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24698 - Thorton v. Thorton

Davis Adv. Sh. No. 29
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Julianne Blakeley Thornton, Respondent,

v.

Kenneth W. Thornton, Jr., Appellant.

Appeal From Georgetown County

William K. Charles, Jr., Family Court Judge

Opinion No. 24698

Heard December 4, 1996 - Filed October 13, 1997

AFFIRMED IN PART; REVERSED IN PART;

VACATED IN PART AND REMANDED

H. Asby Fulmer, III, of Lewis, Roger & Lark, P.A., of

Columbia for Appellant.

James T. McLaren and C. Dixon Lee, III, both of McLaren

& Lee, and Jan L. Warner, all of Columbia, for

Respondent.

TOAL, A.J.: This is a consolidated case involving three separate appeals of

various orders concerning alimony and child support. Appellant Ken Thornton

("Husband") appeals the family court's orders increasing his alimony and child support

obligations, ordering him to pay arrearages with interest or transfer real property he owns,

and finding him in contempt of court. We affirm in part, reverse in part, and vacate in

part. We remand the case for redetermination of attorneys' fees.

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THORNTON v. THORNTON

FACTUAL/PROCEDURAL BACKGROUND

This case has a long and tortuous history. Each. step of the litigation between the

parties has been marked by Husband's attempts to hide his assets, obfuscate issues, deceive

the courts of this state and thwart the aims of justice. An abbreviated history of the

litigation between the parties is as follows:

Husband and Respondent Julianne Thornton ("Wife") were married in 1968 and

remained married for approximately twelve years. At the time of the marriage, Wife was

a schoolteacher, and Husband was in law school. During Husband's time in law school,

Wife was Husband's primary means of financial support. After Husband completed law

school, the couple settled in Georgetown County, where Husband established a successful

law practice. During the marriage, the couple purchased a home and numerous rental

properties.

Five children were born of the marriage, an older daughter followed by quadruplets

("Children") who were born in 1976. The physical stress of the quadruplet birth exacted

a considerable toll on Wife's health. She continues to suffer the effects of giving birth to

the quadruplets.

In 1980, Husband left Wife and Children. He admitted engaging in several acts of

adultery beginning in 1979. Husband and Wife divorced by decree dated March 17, 1982.

The action was brought and heard in Sumter County Family Court in the Third Judicial

Circuit following the recusal of all family court judges in the parties' home county of

Georgetown in the Fifteenth Judicial Circuit. The ground for the divorce was Husband's

adultery.

In the final divorce decree, the family court made several findings concerning

Husband's income and standard of living. First, it found Husband was "a very successful

lawyer with a good practice earning . . . up to approximately $106,000 per year reported

taxable income from his law practice and outside activities." The order further stated that

Husband owned and maintained horses, including a thoroughbred, and owned a fifty

percent interest in a corporation that had as its sole asset a motor yacht. It stated Husband

"has continued to enjoy an extremely high standard of living, and he enjoys an extremely

active social life, at the same time he has protested his inability to pay pendente lite

support for Children and [Wife]."

Most significant to the present actions, the divorce decree concluded Husband had

failed to report all his income and had attempted to mislead the court regarding the extent

of his wealth:

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THORNTON v. THORNTON

The financial status of the husband is one of considerable wealth although his

financial declaration filed with the Court attempted to make the Court believe

otherwise. The latest financial declaration showed a negative gross income,

a condition which cannot exist. [Husband] attempted to deduct income taxes

from his financial declaration without crediting himself with the income

which was responsible for the taxation. This cannot be allowed.

[Husband's] financial declaration was so beclouded that it was virtually

useless in helping the Court determine his monthly income.

(emphasis added). Based on its findings concerning Husband's income and standard of

living, the family court ordered Husband to pay Wife $800 per month in alimony and $350

per month per child in child support. The child support requirement extended through the

children's "eighteenth (18th) birthday . . .unless any child shall continue his or her

education in an institution of higher learning. " The quadruplets were six at the time of the

divorce decree, and the decree noted that Wife was at home raising the children.

Thereafter, throughout the 1980's, the parties continued to litigate issues involving

the transfer of property. Husband unsuccessfully attempted to change venue to

Georgetown County. ln 1987, this court reversed a trial court ruling transferring the case

to the Fifteenth Circuit.

Wife was hospitalized in 1990 for chemical dependency. Much stress had filled her

life in the years following the divorce. Hurricane Hugo heavily damaged her home in

1989. Her health had deteriorated. Her oldest daughter had been killed in a car accident.

One day after Wife entered the hospital, Husband initiated an action in Georgetown County

seeking a change of child custody and termination of his child support and alimony

obligations. In bringing the action, Husband neither sought nor obtained an order

transferring jurisdiction from the family court for the Third Judicial Circuit.

