Woodside v. Woodside

Decision Date17 September 1986
Docket NumberNo. 0816,0816
Citation350 S.E.2d 407,290 S.C. 366
CourtSouth Carolina Court of Appeals
PartiesShirley M. WOODSIDE, Appellant-Respondent, v. Archie G. WOODSIDE, Jr., Respondent-Appellant. Shirley M. WOODSIDE, Respondent, v. Archie George WOODSIDE, Jr., Appellant. Shirley McRoberts WOODSIDE, Appellant, v. Archie George WOODSIDE, Respondent. . Heard

Edmund H. Monteith, of Monteith & Monteith, Columbia, for appellant-respondent.

Robert L. Hallman, Columbia, for respondent-appellant.

CURETON, Judge:

This divorce action involves three appeals. Both parties appeal a 1984 divorce decree with respect to alimony, child support, equitable distribution and attorney fees. Both parties petitioned the Supreme Court for supersedeas. The Court refused supersedeas, but remanded the case to the family court to address the matter of mortgage payments during the pendency of the appeal. On remand the family court issued its order which was in turn appealed by the husband. The third appeal is brought by the wife upon refusal of the family court to hold the husband in contempt of court for failure to pay attorney fees, alimony, and his share of mortgage payments during this appeal. We affirm in part, reverse in part and remand.

The parties separated in 1983 after nineteen years of marriage. They have three children, one of whom is emancipated. The wife is 43 years of age and the husband is 42. Both parties are well educated. The husband earned a Ph.D. degree from Pennsylvania State University and the wife an M.A. degree from the same institution.

The parties enjoyed a high standard of living. At the time of the divorce hearing, the husband was a full professor at the University of South Carolina. He also earned other income from conducting seminars, writing books, and operating a consulting firm through a close corporation called ARC Consultants, Inc. The wife taught at the University of South Carolina from 1975 until 1983.

The wife was awarded a divorce on the ground of adultery. The husband admitted to an adulterous relationship with one of his students. The wife, however, does not appear to have been blameless in the marital breakup. She admitted that she had been suggesting a divorce for five years.

I. ALIMONY

The trial judge ordered the husband to pay the wife $600.00 per month as permanent alimony and $600.00 per month for five years as rehabilitative alimony. Both parties concede that it was improper to award rehabilitative alimony. We therefore reverse that award.

The wife argues that the permanent alimony award was inadequate, while the husband argues it was excessive. We agree with the wife, and find the $600.00 per month permanent alimony award to be inadequate.

The wife earned over $18,000.00 as an instructor at the University of South Carolina in 1982. The trial judge found that she had a potential to earn $18,000.00 per year. Her net monthly income was only $545.00 at the time of the divorce hearing. The judge found that she was not earning at her capacity. According to the husband's financial declaration and Federal tax return, his 1983 gross earnings were $85,000.00.

The wife disputes the husband's represented earnings and instead asserts that his earnings were closer to $115,000.00. The trial judge found that the husband's earned income was $85,000.00 in 1983 from three jobs, but concluded that he could not continue that pace for long.

The real disagreement the parties have about the husband's income stems from the fact that he operates his consulting firm through a corporation called ARC Consultants, Inc., of which he owns a ten percent stock interest. The remainder of the stock is owned by the parties' children. The wife claims that the corporation's income should be constructively allocated to the husband. To support this contention, the wife introduced the testimony of a certified public accountant. When asked on cross examination why he would disregard the corporate structure and allocate its income to the husband, the CPA replied that since the husband was the operator of the consulting business, "he had some flexibility as to where" he placed the earnings of the firm. The wife's attorney argued during oral argument that the husband also used some of the corporation's assets personally. The corporate form may be disregarded only where equity requires the action to assist a third party. Sturkie v. Sifly, 280 S.C. 453, 313 S.E.2d 316 (Ct.App.1984). The party asserting that the corporate entity should be disregarded has the burden of proof. Id. We have reviewed the record and are unable to find a sufficient basis for disregarding the corporate structure and constructively allocating its income to the husband.

