Schadel v. Schadel, 20339

• Decision Date: 05 January 1977
• Docket Number: No. 20339,20339
• Citation: 268 S.C. 50,232 S.E.2d 17
• Court: South Carolina Supreme Court
• Parties: Calvin B. SCHADEL, Appellant, v. Barbara Ann SCHADEL, Respondent.

Page 17

232 S.E.2d 17

268 S.C. 50

Calvin B. SCHADEL, Appellant, v. Barbara Ann SCHADEL, Respondent.

No. 20339.

Supreme Court of South Carolina.

Jan. 5, 1977.

Jan L. Warner, of Weinberg, Warner, Brown & McDougall, Sumter, for appellant.

Joseph T. McElveen, Jr., of Bryan, Bahnmuller, King, Goldman & McElveen, Sumter, for respondent.

GREGORY, Justice:

Calvin Schadel appeals orders of February 5, 1975, January 22, 1976 and March 10, 1976 by C. L. Cuttino, Jr., Judge, Family Court of Sumter County; appellant also appeals an order of March 14, 1975 by Bernard J. Warshauer, Acting Judge, Family Court of Sumter County.

At issue is the lower court's treatment of child support payments, of contempt of court by Schadel's former wife, and of suit money and attorneys' fees.

Schadel and his former wife, Barbara Schadel, entered into a property and support agreement in March of 1973, after Schadel had sued for divorce on grounds of three years separation. The agreement provided for visitation, custody, and lumpsum alimony and required Schadel to pay $400.00 per month child support, allocated at $133.33 per child. On June 14, 1973 the Family Court of Sumter County granted the divorce and incorporated the Schadels' agreement in the court's order.

In January of 1975 Schadel petitioned the family court to reduce his support payments and to hold Mrs. Schadel in contempt for her denial of his visitation attempts. Schadel claimed that respondent had violated the divorce decree of June 1973 and an order of August 1974, both of which granted specific visitation rights. After a hearing Judge Warshauer, acting as family court judge, ordered that (1) Schadel's payments be reduced to $250.00 per month, (2) Mrs. Schadel not be held in contempt, and (3) Mrs. Schadel's attorney be given $150.00 'suit money' for his preparation and appearance at the hearing. The order was dated March 14, 1975 and was to remain in effect until a more complete hearing could be held.

Judge Warshauer, sitting as master in equity, then held a full hearing on the merits of the case in July of 1975. His October 1, 1975 report recommended that (1) Schadel's payments be increased to $300.00 per month, (2) Mrs. Schadel be 'directed' to encourage the children to visit with Schadel (the report did not recommend contempt), and (3) Mrs. Schadel's attorney be given $250.00 in addition to the $150.00 already ordered. From March up until the time of the report, Schadel apparently paid $250.00 per month in support.

Responding to exceptions to the report of the master, Judge Cuttino in his January 22, 1976 order (1) increased support to $475.00 per month, (2) directed Schadel to pay $200.00 arrears for February 1975, in which Schadel had reduced his payment from $400.00 to $200.00, (3) further directed Schadel to pay $150.00 arrears for each month from March 1975 through January 1976, (4) warned Mrs. Schadel that any future failure to abide by visitation provisions of the 1973 divorce decree would be 'severely dealt with' (the judge did not find her in contempt), and (5) increased the award of the attorneys' fees to $1,125.00.

Appellant petitioned the family court to stay parts of its January order and to reduce support payments. On March 10, 1976 Judge Cuttino ordered the following: (1) that support be reduced back to $400.00 per month; and (2) that the January orders as to attorneys' fees and arrearages be stayed pending the resolution of the appeal to this Court.

Appellant's first argument is that the $400.00 per month support payment is unreasonable. On the contrary, the $400.00 per month is more than fair to Schadel. Annually, Schadel receives $10,613.04 from the United States Air Force and $1,632.00 from the Veterans Administration. This amounts to $12,245.04 per year from which he pays $4,800.00 at the present time as support for his three daughters. Additionally, the present Mrs. Schadel (whom he married in July of 1973) has an annual net income of $8,476.52. Respondent's annual net income is $7,392.00. This added to the $4,800.00 she has been receiving for child support totals $12,192.00 to support four people, including one attending college. Schadel requested the reduction in support because of his impending separation from the Air Force. However, the evidence shows that Schadel anticipated this separation when he entered into the agreement with his former wife. We uphold the $400.00 per month finding by the lower court.

Appellant next argues that the lower court erred in imposing arrearages of $150.00 per month for child support for the months of March 1975 through January 1976. With this we agree. During these months Schadel paid what the court ordered him to pay. The lower court did, however, properly exact from appellant $200.00 in arrears for the month in which he voluntarily cut his payments (February 1975). Appellant acknowledges his obligation to pay the $200.00.

With respect to child support Schadel also argues that Article 17, Section 14 of the South Carolina Constitution absolves him from supporting his children after they reach the age of 18 years. We do not reach this issue in view of the March 1973 agreement between the...