Sanderson v. Sanderson

• Decision Date: 22 December 2010
• Docket Number: No. 4771.,4771.
• Citation: 391 S.C. 249,705 S.E.2d 65
• Parties: Robert A. SANDERSON, Appellant,v.Delia M. SANDERSON, Respondent.
• Court: South Carolina Court of Appeals

391 S.C. 249

705 S.E.2d 65

Robert A. SANDERSON, Appellant,

v.Delia M. SANDERSON, Respondent.

No. 4771.

Court of Appeals of South Carolina.

Heard Sept. 15, 2010.Decided Dec. 22, 2010.

Rebecca West, of Lexington, for Appellant.James Wilson Tucker, Jr., of Rock Hill, for Respondent.KONDUROS, J.

Robert Sanderson (Husband) appeals the family court's findings regarding Delia Sanderson's (Wife's) financial need and the imputing of income to him in the amount of $64,000. Husband also appeals the retroactive award of alimony and child support. We affirm in part, reverse in part, and remand.

FACTS

Husband and Wife married in 1984 in Wife's native country, Honduras. The parties had three children including their oldest son, Kyle, who was nineteen at the time of trial.¹ Husband began an adulterous relationship with a paramour, and the divorce was granted on that basis. The parties separated in July 2005 and Wife filed an action for divorce seeking child support, alimony, and custody of the parties' children.² Although he had moved out of the marital home, Husband continued to pay for Wife's and the children's household expenses. He did so until February 2006 when his position as Corporate Director of Quality with the Cooley Group was eliminated because of corporate downsizing. Husband continued paying the household expenses until April 1, 2006, using funds from his severance package. Husband then, by agreement of the parties, began paying $75 per week in child support using his unemployment benefits. When those benefits were exhausted, Husband stopped paying child support.

When Husband's employment was terminated, he was earning a gross income of $95,000, plus additional funds for teaching as an adjunct professor at area colleges. Wife earned approximately $33,000 per year in a clerical position.

At the time of trial, Husband was unemployed and living with his paramour. Husband testified he had looked for employment but could find nothing. He indicated he had applied for positions for which he was overqualified and was rejected based on the employer's belief that he would only work temporarily in such a position until a better job became available. According to the record, Husband brought to the family court a file containing copies of numerous letters he sent seeking employment.³ Wife testified she believed Husband could find a job because he was from this country and knew how to “ manipulate the system.” In determining the issues of alimony and child support, the family court concluded the parties enjoyed a comfortable standard of living during the marriage, and Wife required financial assistance from Husband to meet her necessary living expenses. The family court imputed income to Husband of $64,000 per year, noting he had earned at least that much in annual salary since 1994. Using that figure, the family court awarded alimony in the amount of $650 per month, retroactive to March 1, 2006, with payment of $25 bi-monthly applying toward the arrearage. The family court ordered child support in the amount of $168 per week in accordance with the guidelines and made the award retroactive to August 1, 2006, with payment of $15 per week going toward the arrearage. This appeal followed.

STANDARD OF REVIEW

On appeal in family court matters, the appellate court's scope of review extends to the finding of facts based on its own view of the preponderance of the evidence. Thomson v. Thomson, 377 S.C. 613, 619, 661 S.E.2d 130, 133 (Ct.App.2008). “Questions concerning alimony rest within the sound discretion of the family court judge whose conclusion will not be disturbed absent a showing of abuse of discretion.” Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct.App.2004). Questions concerning child support are likewise ordinarily committed to the discretion of the family court, whose conclusions will not be disturbed on appeal absent an abuse of discretion. Blackwell v. Fulgum, 375 S.C. 337, 347, 652 S.E.2d 427, 432 (Ct.App.2007).

LAW/ANALYSIS

I. Section 20–3–130⁴ Factors

Husband maintains the family court erred in its conclusions as to several of the statutory factors to be considered in awarding alimony and child support. We will address each argument in turn.

A. Standard of Living

Husband argues the family court erred in concluding the parties enjoyed a comfortable standard of living. This issue is not preserved for our review.

