Smith v. DeLaney, 0538

• Decision Date: 21 May 1985
• Docket Number: No. 0538,0538
• Citation: 334 S.E.2d 821,286 S.C. 583
• Parties: Jennifer S. SMITH, Appellant-Respondent, v. Gary A. DeLANEY, Respondent-Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 821

334 S.E.2d 821

286 S.C. 583

Jennifer S. SMITH, Appellant-Respondent, v. Gary A. DeLANEY, Respondent-Appellant.

No. 0538.

Court of Appeals of South Carolina.

Heard May 21, 1985.

Decided Aug. 20, 1985.

Thomas B. Bryant, III, of Bryant, Fanning & Yarborough, Orangeburg, for appellant-respondent.

Karen J. Williams, of Williams & Williams, Orangeburg, for respondent-appellant.

CURETON, Judge.

This is an appeal from an order of child support. The father, an anesthesiologist with very substantial income, denies the mother's contention that the court-ordered support of $750 per month is inadequate to support the three minor children in her custody. We find it inadequate and remand for a determination of adequate support.

The record reveals the mother's efforts to secure adequate support for the three children, now ages twelve, nine and seven, have been stymied by five and a half years of litigation. The initial order of support, entered in November 1979, provided that the father pay the house note of $580 a month for the benefit of the mother and children and $1100 per month in unallocated support for them. The mother appealed, contending the support order was inadequate. In May, 1982, the South Carolina Supreme Court found the amount ordered inadequate and remanded the case for a determination of adequate support. Delaney v. Delaney, 278 S.C. 55, 293 S.E.2d 304 (1982).

At the remand hearing, upon evidence the mother had remarried and was no longer entitled to alimony, the court modified its order to provide support of $750 per month for the three children. The court also ordered the father to spend at least $900 annually on the children's clothing and extracurricular activities, and to establish a trust fund at the rate of $150 a month for their extraordinary needs.

The evidence before the family court at that time revealed that the father was an anesthesiologist in private practice who earned net monthly income of $5,146.67. He had remarried. He listed monthly expenses of $6,857.11 and assets of $70,560.00. A reasonable conclusion from the evidence before us is that the father had additional income and assets which he was sheltering.

On the other hand, the mother was a homemaker who was expecting her fourth child. Although she worked to support the family while the father attended medical school, she had primarily been a homemaker since he graduated. She was unemployed and had assets of $25,575, derived for the most part from the division of the marital property. She testified that the children needed support of $1,740 per month from their father. The court ordered that the father pay only $750 of this amount.

We hold that the trial court erred as a matter of law in failing to follow the mandate of the Supreme Court to increase the support and in making certain findings of fact and conclusions of law not warranted by the evidence.

The Supreme Court held that the support ordered in November 1979 was inadequate. Delaney, 278 S.C. at 55, 293 S.E.2d at 304. That support consisted of $580 a month for housing and $1100 a month for other expenses. Assuming the trial court decided that fifty percent of the $1680 support ordered in 1979 was attributable to the mother's support, a decision which the evidence does not support, the three children would have shared support of $840 without any increase at all. It is apparent that instead of increasing the support, the trial court actually reduced it to $750 a month.

We are cognizant that the court ordered the father to contribute at least $900 a year for clothing and extracurricular activities for the children. This type of order, however, does little to provide for the ongoing needs of the children. The father could choose to withhold the expenditure until the end of the year while the needs themselves cannot be held in abeyance. Moreover, the father could choose to spend it all on any extracurricular activity he saw fit, leaving the custodial parent to grapple with supplying the mundane need for shelter, food, clothing and transportation. For these reasons, we cannot consider the provision that the father contribute the $900 as present support.

It is equally clear that the order that the father pay $150 a month into a trust fund for "extraordinary" expenses of the children is not present support and cannot be considered in determining the adequacy of the support. Family court judges are urged to consider the fact that the custodial parent needs to know with some certainty the amount of support he or she can expect to receive on a regular basis so that the parent can make a financial plan for the family. Their orders should, therefore, provide for regularity and specificity of a given amount of support to meet specific needs.

In this context, we point out...