Notwithstanding this Court's order conferring jurisdiction to the Sumter Family Court, an

ex parte order was issued by the Georgetown Family court in that action on November 7,

1990, granting Husband the relief he sought.

While Wife continued to be hospitalized and unavailable for court proceedings, a

series of orders were issued transferring custody to Husband, granting Wife visitation and

terminating Husband's alimony and support obligations to Wife. She appeared in these

proceedings through her mother as court appointed guardian ad litem. None of these

orders were appealed.

After Wife was released from the hospital, she then brought the present action in

1991 in the Third Circuit. She sought an order declaring void for lack of jurisdiction the

1990 transfer of custody to Husband. She also sought custody of Children, arrearages in

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THORNTON v. THORNTON

alimony and child support, increases in the amount of alimony and child support,

attorneys' fees, and a finding of contempt for Husband's failure to satisfy his alimony and

child support obligations.

A number of orders were issued in this litigation. On July 30, 1991, an order was

issued declaring void the order transferring custody to Husband and terminating Husband's

alimony and child support obligations. On December 12, 1991, a pendente lite order was

issued granting Wife custody of Children, awarding her child support and alimony, and

ordering Husband to pay certain medical bills and other expenses associated with

Children. 1

On May 28, 1993, the family court found Husband in contempt of court for his

failure to pay approximately $21,000 in arrearages for Children's medical care and

automobile expenses. Husband had argued that he lacked the means to pay the arrearages

because of difficulties with the Internal Revenue Service and the South Carolina Tax

Commission.2 The family court disagreed. It found that notwithstanding Husband's legal

difficulties, Husband had ample means to satisfy the arrearages. The court noted that in

October 1992, Husband and his current wife had received a $1,000,000 settlement from

a lawsuit and that Husband's share totaled $350,000. The court also referred to Husband's

"substantial" lifestyle and his ownership of several properties, including his lien free

Georgetown office valued at $250,000 and a one-half interest in a Colorado vacation home

worth approximately $600,000. The family court relied on these facts to conclude

Husband had the ability to pay the arrearages and should, therefore, be held in contempt

of court.

Notwithstanding his prior claims that he was "unable" to pay the arrearages,

Husband promptly paid the $21,000 as soon as it became clear he would go to jail if he

failed to pay.

On April 24, 1994, a final hearing was held to address Wife's request for increases

in alimony and child support, to determine Husband's alimony and child support

arrearages, and to determine whether Husband should be held in contempt of court for his

failure to pay alimony and child support. One of the primary issues litigated by the parties

was Husband's ability to pay alimony and child support. Husband admitted he had failed

to pay alimony and child support for a period of time, but claimed he had been and was


1 Although the December 12, 1991 order was modified, it later was fully reinstated.

2 Husband was convicted of federal income tax evasion. He had been indicted on

several counts of underreporting his income to the federal government. Ultimately, he

pled guilty to one count of the indictment.

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THORNTON v. THORNTON

unable to do so because of problems with the IRS and the South Carolina Tax

Commission. He claimed that his tax problems had caused his previously thriving law

practice to dwindle to practically nothing3 and that his only source of income was $1500

per month paid to him by his current wife for help with her Amway business. He also

admitted having received $350,000 from a lawsuit, but claimed all this money was (more

or less) earmarked for the IRS. He further claimed that he had promised the IRS not to

sell or otherwise encumber any real property he owned.

Notwithstanding Husband's claims of impoverishment and deprivation, there was

ample testimony regarding Husband's lavish lifestyle. Among other things, Husband

drove an expensive car, owned a Rolex, and possessed several valuable pieces of property,

including the Colorado and Georgetown properties. There was evidence Husband traveled

frequently. Wife attempted to establish at the hearing that Husband also had an interest

in the Amway business. While the evidence of such an interest was rather limited, it did

indicate that Husband contributed "sweat equity" to his current wife's extremely profitable

Amway business and that he was capable of making substantial amounts of money in sales.

As noted above, Husband received a large settlement in a lawsuit. He managed to pay

thousands of dollars to various professionals, including, lawyers and accountants, for

assistance with tax and other matters.

