Scherba v. Scherba

• Court: South Carolina Court of Appeals
• Writing for the Court: THOMAS, J.
• Docket Number: 6128,Appellate Case 2023-000949
• Decision Date: 14 January 2026
• Citation: Scherba v. Scherba, 6128, Appellate Case 2023-000949 (S.C. App. Jan 14, 2026)
• Parties: Heather L. Scherba, Respondent-Appellant, v. Ronald A. Scherba, Appellant-Respondent.

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Heather L. Scherba, Respondent-Appellant, v. Ronald A. Scherba, Appellant-Respondent.

No. 6128

Appellate Case No. 2023-000949

Court of Appeals of South Carolina

January 14, 2026

Heard September 9, 2025

Appeal From Lexington County FitzLee H. McEachin, Family Court Judge

Carrie A. Warner, of Columbia, for Appellant/Respondent.

Yulee E. Harrelson, of Columbia, and Leslie T. Sarji, of Sarji Law Firm, of Charleston, both for Respondent/Appellant.

THOMAS, J.

In this cross-appeal from a divorce decree involving Heather L Scherba (Wife) and Ronald A. Scherba (Husband), Husband appeals, arguing the family court erred in (1) awarding Wife alimony and (2) including nonmarital restricted stock units (RSUs^[1]) as income in its alimony and child support calculations. Wife appeals, arguing the family court erred in failing to award her attorney's and other fees. We affirm in part and reverse in part.

FACTS

Husband and Wife married in 1999 and have two children. They separated on August 1, 2020, and Wife commenced this action. Husband answered and counterclaimed. By temporary order, the family court determined Husband's gross monthly income was $25,286 and ordered him to pay $3,000 per month in child support and $3,000 per month in alimony. The court later denied Husband's motions for reconsideration and requests for litigation-cost and living-expense advances, finding he could meet his needs by selling nonmarital Google restricted stock units (RSUs).^[2] In addition, Husband amended his answer and counterclaim, seeking a divorce based on the ground of one-year of continuous separation, imputation of income to Wife, equitable division of assets and debts, and attorney's fees and costs, among other relief.

The final hearing occurred over four days in February 2023. The parties testified they lived frugally during the marriage typically spending approximately $3,500 per month and carrying little debt. Husband worked in the information technology (IT) field and was employed by Google from 2019 until 2023. At the time of trial, he was unemployed but was seeking positions with comparable employers, including Microsoft and Meta. Wife is licensed to practice law in Pennsylvania and served in the United States Air Force (USAF) Judge Advocate General Corps (JAG). By agreement of the parties, she left active duty in 2014 to focus on raising the children. She continued to serve as an Individual Mobilization Augmentee, requiring approximately 4.5 weeks of duty annually. Wife reported income of $77,214 in 2022 and had been promoted from Major to Colonel.

Wife testified regarding her reserve income, monthly expenses, and limited job-search efforts. She acknowledged her income fluctuated month to month and that her financial declarations from 2020 through 2022 reflected expenses ranging from $6,439 to $10,016. Wife also conceded she had not explored full-time civilian employment, federal employment, admission to the South Carolina Bar, legal opportunities in Georgia where her license held reciprocity, or returning to active duty. Although one child had exhibited behavioral issues in the past, Wife's mental-health expert testified the child required only periodic check-ins and that parents of similarly diagnosed children often work full-time.

Husband presented testimony from CPA Christopher Leventis, who testified the temporary orders strained Husband's finances and necessitated the sale of nonmarital RSUs. Leventis estimated Wife's average monthly expenses to be approximately $8,179. Husband also presented vocational rehabilitation expert Joel Leonard, who estimated Wife's civilian earning capacity at $101,200 annually. Husband testified he sold approximately 33,000 nonmarital RSUs to pay legal expenses and was applying for IT positions with expected salaries between $100,000 and $175,000. Wife's expert, CPA Richard Livingston, testified Husband's RSUs were reported as compensation on his pay statements and tax documents and became liquid upon vesting and deposit into his Charles Schwab account. Livingston opined vested RSUs constituted income available for support.

The parties stipulated to the characterization and distribution of Husband's marital and nonmarital RSUs and agreed to an equal division of the marital estate. Husband was granted a divorce on the ground of one-year continuous separation. The marital estate had a gross value of more than $1.7 million with each party receiving net distributions exceeding $800,000. Wife retained her nonmarital Thrift Savings Plan and military pension, and Husband retained approximately $90,000 in nonmarital RSUs.