Husband did not argue this point at trial, and his motion for reconsideration does not ask the family court to reconsider this finding. Husband's Rule 59(e), SCRCP, motion urges that Wife's living expenses as presented at trial were inflated. However, this point goes to the issue of Wife's financial need as opposed to the standard of living enjoyed by the parties during the marriage. A point not specifically raised to and ruled upon by the trial court will not be considered on appeal. See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301–02, 641 S.E.2d 903, 907 (2007) (stating to be preserved for appellate review, issue must have been (1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial court with sufficient specificity).

B. Husband's Income

Husband argues the family court abused its discretion in imputing income to him of $64,000 per year. We agree.

Without question, the family court has the discretion to impute income to a party with respect to awards of alimony or child support.

If the obligor spouse has the ability to earn more income than he is in fact earning, the court may impute income according to what he could earn by using his or her best efforts to gain employment equal to his capabilities, and an award of alimony based on such imputation may be a proper exercise of discretion even if it exhausts the obligor spouse's actual income.

Dixon v. Dixon, 334 S.C. 222, 240, 512 S.E.2d 539, 548 (Ct.App.1999); see also Blackwell v. Fulgum, 375 S.C. 337, 347, 652 S.E.2d 427, 432 (Ct.App.2007) (stating imputing income to a party who is voluntarily unemployed or underemployed is appropriate when determining child support obligations).

According to the South Carolina Child Support Guidelines (Guidelines), “[i]n order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.” S.C.Code Ann. Regs. 114–4720(A)(5)(B) (Supp.2009). A bad faith motivation is not required for a finding of voluntary underemployment. Arnal v. Arnal, 371 S.C. 10, 13, 636 S.E.2d 864, 866 (2006). “However, the motivation behind any purported reduction in income or earning capacity should be considered in determining whether a parent is voluntarily underemployed.” Spreeuw v. Barker, 385 S.C. 45, 62, 682 S.E.2d 843, 851 (Ct.App.2009). When actual income versus earning capacity is at issue, courts should closely examine a good-faith and reasonable explanation for the decreased income. Id.

In this case, Wife does not dispute Husband lost his job through no fault of his own. Furthermore, Husband paid all the household expenses from the time of separation in July 2005 until the loss of his job on February 2, 2006. Husband continued to pay the household expenses for two more months, February and March, using funds from his severance package. Husband then, by agreement of the parties, began paying $75 per week in child support using his unemployment benefits. When those benefits were exhausted, Husband stopped paying child support. The record contains little evidence Husband's failure to be employed is motivated by bad faith.⁵ However, a finding of bad faith is not required to establish a party is voluntarily underemployed or unemployed. Therefore, we will continue our analysis by examining the factors listed in the Guidelines to determine if the family court abused its discretion in imputing a $64,000 annual income to Husband.

1. Recent Work History

As the family court noted, Husband earned $95,000 annually at his most recent job. He had been employed with that company for three years. In addition, Husband traditionally earned several thousand dollars a year by teaching as an adjunct professor at area colleges. According to the record, he had earned $82,000 plus teaching pay in 2004. Prior to that, Husband's annual salary is a little difficult to discern, but he appears to have earned a total income of $66,000 in 1997 and approximately $64,000 in 1994.

2. Occupational Qualifications

Husband has a master's degree in technology and an undergraduate degree in career occupations. He was employed through his enlistment in the Air Force prior to 1991. According to Husband's testimony, his skill set and education were most suited for work in the manufacturing sector.

3. Prevailing Job Opportunities

The only evidence in the record on this point is Husband's testimony that he has applied for numerous positions, including those for which he is over-qualified, and he has been unable to find a job. Husband testified he had applied for jobs at Lowe's and Home Depot but was rejected because the employer believed he would leave the position once he found a better job. Husband admitted he had not applied for work at McDonald's or other comparable establishments because he believed the cost of gas to get to work, when subtracted from his earnings, would not permit him to make his $75 per week payment.

4. Earning Levels in the Community

The record contains no evidence on this point other than Wife's assertion that because Husband knew how to “manipulate the system,” he should be able to earn what he had earned at his most recent employment with the Cooley Group.

Little evidence is present of bad faith on Husband's part. While that is not determinative of the issue, it is to be...