Based on the testimony at the final hearing, the family court issued a final order in

the matter on October 14, 1994 ("the October 14 order"). The October 14 order assessed

arrearages and attorneys' fees against Husband, found Husband in contempt of court, and

increased alimony and child support.4 The order also restrained Husband from transferring

or otherwise encumbering his property, which included a Georgetown office building (his

law office) and a part interest in a six-bedroom home in Colorado, until he paid the

arrearages in alimony and child support. The finding of contempt was based on the family

court's conclusion that Husband had the ability and means to pay alimony and child

support, but he was either concealing or refusing to use his assets or was willfully failing


3 Husband was suspended from the practice of law for a period of time following

his federal tax conviction.

4 Alimony was increased to $1,500 per month, and child support was increased to

$500 per month per child. The order provided that the child support continue "until such

time as each child graduates from college. "

At the hearing, there was considerable uncontroverted evidence of dramatic

increases in the cost of raising Children. Children had increased expenses associated with

medical care, hygiene, clothing, and education. Husband did not seriously challenge the

increase in expenses, but claimed he was not liable for college expenses. The trial court

concluded that the original divorce decree "fixed" the obligation for college expenses.

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THORNTON v. THORNTON

to obtain employment that would allow him to meet his obligations.

The order directed Husband's Georgetown office property, among other properties,

to be used as security for payment of Husband's obligations. Title to the Georgetown

office property was transferred to Wife when Husband failed to comply with the order.

Husband's post-trial motions were denied in an order dated February 17, 1995.

After another hearing, the family court again found Husband in contempt of court.

This contempt order ("May 23 contempt order") was based on Husband's failure to pay

his alimony and child support arrearages from before and after entry of the October 14

order, as well as his transferring to his current wife his interest in proceeds from the sale

of some property. At the hearing on the Rule to Show Cause why Husband should not be

held in contempt of court, Wife presented evidence of a loan application submitted by

Husband that showed a net worth substantially higher than what Husband had represented

to the family court.5 This document was admitted under the business records exception to

the hearsay rule; it had been found in Husband's law office after title to the office was

transferred to Wife. Other admitted documents showed that Husband had deposited

substantial sums of money into his checking account.6

Yet another contempt order was issued September 1, 1995 ("September 1 contempt

order"), and Husband's motion for reconsideration was denied by order dated November

30, 1995. The September 1 contempt order was based on Husband's transfer of the

Colorado property and his false testimony in a previous hearing concerning the transfer of

the Colorado property.

Husband appeals the orders on numerous grounds.

LAW/ANALYSIS

1. APPEAL FROM OCTOBER 14, 1994 ORDER & ORDER DENYING RECONSIDERATION

A. TRANSFER OF REAL PROPERTY

Husband argues the family court lacked the power to order a transfer of Husband's

real property to satisfy his alimony and child support arrearages. We agree.


5 The loan application represented that Husband and his current wife have a net

worth exceeding two million dollars.

6 On October 17, 1994, a check in the amount of $25,272 was deposited into

Husband's account. Other large checks were issued to Husband and his current wife, and

Husband endorsed those checks to his current wife.

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THORNTON v. THORNTON

The October 14th order provides in pertinent part:

To secure Defendant-Father's obligation to pay the child support and

alimony arrearages referenced above and to secure his compliance with his

ongoing obligation to pay child support and alimony, and in the further event

that Defendant-Father does not bring all arrearages current by October 31,

1994, as ordered above, then he shall transfer to Plaintiff-Mother, free of all

liens and encumbrances, his Georgetown office building and land, free of all

liens and encumbrances which shall then be sold and the proceeds applied to

Defendant-Father's past due and future support obligations to Plaintiff-

Mother and the children. In the event that he fails to do so, the Clerk of

Court for Georgetown County, South Carolina is hereby authorized and

directed to transfer said property to Plaintiff-Mother, free and clear of all

liens and encumbrances, pursuant to § 20-7-420(30), S.C. Code of Laws,

1976, as amended, and the property shall then be sold by Plaintiff-Mother

and the proceeds applied to Defendant-Father's past due and future support

obligations.

The Order contains a similar provision concerning the Colorado property. When

Husband failed to pay these arrearages and failed to transfer the Georgetown property to

Wife, the Clerk of Court for Georgetown County effected the transfer. Husband now

asserts the family court lacked the power to order the transfer.

