposing the children to his romantic relationships. In response, Husband counterclaimed for a mutual bar to alimony, equitable apportionment of the marital estate, a co-parenting arrangement, and an award of attorneys' fees and court costs.
On August 22, 2005, the family court issued a temporary order awarding Wife primary custody of the children and use of the marital home. The temporary order also required Husband pay child support in the amount of $198 per month based upon his imputed income of $4, 000. In addition, Husband was ordered to pay $2, 000 per month for Wife's separate support and maintenance as well as $10, 000 towards Wife's attorneys' fees.
Approximately one year later, the family court issued a final order awarding Wife a divorce on the ground of adultery and granting her primary custody of the parties' two children. In determining child support, the family court imputed a monthly income of $4, 000 to Husband finding he was voluntarily underemployed and capable of earning more given his skills, experience, and expertise. Based upon Husband's imputed earnings of $4, 000 per month, the family court ordered Husband to pay $1, 114 in monthly child support. With regards to equitable division, the family court valued the marital home at $230, 000 and distributed sixty percent of the marital property to Wife. In dividing the marital debt, the family court also noted Wife faced potential liability to the former family business based on an action brought against her by Noble Enterprises. However, the family court ordered Husband to indemnify Wife against any judgment awarded in the pending lawsuit, finding any debt incurred by Noble Enterprises was a direct result of Husband's failure to dedicate himself to the business and the marriage... which he abandoned.” The family court further ordered Husband to pay Wife's attorneys' fees in the amount of $12, 800. Subsequently, Husband filed a Rule 59(e), SCRCP, motion, which was denied. This appeal followed.
In an appeal from the family court, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). However, this broad scope of review does not require the appellate court to disregard the findings of the family court. Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). Neither is the appellate court required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.” Id. at 540, 615 S.E.2d at 102.
Husband argues the family court erred in imputing $4, 000 per month income to him. Specifically, Husband asserts the family court erred in finding he was voluntarily underemployed and capable of earning $4, 000 per month based upon his skill, experience, and expertise. We disagree.
Our courts have held imputing income to a party who is voluntarily unemployed or underemployed is proper. Patel v. Patel, 359 S.C. 515, 532, 599 S.E.2d 114, 123 (2004); Penny v. Green, 357 S.C. 583, 592, 594 S.E.2d 171 175 (Ct. App. 2004). To prove voluntary underemployment, a parent seeking to impute income to the other parent need not establish a bad faith motivation to lower a support obligation.” Arnal v. Arnal, 371 S.C. 10, 13, 636 S.E.2d 864, 866 (2006). When imput[ing] income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and...
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