Semken v. Semken

• Decision Date: 08 July 2008
• Docket Number: No. 4424.,4424.
• Citation: 664 S.E.2d 493,379 S.C. 71
• Court: South Carolina Court of Appeals
• Parties: Francis M. SEMKEN, Respondent, v. Catherine A. SEMKEN, Appellant.

664 S.E.2d 493

379 S.C. 71

Francis M. SEMKEN, Respondent, v. Catherine A. SEMKEN, Appellant.

No. 4424.

Court of Appeals of South Carolina.

Heard June 3, 2008.

Decided July 8, 2008.

J. Mark Taylor, of W. Columbia, Jane Nussbaum Douglas and Natalie P. Bluestein, of Charleston, for Appellant.

Gregory A. DeLuca, of Goose Creek, J. Michael Taylor, of Columbia, for Respondent.

WILLIAMS, J.:

In this family law action, Catherine Semken (Wife) appeals the family court's order terminating Francis Semken's (Husband) obligation to pay Wife alimony, awarding Husband reimbursement alimony, and requiring Wife to pay Husband's attorney's fees and costs. We reverse and remand.

FACTS

Husband and Wife divorced in 1999. Pursuant to the final order, Husband was required to pay Wife permanent periodic alimony in the amount of $1,000 per month. In 2005, Husband brought an action to have his alimony obligation terminated pursuant to the continued cohabitation provision of section 20-3-130(B)(1) of the South Carolina Code (Supp.2007), claiming Wife and Thomas McGill (Boyfriend) had engaged in a romantic relationship and resided together for a period of more than ninety consecutive days. Wife and Boyfriend did not deny the romantic relationship, but both disputed the claim of cohabitation.

In support of Husband's assertion, he presented evidence to show Wife rented a house owned by Boyfriend in Berkeley County, South Carolina from January 2002 through July 2005. During this period, Boyfriend lived in separate residences in other counties in the state. Wife and Boyfriend acknowledged they were involved in a romantic relationship during this time period, and it was likely that over the course of their three-year relationship the couple spent more than ninety non-consecutive days together in the Berkeley County residence.

Although Wife paid Boyfriend $500 per month in rent, Wife and Boyfriend never entered into a written lease agreement. Boyfriend's mortgage payment on the residence during this time period ranged from $550 to $625 per month, but in exchange for the lesser rent, Wife did not have full access to the house. Boyfriend stored some of his belongings in one of the bedrooms of the house and kept a car in the garage.

When Wife began renting the Berkeley County residence from Boyfriend, she transferred all the utility bills into her name and made all of the payments. Boyfriend did not pay any of Wife's expenses or help her financially, although he would occasionally allow Wife to pay rent late or in installments. Boyfriend continued to pay insurance on the Berkeley County residence and its contents while Wife resided there, and he never changed the status on his homeowner's insurance policy from owner-occupied to rental-property. Wife did not have any insurance on her belongings in the residence.

When Wife moved into the Berkeley County residence, Boyfriend moved to North Augusta due to his employment. Boyfriend obtained a new driver's license reflecting his North Augusta address, and he registered to vote in Aiken County, South Carolina. However, when Boyfriend later renewed his vehicle tag, he used the Berkeley County residence address and, pursuant to the "Motor Voter" system, his voter registration was automatically reinstated in Berkeley County.

After a year in North Augusta, Boyfriend moved to Newberry County and began operating a business out of this residence. Subsequently, Boyfriend moved to Lexington County, which is where Boyfriend was living at the time he and Wife ended their romantic relationship. Following their break-up, Boyfriend allowed Wife to stay in the Berkeley County residence rent-free for the three months prior to her moving out because she lost her job and could not afford to pay rent.

