Weller v. Weller

Citation434 S.C. 530,863 S.E.2d 835
Decision Date18 August 2021
Docket NumberOpinion No. 5847,Appellate Case No. 2018-000809
Parties Bradley WELLER, Appellant, v. Gail WELLER, Respondent.
CourtCourt of Appeals of South Carolina

Everett Guy Ballenger, of Barth, Ballenger & Lewis, LLP, of Florence; Allen Mattison Bogan, of Columbia, and Miles Edward Coleman, of Grenville, both of Nelson Mullins Riley & Scarborough, LLP, all for Appellant.

Nancy H. Bailey, of Law Office of Nancy H. Bailey, of Florence; and Marian Dawn Nettles, of Nettles Turbeville & Reddeck, of Lake City, both for Respondent.

WILLIAMS, J.:

In this family matter, Bradley Weller (Husband) appeals the family court's order denying his request to terminate or modify alimony. Husband argues the court erred in (1) finding he did not show a substantial change in circumstances justifying termination or modification of alimony, (2) relying on inadmissible and irrelevant facts in making its determination, and (3) awarding Gail Weller (Wife) attorney's fees. We affirm.

FACTS/PROCEDURAL HISTORY

Husband and Wife married on December 27, 1989, and they had two daughters. On January 21, 2004, after fifteen years of marriage, the family court granted the parties a divorce on the ground of one year's continuous separation.

In the family court's order (2004 Decree), the court approved and adopted the parties’ written property and separation agreement (Agreement) "in each and every particular." Under the Agreement, Wife had sole custody of the parties’ two daughters; Husband received visitation; Husband agreed to pay Wife $1,500 per month in child support; and Wife was entitled to twenty-five percent of Husband's annual bonus, up to a total of $10,000.00 each year.1 The Agreement also provided Husband would pay Wife $2,000 each month in permanent periodic alimony and $400 per month in rehabilitative alimony for eighteen months.

Husband and Wife also submitted financial declarations to the court. Wife's 2004 financial declaration stated she had a monthly gross income of $2,120 and had $6,665.99 in monthly expenses. Wife's monthly gross income included her salary from teaching part-time and working at a local coffee shop part-time. Husband's 2004 financial declaration stated his monthly gross income was $13,080 and his monthly expenses were $4,683.50.

In its 2004 Decree, the family court stated Husband's $2,000 alimony obligation under the Agreement was predicated on Wife's income being $281 per month—the amount she earned each month working at the coffee shop—rather than the $2,120 she reported as her gross monthly income. According to the parties’ testimony and the 2004 Decree, Wife's employment as a substitute teacher was only supposed to last a few months after the divorce. The 2004 Decree stated the following pertinent language:

[W]ife's financial declaration reflects that she earns $2,180.00 per month.[2 ] However, it was announced that the Agreement of the parties was based on the wife's income of $281.00 per month .... The wife's monthly income and basis of the terms of this Agreement for any future actions between the husband and wife regarding the wife's income is income of $281.00 per month and no other income, or projected income .

(emphasis added). On June 19, 2017, Husband filed a summons and complaint alleging a change in Wife's circumstances and seeking termination or a reduction of alimony. Husband's primary argument was that Wife was now employed full-time as a teacher and that her income substantially exceeded $281 per month.

On January 23, 2018, at the final hearing, Wife testified regarding her education and employment history. At the time the parties met, Wife was in school studying to obtain her Master's degree. She never achieved this degree because the parties married and Husband's employment relocated the family to Tacoma, Washington. At the time of this transfer, Wife was pregnant with the parties’ first child, and she and Husband decided she would no longer work. Both parties testified Wife did not work during their fifteen-year marriage until after they separated. During the marriage, Husband's job relocated the family from Tacoma, Washington to Hartsville, South Carolina and then to the country of Belgium. Shortly after relocating to Belgium, Husband entered into an extramarital affair with a coworker and requested Wife and the children return to the United States.

