Srivastava v. Srivastava

Decision Date23 December 2014
Docket NumberNo. 5287.,5287.
Citation769 S.E.2d 442,411 S.C. 481
CourtSouth Carolina Court of Appeals
PartiesJane SRIVASTAVA, Appellant, v. Ravindra SRIVASTAVA, Respondent. Appellate Case No. 2013–000344.

Jane Srivastava, of Hilton Head Island, Pro Se.

H. Fred Kuhn Jr., of Moss Kuhn & Fleming, P.A., of Beaufort, for Respondent.

Opinion

GEATHERS, J.

In this divorce action, Jane Srivastava (Wife) appeals the family court's final order. Wife argues the family court erred by (1) failing to either impute income to Ravindra Srivastava (Husband) or deviate from the Child Support Guidelines in its child support award, (2) giving credit to Husband for excess child support payments, (3) awarding Husband attorney's fees, (4) not awarding Wife attorney's fees, (5) dividing the marital property in an inequitable manner, (6) finding Husband did not condone Wife's adultery, (7) denying Wife alimony, and (8) rendering a partial and biased decision. We affirm in part, reverse in part, and remand.

ISSUES ON APPEAL
I. Did the family court err by failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award?
II. Did the family court err in giving credit to Husband for excess child support payments?
III. Did the family court err in awarding Husband attorney's fees and not awarding Wife attorney's fees?
IV. Did the family court err in finding Husband did not condone Wife's adultery, and, thus, err in denying Wife alimony?
V. Did the family court err in dividing the marital property in an inequitable manner?
VI. Did the family court fail to render an impartial and nonbiased decision?
STANDARD OF REVIEW

“The family court is a court of equity.” Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the appellate court reviews factual and legal issues de novo.

Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) (citations omitted). De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the [family] court's findings.” Lewis, 392 S.C. at 390, 709 S.E.2d at 654–55. However, this broad scope of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court was in a better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of convincing this court that the family court erred in its findings. Id. at 387–88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the family court unless its decision is controlled by some error of law or the appellant satisfies the burden of showing that the preponderance of the evidence actually supports contrary factual findings by this court. See Lewis, 392 S.C. at 390–91, 709 S.E.2d at 654–55.

LAW/ANALYSIS

Wife argues the family court erred in its final order for several reasons. We address each issue in turn.

I. Did the family court err by failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award?

Wife argues the family court erred in its child support determination by failing to (a) impute income to Husband, or (b) deviate from the Child Support Guidelines to award a larger sum of child support. Husband asserts these arguments are not preserved. We agree with Husband.

“To preserve an issue for appellate review, the issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [family] court.” Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 (Ct.App.2006). “Therefore, when an appellant neither raises an issue at trial nor [files] a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate review.” Id. at 212, 634 S.E.2d at 54–55.

In Marchant v. Marchant, the wife alluded to the fact that the husband was capable of earning more in the final hearing, but she did not request a finding that the husband was voluntarily underemployed for the purpose of imputing income. 390 S.C. 1, 7, 699 S.E.2d 708, 711 (Ct.App.2010). Furthermore, the family court did not rule on the issue of income imputation. Id. This court determined that the wife was required to file a Rule 59(e) motion to seek a ruling on that point, and she failed to do so. Id. Because income imputation was not raised to and ruled upon by the family court, this court found the issue was unpreserved. Id. at 7, 699 S.E.2d at 711–12.

Likewise, here, Wife failed to raise the issues of income imputation and deviation from the Child Support Guidelines to the family court, and she never filed a Rule 59(e) motion for the family court to consider these issues. Because Wife failed to do so, these arguments are not preserved for appellate review. See id.; Doe, 370 S.C. at 212, 634 S.E.2d at 54–55.

II. Did the family court err in giving credit to Husband for excess child support payments?

Wife argues the family court erred in giving credit to Husband for overpayment of child support. Husband argues this issue is unpreserved. We agree with Husband.

