Taylor v. Taylor

• Decision Date: 16 November 1998
• Docket Number: No. 2899.,2899.
• Citation: 333 S.C. 209,508 S.E.2d 50
• Court: South Carolina Court of Appeals
• Parties: Edwin S. TAYLOR, Appellant, v. Delores S. TAYLOR, Respondent.

333 S.C. 209

508 S.E.2d 50

Edwin S. TAYLOR, Appellant, v. Delores S. TAYLOR, Respondent.

No. 2899.

Court of Appeals of South Carolina.

Submitted October 6, 1998.

Decided November 16, 1998.

L. Mendel Rivers, Jr., of Mt. Pleasant, for appellant.

Marvin I. Oberman and Harold A. Oberman, of Oberman & Oberman, of Charleston, for respondent.

HUFF, Judge:

In this domestic action, Edwin S. Taylor (Husband) appeals from the family court's award of attorney's fees to Delores S. Taylor (Wife). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The action is before us for the second time, but represents the third time Husband has sued Wife. The parties were divorced in January 1984. An agreement between the parties settled issues of equitable distribution, alimony and child support, and was incorporated by the family court into the divorce decree.

In 1988 Husband sued Wife seeking permanent, sole custody of their minor child. In a detailed 26—page opinion, the family court ruled against Husband. It further ordered him to pay $11,183.63 of Wife's attorney's fees and costs. Husband initially appealed this decision, but ultimately asked that the appeal be dismissed.

In 1989 Husband again sued Wife, this time seeking a reduction or termination of alimony, a reduction in child support, and an allocation of the support payments between alimony and child support. The court made a number of findings with regard to Husband's credibility, including:

19. [Husband]'s financial declarations do not coincide with his testimony in Court under oath. He has consistently failed to reflect ownership interest of his parents and alleged partners in his financial declarations prepared to secure loans from institutions, while testifying to such relationships when in court.

20. While [Husband] shows a boat or boats valued at Twenty—One Thousand ($21,000.00) Dollars on his January 1, 1989 Financial Statement, he now claims it belongs to his [current] wife and that it is relatively valueless.

.....

22. [Husband] has chosen to vacillate in his testimony concerning the values of his property interests between Financial Declarations, depositions and court testimony to the extent that the credibility of his testimony is highly in doubt.

23. The evidence reflects that [Husband] is the owner of 78% of the Atlantic House Restaurant, with his mother owning 13% and his father owning 9%. This sheds no light on and makes [Husband]'s testimony of turning One Hundred Thousand ($100,000.00) Dollars of the insurance proceeds over to his mother totally illogical.¹

.....

26. [Husband] by his deceptive and deliberate efforts to mislead and manipulate the court has created a situation where he has little credibility and has worsened his dilemma by his failure to be honest and forthright.

The court further found Husband, "in spite of his alleged losses," "to be substantially wealthier" than when he divorced Wife. For a number of reasons, however, the court decreased Husband's support payments. The court also ordered Husband to pay $2,000 towards Wife's legal expenses. Although Husband appealed this order as well, the appeal was subsequently dismissed when Husband did not pursue it. Wife was thereafter awarded $1,500 under Rule 222, SCACR, in payment of appellate attorney's fees.

Husband sued Wife again in 1993, again seeking a reduction of alimony and child support, claiming he had a "negative net worth." The court declined to find a change in circumstance sufficient to justify Husband's claims. Rather, the court found Husband's real estate holdings had appreciated in value and some had been sold at a substantial profit. Husband was employed and receiving rental income and royalties.

Husband had transferred several properties to family members for a $5.00 consideration; however, the court found Husband "in reality retains a strong equitable interest in the properties and their rental income." The court concluded Husband

cannot use the "transfer" to family members, be it real or otherwise, to feign a reduction in income and personal net worth, to ask the Court to lessen his child support and alimony obligations, especially in light of the original Divorce Decree and Agreement in which [Husband] retained control of the vast majority of real property in exchange for his support obligations.

Although the court refused Husband's request for a reduction in alimony or child support, the court denied Wife's request for attorney's fees, as "[s]he did not present a case in chief for herself, but relied exclusively on a very full and detailed cross examination to disprove [Husband]'s case."