The wife argues next that because the trial judge found that the husband would not be able to continue to work at three jobs for very long, he necessarily anticipated a change of circumstances on the husband's part which was improper. The husband testified without objection that he could not continue his present "pace." The judge obviously believed this testimony. Therefore, the record supports the trial judge's finding that the husband could not continue his three jobs. Aside from the trial judge's one reference to the husband having to lessen his "pace," there is no other indication in the order that the amount of support is based on a lesser anticipated income for the husband. We therefore reject this argument.

The trial judge found that while the wife was awarded a divorce on the grounds of adultery, "the facts of this case are not sufficient to serve as a justification for substantially increasing the alimony award." The wife argues that the husband's fault should have been considered in the alimony award. In making an alimony award the court should consider the conduct of the parties. Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981). The trial judge states in his order that he considered the Lide factors that must be reviewed and determined that the husband's conduct did not justify a substantial increase in the alimony award. Where, as here, there is no evidence that the husband's adultery contributed to the marital break-up, we find no abuse of discretion on the part of the trial judge in not weighing heavily the husband's fault.

The wife prayed in her complaint for the use of the marital home. 1 The court did not explicitly rule upon her request, but ordered the house sold and the proceeds divided. Until the house was sold each party was ordered to pay one-half of the mortgage payment. The wife argues that the trial judge committed error in requiring her to pay one-half of the mortgage payment since she was awarded only a one-fourth interest in the marital home. By so doing, she claims that one-half of her portion of the mortgage payment goes to preserve the husband's three-fourths interest in the property. While such would be true if the house were left vacant or rented for a sum insufficient to make the mortgage We remand to the trial court the issue of alimony with instructions to award the wife a proper amount of permanent periodic alimony. Voelker v. Hillcock, 288 S.C. 622, 344 S.E.2d 177 (Ct.App.1986). We leave to the sound discretion of the trial judge the amount to be awarded, but note that under the circumstances of this case, $600.00 per month is inadequate.

                payment, here the wife had the use of the home during the pendency of the appeal.   We see no abuse of discretion in requiring her to pay a disproportionate share of the mortgage payment to account for the value of her use of the property
                
II. CHILD SUPPORT

The parties' two unemancipated daughters were born in 1968 and 1971. The judge ordered the husband to pay a total of $600.00 per month child support, maintain medical and dental insurance on them, and pay half of their medical and dental expenses not covered by insurance. The wife contends that the child support award is insufficient because it will reduce the children's standard of living and that the use of the home as an incident of child support should have been considered by the trial judge. The husband argues that the amount awarded is excessive in view of the almost equal division of marital property, and also because he cannot afford it.

The matter of how much child support to award in a case is addressed to the sound discretion of the trial judge whose decision will not be disturbed absent an abuse of discretion. Bradley v. Bradley, 285 S.C. 170, 328 S.E.2d 647 (Ct.App.1985). In determining the amount of support to award, the court should consider both parent's ability to support the children and the needs of the children. Casey v. Casey, 289 S.C. 462, 346 S.E.2d 726 (Ct.App.1986). Further, the amount of the award should, to the extent possible, permit the children to continue to live at the standard of living to which they have become accustomed. Id. Upon consideration of these factors, we find no abuse of discretion. Likewise, we see no abuse of discretion in the judge's refusal to award occupancy of the home as an element of child support. The trial judge found that the mortgage payments were extraordinarily high and it would be a burden on the parties to have to continue to make the payments. There is substantial support for this finding.

Finally, the husband argues that the family court committed reversible error in failing to consider the tax ramifications of the child support award. Because the tax laws have changed to permit the custodial parent to claim a child as his or her dependent irrespective of the amount of support furnished the child, he asserts that the court should have required the wife to waive her right to claim the children as dependents and execute the IRS documents evidencing the waiver. We see nowhere in the record that this was requested of the trial court. Moreover, while the husband claims that he alone fully supports the children, the record does not bear him out. We hold that there...

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