Similar to the first issue, Wife did not file a Rule 59(e) motion to reconsider this ruling after the family court issued its final order. Therefore, we find this issue is also unpreserved. See, e.g., Bennett v. Rector, 389 S.C. 274, 284, 697 S.E.2d 715, 720 (Ct.App.2010) (“When a party receives an order that grants certain relief not previously contemplated or presented to the trial court, the aggrieved party must move, pursuant to Rule 59(e), SCRCP, to alter or amend the judgment in order to preserve the issue for appeal.” (quoting In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct.App.1998) )); id. (finding that when the family court made the child support award retroactive in its order, the mother needed to raise the issue in a Rule 59(e) motion to preserve her argument on appeal).

III. Did the family court err in awarding Husband attorney's fees and not awarding Wife attorney's fees?

Wife argues the family court erred in awarding Husband attorney's fees in the amount of $50,000 because Husband earns a substantially higher income than Wife. Wife maintains that she should have been awarded attorney's fees instead. We find the family court erred, as the evidence does not support the attorney's fees awarded to Husband.

Section 20–3–130(H) of the South Carolina Code (2014) authorizes the family court to order payment of litigation expenses to either party in a divorce action. “An award of attorney's fees rests within the sound discretion of the trial [court] and should not be disturbed on appeal absent an abuse of discretion.” Doe v. Doe, 319 S.C. 151, 157, 459 S.E.2d 892, 896 (Ct.App.1995) (citation omitted).

In deciding whether to award attorney's fees and costs, a family court should first consider the following factors as set forth in E.D.M. v. T.A.M.: (1) each party's ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties' respective financial conditions; and (4) the effect of the fee on each party's standard of living.” Farmer v. Farmer, 388 S.C. 50, 57, 694 S.E.2d 47, 51 (Ct.App.2010) (citing E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992) ). Then, if the family court decides to award attorney's fees to a particular party, the family court should weigh the following factors as set forth in Glasscock v. Glasscock in considering how much to award in attorney's fees and costs: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.” Id. (citing Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) ).

In Rogers v. Rogers, our supreme court found the family court's award of attorney's fees to the husband was excessive because the award represented approximately 16% of the wife's annual income. 343 S.C. 329, 334, 540 S.E.2d 840, 842 (2001). In remanding the issue of attorney's fees to the family court, the supreme court emphasized, “A party's ability to pay is an essential factor in determining whether an attorney's fee should be awarded, as are the parties' respective financial conditions and the effect of the award on each party's standard of living.” Id. (citing Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993) ).

Here, the family court generally acknowledged in its final order that it considered the four factors in E.D.M. v. T.A.M. in deciding whether to award attorney's fees. The family court then referenced its application of the Glasscock factors in determining how much to award in attorney's fees. While the family court's decision to award attorney's fees is generally within its discretion, Doe, 319 S.C. at 157, 459 S.E.2d at 896, we find the award of $50,000 in attorney's fees to Husband is excessive and an abuse of discretion.

As in Rogers, we have compared the award of attorney's fees to Wife's annual income. According to the family court's order, Wife has a gross annual income of $55,260.1 Applying this number to the award of attorney's fees, the $50,000 award here represents approximately 90% of Wife's gross annual income.2 And, although the family court generally referenced the E.D.M. factors, the income-to-attorney's fees ratio makes it apparent that the family court did not sufficiently consider each party's ability to pay, their respective financial conditions, and the effect of the award on each party's standard of living. See Rogers, 343 S.C. at 334, 540 S.E.2d at 842 ; Sexton, 310 S.C. at 503, 427 S.E.2d at 666 (noting a party's ability to pay is an “essential” factor in determining an award of attorney's fees); Spreeuw v. Barker, 385 S.C. 45, 72, 682 S.E.2d 843, 857 (Ct.App.2009) (stating this court “would...

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