Again, Husband appealed and, again, abandoned the appeal. Wife, however, pursued an appeal of the court's attorney's fees decision. We reversed the court on this point, finding the court erred in not considering proper factors in making its decision. Taylor v. Taylor, Opinion No. 95-UP-239 (filed September 25, 1995). We remanded the case to the family court judge to receive evidence de novo to determine if attorney's fees should be awarded. We also ordered Husband to pay Wife appellate attorney's fees in excess of $750, the amount to be decided by the family court.

On remand a hearing was held during which Wife's two attorneys were examined and cross-examined. Wife's attorneys submitted affidavits, copies of bills submitted to Wife, and the parties' financial declarations. Wife also presented expert testimony on the issue of attorney's fees. The court found, among other things, that Wife had achieved beneficial results. The court also found that at the time of the fee hearing, husband still had substantially more assets and income earning potential than wife and was no longer required to pay child support. Further, Husband had instituted various actions and appealed from these actions such that, if attorney's fees were not allowed, Husband would be able to decrease wife's standard of living despite the fact he did not prevail on the merits of his cases. The court found Wife was entitled to the full amount of her attorney's fees and awarded $13,352.68 for her defense below, and $9,906.19 to cover the costs of the appeal. Husband again appeals.

LAW/ANALYSIS

In appeals from family court, this court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Ellerbe v. Ellerbe, 323 S.C. 283, 473 S.E.2d 881 (Ct.App.1996). We are not, however, required to disregard the findings of the trial judge, who saw and heard the witnesses and is in a better position to evaluate credibility. Id.

Generally, attorney's fees are not recoverable unless authorized by statute or contract. Burns v. Burns, 323 S.C. 45, 448 S.E.2d 571 (Ct.App.1994). South Carolina Code Ann. § 20-7-420(38) (Supp.1997) authorizes the family court to order payment of suit money to either party. Green v. Green, 320 S.C. 347, 465 S.E.2d 130 (Ct.App.1995). The award of attorney fees and costs is a matter within the sound discretion of the trial judge. Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct.App.1998). The award will not be reversed on appeal absent an abuse of discretion. Id. at 166, 501 S.E.2d at 739.

ATTORNEY'S FEES AND COSTS

Husband maintains generally the family court judge erred in awarding Wife the total of her requested fees. He makes the following contentions in particular.

1. Number of attorneys; number of hours; difficulty of case

Husband contends Wife did not need to employ two attorneys. This court, however, will not criticize a party for hiring more than one attorney, provided their work is not duplicated and the complexity of the case demands it. Mallett v. Mallett, 323 S.C. 141, 473 S.E.2d 804 (Ct.App.1996). Husband has not shown the attorneys duplicated services. See Josey v. Josey, 291 S.C. 26, 351 S.E.2d 891 (Ct.App.1986) (wherein court affirmed award for two attorneys where record failed to disclose duplicated attorney services, but showed clear delineation of duties). In fact, Wife has shown by hiring two attorneys, who were partners, she was actually able to incur lower attorney's fees. The less experienced attorney charged at a lower rate; he could, therefore, perform timeconsuming duties that did not require greater experience at a cheaper cost than his more-experienced, higher-priced colleague. We find no abuse of discretion.

Husband adds the attorneys spent far too many hours on the case. He complains these same attorneys were involved with the previous three cases and, thus, should not have had to spend so much time on the instant suit. We disagree.

The reasonableness of the number of hours billed is determined according to (1) the nature, extent, and difficulty of the case, and (2) the time necessarily devoted to the case. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991). Husband was the cause, in large part, of the considerable amount of time Wife's attorneys spent on this case. Because of Husband's lack of cooperation, Wife was forced to make a motion for discovery, as well as prepare a motion to compel discovery. When Husband finally responded to discovery requests, he produced boxes full of unorganized documents which contained many irrelevant materials. Wife's attorneys introduced, without objection, a letter to Husband's counsel detailing their strenuous efforts to depose Husband. Husband's deposition took 2½ hours and involved 55 exhibits. Cross-examination of Husband during trial took 2 hours and Wife's attorneys presented 40 exhibits. Because of Husband's transfers of assets, the attorneys had to review old depositions and search the public records to determine what happened to various pieces of property. They were forced to retrieve records from Husband's bank and subpoena his personal records. Without the efforts of her attorneys, Husband would have presented unchallenged testimony to the court that he had a significant negative net worth. Instead, the court found Husband to be better off financially than at the...