Patterson v. Patterson
| Decision Date | 21 January 1986 |
| Docket Number | No. 0657,0657 |
| Citation | 288 S.C. 282,341 S.E.2d 819 |
| Court | South Carolina Court of Appeals |
| Parties | Judy A. PATTERSON, Respondent, v. Robert M. PATTERSON, Appellant. . Heard |
Edward L. Graham, Florence, for appellant.
Cheryl Turner Hopkins, Florence, for respondent.
Appellant Robert M. Patterson appeals from a decree of the Family Court granting respondent Judy A. Patterson a divorce on the ground of adultery and deciding ancillary issues relating to child custody, visitation and support, alimony, attorney fees and equitable division of marital property. We affirm in part, reverse in part and remand.
Six questions are presented on appeal: (1) whether the trial judge erred in not recusing himself from hearing the case; (2) whether the trial judge erred in finding Mr. Patterson had committed adultery; (3) whether the trial judge erred in the amount of child support awarded; (4) whether the trial judge erred in awarding alimony; (5) whether the trial judge erred in awarding attorney fees; and (6) whether the trial judge erred in awarding Mrs. Patterson an equal interest in the marital home and its furnishings and the exclusive use of this property for up to seven years.
Prior to the first hearing in this case, Mr. Patterson's lawyer informed the judge he would prefer not to appear before him because of the judge's relationship with his firm. Mrs. Patterson's lawyer was advised of this but waived any objection to having the judge hear the case. Mr. Patterson's lawyer made no formal objection to the judge hearing the case.
At the beginning of the final hearing, the judge stated on the record that he had earlier conferred with both lawyers and that Mrs. Patterson's lawyer again waived any objection to his hearing the case but that he would disqualify himself "if anybody had a question about it." Again, Mr. Patterson's lawyer made no objection.
We hold Mr. Patterson waived any objection he may have had to the judge hearing the case. Cf. Butler v. Sea Pines Plantation Co., 282 S.C. 113, 317 S.E.2d 464 (Ct.App.1984) (); Moon v. State, 154 Ga.App. 312, 268 S.E.2d 366 (1980) (). Moreover, we have reviewed the findings of the trial judge and the record as a whole and can discern no bias or prejudice on the part of the judge.
Adultery must be proved by a clear preponderance of the evidence but the evidence need not be direct and adultery may be proved by circumstantial evidence. Loftis v. Loftis, 284 S.C. 216, 325 S.E.2d 73 (Ct.App.1985).
On appeal from a decision of the Family Court, we have jurisdiction to find facts based on our own view of the evidence, but we are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their credibility. Id.
Based on our view of the evidence, we find essentially the same facts found by the trial judge necessary to support his decision on this issue.
Child support, alimony and attorney fees are matters which rest within the sound discretion of the trial judge and his decision on these issues will not be disturbed on appeal absent an abuse of discretion. Bradley v. Bradley, 285 S.C. 170, 328 S.E.2d 647 (Ct.App.1985).
The trial judge failed to make the specific findings on these issues required by Rule 27(c) of the Rules of Practice for the Family Courts of the State of South Carolina. Failure to comply with the rule will ordinarily result in our remanding a case for compliance. However, in the instant case we are able to find from our own review of the evidence that the trial judge did not abuse his discretion in deciding these issues. 1
The Family Court may require one spouse to provide another with necessary shelter as an incident of support, but there are limitations on the award of exclusive use of a marital home and exclusive use may not be awarded unless warranted by special circumstances. Barone v. Barone, --- S.C. ---, 338 S.E.2d 149 (1985). Among the factors which should be considered in deciding whether to award a spouse exclusive possession are: (1) whether the home is to be used to provide shelter for minor children; (2) whether the occupying spouse is handicapped or has some special need for the home; (3) whether the occupying spouse cannot reasonably obtain other housing; (4) the amount of equity the other spouse has in the home; (5) the length of time the equity of the other spouse will be tied up; and (6) the total amount of support otherwise awarded. Shafer v. Shafer, 283 S.C. 205, 320 S.E.2d 730 (Ct.App.1984).
The trial judge found the marital home and its furnishings should be equally divided between Mr. and Mrs. Patterson but postponed this division by awarding Mrs. Patterson exclusive use of this property until the youngest child of the...
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Loughlin v. Loughlin
...exclusive possession of marital home while children attended college improper postmajority child support); Patterson v. Patterson, 288 S.C. 282, 286-87, 341 S.E.2d 819 (App. 1986) Similar considerations apply to grandchildren, for whom their grandparents have no legal duty of support, even ......
- Doe v. S.B.M.
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Black v. Black
... ... App. 1999) (finding that a party has waived an ... objection to arbitration by participating without objection); ... Patterson v. Patterson, 288 S.C. 282, 284-85, 341 ... S.E.2d 819, 820 (Ct. App. 1986) (recognizing that a party may ... implicitly waive objection ... ...
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Black v. Black, Opinion No. 2010-UP-196 (S.C. App. 3/8/2010)
...(Ct. App. 1999) (finding that a party has waived an objection to arbitration by participating without objection); Patterson v. Patterson, 288 S.C. 282, 284-85, 341 S.E.2d 819, 820 (Ct. App. 1986) (recognizing that a party may implicitly waive objection to a judge's failure to recuse himself......