We reverse the family court's decision to transfer the Georgetown property to Wife

and vacate the order effecting, such transfer. Despite the fact that Husband cavalierly

evaded his financial obligations and flouted court orders, the family court had no authority

to transfer title to the Georgetown property to Wife as security for alimony and child

support payments. We conclude that S.C. Code Ann. § 20-3-130(D)(1985), which

authorizes the family court "to make provision for the security for the payment of the

[alimony] support including, but not limited to, requiring the posting of money, property,

and bonds" does not permit such direct transfers of property.7 Instead, the family court's


7 In the absence of a specific statutory provision, the authority to transfer title to

real property for security may not be implied from a general statute authorizing a court to

require security for alimony payments. An example of a jurisdiction that does permit such

a transfer is North Carolina. Its relevant statutory provision states, "If the court requires

the transfer of real or personal property or an interest therein as part of an order for

alimony . . . or for the securing thereof, the court may also enter an order which shall

transfer title . . . ." N.C. Gen. Stat. § 50-16.7(c)(1990); see Gilbert v. Gilbert, 321 S.E.2d

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THORNTON v. THORNTON

October 14 order had the effect of creating a lien on the Georgetown property. The order

expressly stated that such property was to secure Husband's obligations to Wife. Since

Husband has refused to meet his obligations, Wife may immediately foreclose the lien by

following any execution procedures required by law. On remand, the family court will

determine the amount of arrearages and attorneys' fees. The proceeds of any foreclosure

sale will go toward satisfying Husband's debts to Wife. If the sale price for the

Georgetown property exceeds the amount of Husband's indebtedness, the remainder of the

money shall be held in escrow in an account from which Wife can draw her monthly

alimony until the fund is exhausted.

We also reverse the judgment of the family court transferring the Colorado property

to Wife and vacate the order effecting such transfer. As noted above, the October 14 order

had the effect of creating a lien on Husband's properties. This included his one-half

interest of the Colorado property.8 Consequently, Husband's new wife holds the property

subject to the lien. Wife may enforce the lien pursuant Colorado law.

B. CHILD SUPPORT OBLIGATION

Husband argues the family court erred in increasing his child support obligation.

He contends the lower court should have reduced or terminated the support due to his

inability to pay and because the children have reached majority. We disagree.

At the hearing, Wife presented evidence that expenses associated with the children

had increased substantially. The family court agreed, ordering, Husband to pay $500 per

month per child for child support until the child graduated from college.

Generally under South Carolina law, a parent's obligation to pay child support

extends only until the child reaches majority, then ends by operation of law. See S.C.

Code Ann. § 20-7-420(17) (1985)(granting family court jurisdiction " [t]o make all orders

for support . . . of a child . . . until the child is eighteen years of age . . . or, where

there are . . . exceptional circumstances that warrant it, during any period and beyond the


455 (N.C. Ct. App. 1984)(holding that § 50-16.7(c) permits the transfer of title to real

property if it is necessary to insure payment of alimony).

8 Generally, a court of one state cannot create a lien on property located in another

state. See 51 Am. Jur. 2d Liens § 68 (1983). However, "a court of equity, having

authority to act upon the person, may indirectly act upon real estate in another state

through the instrumentality of this authority over the person. " Scheper v. Scheper, 125

S.C. 89, 103, 118 S.E. 178, 183 (1923)(citing Bates v. Bodie, 245 U.S. 520, 38 S. Ct.

182, 62 L. Ed. 444 (1918)).

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THORNTON v. THORNTON

child's minority . . . ."); Bull v. Smith, 299 S.C. 123, 382 S.E.2d 905 (1989). If,

however, certain factors are met, the family court may order a divorced parent to pay the

college expenses of an emancipated child. See Risinger v. Risinger, 273 S.C. 36, 253

S.E.2d 652 (1979). Generally, the family court should employ the Risinger test, not a

"change of circumstances" analysis, in determining whether the parent's support obligation

should extend past the child's eighteenth birthday when the child chooses to attend college.

Bull, 299 S.C. at 125, 382 S.E.2d at 906.

In the present case, however, the 1982 divorce decree ordered Husband to pay child

support until Children completed their college educations. Husband cannot now challenge

the decree on this point. Where, as here, an obligation to pay child support throughout a

child's college education is long fixed, the obligor parent will not be permitted to petition

the court at the eleventh hour, just as a child is entering college, for relief the parent

should have sought years earlier.

Therefore, the only question before us is whether the evidence in the Record

supports the family court's decision to increase child support. Wife presented evidence

of a dramatic increase in Children's expenses. Moreover, there was evidence that

Husband had the ability to pay the increased support. Accordingly, we affirm the increase

in child support.

C. INCREASE IN ALIMONY OBLIGATION

Husband next argues the family court erred in increasing Wife's alimony. We

disagree.