Upon hearing the evidence, the family court found Husband had carried his burden of proof to show Wife and Boyfriend engaged in continued cohabitation for more than ninety days pursuant to § 20-3-130(B)(1). The family court interpreted § 20-3-130(B)(1) by applying the ordinary meaning to the word "reside" and found during their romantic relationship, Boyfriend maintained two residences, one of which was the Berkeley County residence. The family court stated, "It is clear that [Boyfriend] has not spent every night and day for [more] than 90 consecutive days with [Wife] at the Berkeley County home address but that is not what the statute requires. The statute only requires that [Boyfriend] `reside' there at the same time with [Wife]." The family court further found despite Wife and Boyfriend not spending more than ninety consecutive days and nights under the same roof, "they both claimed the Berkeley County home as a residence at the same time, spent a considerable amount of time together, were romantically involved, and claimed the same home as a residence." The family court additionally stated, "It is critical to this decision to note that if [Wife] had moved into an apartment owned by someone else (or even an identified rental property owned by [Boyfriend]) rather than one of [Boyfriend's] `residences,' there would have been a different outcome."

Based on these findings, the family court terminated Husband's obligation to pay Wife alimony. The family court further ordered Wife to reimburse Husband for the alimony payments made from November 2005 through July 2006. Additionally, the family court required Wife to pay $10,000 towards Husband's attorney's fees. This appeal follows.

STANDARD OF REVIEW

"On appeal from the family court, this [C]ourt has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence." Henggeler v. Hanson, 333 S.C. 598, 601-02, 510 S.E.2d 722, 724 (Ct.App.1998). A preponderance of the evidence stated simply is that evidence which convinces as to its truth. Frazier v. Frazier, 228 S.C. 149, 168, 89 S.E.2d 225, 235 (1955). Despite this broad scope of review, this Court is not required to disregard the family court's findings. Doe v. Roe, 369 S.C. 351, 359, 631 S.E.2d 317, 321 (Ct.App.2006). This Court remains mindful the family court saw and heard the witnesses, placing it in a better position to evaluate their credibility and assign comparative weight to their testimony. Id.

LAW/ANALYSIS

I. Termination of Alimony Pursuant to § 20-3-130(B)(1)

Wife begins by arguing the family court erred in finding Wife engaged in continued cohabitation with Boyfriend and, therefore, erred in terminating alimony. We agree.

Section 20-3-130(B)(1) allows for the termination of periodic alimony upon "the remarriage or continued cohabitation of the supported spouse...." The statute states:

For purposes of this subsection and unless otherwise agreed to in writing by the parties, "continued cohabitation" means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

§ 20-3-130(B).

The South Carolina Supreme Court recently addressed the issue of terminating a husband's alimony obligation due to the wife's continued cohabitation with another man pursuant to section 20-3-150 of the South Carolina Code (Supp.2007). Section 20-3-150 calls for any award of alimony to the spouse retaining custody of the couple's children to cease upon the remarriage or continued cohabitation of the supported spouse. Section 20-3-150 further states:

For purposes of this subsection and unless otherwise agreed to in writing by the parties, "continued cohabitation" means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

When interpreting this language, the South Carolina Supreme Court found "the phrase `resides with' ... sets forth a requirement that the supported spouse live under the same roof as the person with whom they are romantically involved for at least ninety consecutive days." Strickland v. Strickland, 375 S.C. 76, 89, 650 S.E.2d 465, 472 (2007) (emphasis added). The Supreme Court reasoned that "[a]ny other interpretation essentially takes the `cohabitation' out of `continued cohabitation.'" Id.

The statute in question in the current case, § 20-3-130(B)(1), contains the same language as § 20-3-150 defining "continued cohabitation." Thus, the Supreme Court's interpretation of that language controls this Court's determination of whether Wife and Boyfriend engaged in continued cohabitation for ninety or more consecutive days.

In the case at hand, the family court addressed the meaning of "continued cohabitation" prior to the Supreme Court's decision in Strickland, focusing on the definition of "residence." The family court stated it was applying the ordinary meaning of the word "reside" to the statute.

Applying this interpretation to Wife and Boyfriend's situation, the family court found Boyfriend "maintained two residences" during their relationship, one of which was the Berkeley County home where Wife resided. The family court stated, "It is clear that [Boyfriend] has not spent every night and day for [more] than 90 consecutive days with [Wife] at the Berkeley County home address but that is not what the statute requires. The statute only requires that [Boyfriend] `reside' at the same time with [Wife]." The family court further emphasized this interpretation by stating,

[E]ven though [Wife] and [Boyfriend] did not spend more than 90 consecutive days...