The family court found Wife overstated some expenses and determined her average monthly expenses to be $8,079. The court declined to impute civilian earnings to Wife but found her promotion to Colonel warranted an 11% income increase, resulting in annual income of $85,960. Prior to setting support awards, the court again emphasized Husband had been terminated from Google and had not, at that time, obtained new employment. In determining gross compensation per month, the court found "[Husband's] gross compensation from Google from his severance includes principal earnings, bonus, RSUs, and seed money from group life and a health savings account all totaling $33,000 gross per month."

Ultimately, the court ordered Husband to pay $1,500 per month in permanent periodic alimony. The court held "[t]his alimony is modifiable in the future based on a substantial and material change in circumstances." Husband was ordered to pay child support in the amount of $3,125 per month. In determining the alimony award, the family court considered the factors set forth in section 20-3-130 of the South Carolina Code.^[3] The court declined to award attorney's fees to either party. Husband's motion to reconsider was denied, and this appeal followed.

STANDARD OF REVIEW

"Appellate courts review family court matters de novo, with the exceptions of evidentiary and procedural rulings." Stone v. Thompson, 428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019). Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 65152 (2011). "The appellant bears the burden of convincing the appellate court that the family court committed error or the preponderance of the evidence is against the family court's findings." Greene v. Greene, 439 S.C. 427, 439-40, 887 S.E.2d 157, 164 (Ct. App. 2023).

LAW/ANALYSIS

A. Husband's Appeal

1. Alimony

Husband argues the family court erred in awarding Wife permanent periodic alimony based on her capable earnings, education, and qualifications. We agree.

"Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage." Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014) (quoting Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001)). "Alimony should not dissuade a spouse, to the extent possible, from becoming self-supporting." Rimer v. Rimer, 361 S.C. 521, 525, 605 S.E.2d 572, 574 (Ct. App. 2004). Alimony is based on both the supporting spouse's ability to pay and the supported spouse's demonstrated need. See Carter v. Carter, 443 S.C. 585, 608, 905 S.E.2d 405, 417 (Ct. App. 2024), cert. denied (Mar. 12, 2025) (affirming an award of alimony where the evidence indicated Wife's need and Husband's ability to pay).

"[I]t is proper to consider a supported spouse's earning capacity and impute income to a spouse who is underemployed or unemployed." Marchant v. Marchant, 390 S.C. 1, 9-10, 699 S.E.2d 708, 713 (Ct. App. 2010). "[T]he common thread in cases where actual income versus earning capacity is at issue is that courts are to closely examine the [party's] good-faith and reasonable explanation for the decreased income." Kelley v. Kelley, 324 S.C. 481, 489, 477 S.E.2d 727, 731 (Ct. App. 1996).

Based on our own view of the preponderance of the evidence, we find Wife is not entitled to alimony. Our courts have consistently emphasized that alimony is intended to provide the supported spouse with a substitute for the support incidental to the marital relationship. In Hawley v. Hawley, 363 S.C 318, 323, 610 S.E.2d 309, 312 (Ct. App. 2005) and Cohen v. Cohen, 438 S.C. 9, 15-16, 881 S.E.2d 650, 653 (Ct. App. 2022), this court stated that alimony should place the supported spouse, as nearly as practical, in the same position they enjoyed during the marriage. Similarly, in Rudick v. Rudick, 437 S.C. 270, 278-79, 878 S.E.2d 686, 690 (2022), our supreme court noted that the objective of alimony is to ensure the parties separate on as equal a basis as possible, considering the supported spouse's needs and the supporting spouse's ability to pay. Here, it was established, and the court agreed as such, that the parties lived a middle-class standard of living. Each testified that they did not spend lavishly, they purchased their home in 2016 for approximately $300,000, they carried little to no debt, and they opted to save/invest throughout their marriage. Because of Husband's support obligations, Wife's standard of living improved. See Myers v. Myers, 391 S.C. 308, 315, 705 S.E.2d 86, 90 (Ct. App. 2011) ("[I]t is error to award [a spouse] permanent alimony substantially in excess of her needs."); McElveen v. McElveen, 332 S.C. 583, 600, 506 S.E.2d 1, 10 (Ct. App. 1998), disapproved of on other grounds by Wooten v. Wooten, 364 S.C. 532, 615 S.E.2d 98 (2005) (reducing the husband's monthly alimony obligation from $11,000 per month to...