Regarding her employment, Wife explained that she was approached about teaching at a college but was unqualified because she did not have her Master's degree. Back in Hartsville, Wife worked part-time at Trinity Collegiate School when the parties divorced, but her job eventually turned into full-time employment in 2006. She earned roughly $28,000 that year. Wife's salary increased annually, reaching approximately $37,000 in 2015. In 2016, Wife moved to Denver, Colorado, to be closer to a daughter from a previous marriage. In Denver, Wife worked as a full-time teacher at Saint Elizabeth's School, and her salary at the time of the final hearing was approximately $28,000.3 Wife testified "it would[ not] be easy" to maintain her standard of living if alimony were terminated or decreased, "but it could be done." Moreover, Wife introduced evidence of Husband's extramarital affair and the family's several relocations due to Husband's job. Wife also sought to introduce a letter Husband wrote to his paramour. Husband's paramour sent the letter, along with a picture of herself with Husband, to Wife, gloating over the parties’ divorce. The family court admitted the letter over Husband's objection.

The parties also filed updated financial declarations at the final hearing. In his 2018 financial declaration, Husband reported a monthly gross income of $21,770.69, and Wife reported a monthly gross income of $3,987.83, excluding her alimony. Wife's gross monthly income included $2,333.33 in wages, $187.50 in overtime and bonuses, and $1,467 in pension disbursements from Husband's pension.4 The 2018 declarations also reported Husband had monthly expenses of $19,500.42 and Wife had monthly expenses of $4,962.80. Wife further reported that she had $9,000 in a personal savings account, $47,120.24 in a voluntary retirement account, and $74,791 of equity in real property.

In its final order (2018 Order), the family court found Husband failed to show Wife's circumstances had changed substantially or materially to warrant termination or a reduction of alimony. The family court specifically found the parties contemplated that Wife would return to full-time employment "because she ... was employed at the time of the [2004 Decree]." The family court also awarded Wife $3,000 in attorney's fees. Husband filed a motion to alter or amend the judgment pursuant to Rules 52, 59(e), and 60, SCRCP, which the family court denied. This appeal followed.

ISSUES ON APPEAL

I. Did the family court err in finding Husband failed to show a substantial or material change in Wife's circumstances that justified terminating or modifying alimony?

II. Did the family court err in admitting evidence of Husband's extramarital affair, the family's several relocations, and Husband's letter to his paramour?

III. Did the family court err in awarding Wife attorney's fees?

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). On appeal from the family court, this court reviews factual and legal issues de novo, with the exceptions of evidentiary and procedural rulings. See Stone v. Thompson , 428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019) ; Stoney v. Stoney , 422 S.C. 593, 594 n.2, 596, 813 S.E.2d 486, 486 n.2, 487 (2018) (per curiam). Therefore, this court may find facts in accordance with its own view of the preponderance of the evidence. Posner v. Posner , 383 S.C. 26, 31, 677 S.E.2d 616, 619 (Ct. App. 2009). However, this broad scope of review does not prevent this court from recognizing the family court's superior position to evaluate witness credibility and assign comparative weight to testimony. Lewis , 392 S.C. at 392, 709 S.E.2d at 655. The appellant maintains the burden of convincing the appellate court that the family court's findings were made in error or were unsubstantiated by the evidence. Posner , 383 S.C. at 31, 677 S.E.2d at 619.

Evidentiary and procedural rulings are reviewed for an abuse of discretion. Stoney , 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2. "An abuse of discretion occurs when the family court's decision is controlled by some error of law or whe[n] the order, based upon findings of fact, is without evidentiary support." Gartside v. Gartside , 383 S.C. 35, 42, 677 S.E.2d 621, 625 (Ct. App. 2009).

LAW/ANALYSIS
I. Alimony Termination/Modification

Husband asserts the family court erred in failing to terminate or reduce alimony. Specifically, Husband contends Wife's income substantially exceeds the stipulated income of $281 imputed to wife for any future actions between the parties based on the Agreement. We disagree.

The purpose of alimony is to place the supported spouse in the same position he or she enjoyed during the marriage. Allen v. Allen , 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001). Permanent, periodic alimony is a substitute for support that is normally incidental to marriage. Johnson v. Johnson , 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988). However, alimony is subject to termination or modification upon a showing of changed circumstances. S.C. Code Ann. § 20-3-170 (2014) ; Miles v. Miles , 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct. App. 2003). To justify termination or modification of a spouse's alimony, the change in circumstances must be substantial or material. Miles , 355 S.C. at 519, 586 S.E.2d at 140. Additionally, the change must be unanticipated. Butler v. Butler , 385 S.C. 328, 336, 684 S.E.2d 191, 195 (Ct. App. 2009). "Many of the same considerations relevant to the initial setting of an alimony award may be applied in the...

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