S.C. Code Ann. § 20-3-170 (1985) authorizes parties to apply to the family court

for modifications of periodic alimony. The statute requires the family court to give both

parties an opportunity to be heard and to present evidence relevant to the appropriate level

of alimony. After the parties have done so, the family court "shall make such order as

justice and equity shall require, with due regard to the changed circumstances and the

financial ability of the supporting spouse, decreasing or increasing or confirming the

amount of alimony provided for in such original judgment or terminating such payments.

S.C. Code Ann. § 20-3-170. The change in circumstances must be substantial or material

in order to justify a modification of the previous alimony obligation. E.g., Calvert v.

Calvert, 287 S.C. 130, 138, 336 S.E.2d 884, 888 (Ct. App. 1985)("Generally, to warrant

a modification in either alimony or child support, the change of circumstances must be

either substantial or material.")(citations omitted).

In an equity case that has been tried before a judge, an appellate court may

determine the facts in keeping with its own view of the preponderance of the evidence.

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THORNTON v. THORNTON

Nevertheless, "the question of whether to increase or decrease support based on a finding

of changed circumstances is a matter committed to the sound discretion of the family

court." Brunner v. Brunner, 296 S.C. 60, 64, 370 S. E. 2d 614, 616 (Ct. App. 1988). For

that reason, the family court's determination whether to modify support will not be

disturbed on appeal unless the family court abused its discretion. Id.

The record in this case supports the family court's determination regarding alimony.

Wife's medical problems continue to be severe and to hamper her earning ability.

Moreover, there was evidence of an increase in Husband's standard of living. The judge's

order from the 1982 divorce decree found Husband earned slightly over $100,000 per

year. In the October 14th order, the judge found Husband's income and lifestyle had

significantly improved since the 1982 divorce decree. In our opinion, there is sufficient

evidence to sustain such a finding.

D. CONTEMPT ORDER/JAIL SENTENCE

Husband next argues that the family court (1) should not have calculated alimony

arrearages for periods during which Wife was hospitalized for chemical dependency or

lived with another man; (2) should not have found Husband in contempt for his failure to

pay alimony and child support; and (3) should not have sentenced Husband to a year in jail

for his contempt of court. We disagree on all counts.

First, Husband had a clear obligation to pay Wife alimony . The family court found

that Wife's limited period of chemical dependency following the death of her eldest

daughter did not constitute a sufficient reason to cut off alimony, nor did her residing with

a man following the destruction of her home by Hurricane Hugo. The family court's

decision on this matter is well supported by the facts.

Husband's argument that he should not be found in contempt because he lacked the

funds to satisfy his alimony and child support obligations is equally without merit.

Husband does not dispute his failure to pay alimony and child support. Instead, he argues

he lacks the means to satisfy his obligations; that is, because he cannot pay the support,

his failure to do so is not willful. We consider three factors in the record in assessing

Husband's claim that he was unable to pay the alimony and child support: (1) Husband's

ownership of valuable property, as evidenced by his own financial declaration; (2)

Husband's extensive history of lying to virtually everyone about his assets or hiding those

assets; and (3) Husband's very convenient failure to make any serious attempt to obtain

employment outside the family Amway business.

Husband acknowledged that he owned real property worth a fair amount of money,

but claimed that he could not encumber or mortgage the property because of agreements

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THORNTON v. THORNTON

with the IRS and the South Carolina Tax Commission.9 He also suggested that even

selling all his property would not satisfy his tax debts. However, Husband is well-

educated and capable of employment which would allow him, if he were acting in good

faith, to begin to satisfy his arrearages. Even assuming Husband could not have begun to

pay off his arrearages by monies earned through the practice of law, Husband

demonstrated no more than a lackluster effort to secure any employment. In light of the

evidence concerning the substantial amount of property listed on Husband's financial

declaration, his earning capacity, and his history of understating and lying, about his

income, the family court's finding of contempt was well supported by the evidence.

Finally, the jail sentence is eminently reasonable in view of Husband's

unwillingness to comply with the terms of the 1982 divorce decree fixing his alimony and

child support obligation. We note that every time Husband faces a serious threat of

incarceration, he is mysteriously able to secure funds to meet his obligations.

E. ATTORNEYS' FEES

Husband next argues the attorneys' fees assessed against him by the family court

were excessive. With one exception, we disagree.

Under S.C. Code Ann. § 20-7-420(2) (Supp. 1995), the family court has the

authority to order payment of attorneys' fees in marital litigation. Actions for alimony or

modification of alimony fall within this rule.

In making, an award of attorneys' fees, the family court must consider six factors:

(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the

case; (3) the professional standing of counsel; (4) contingency of compensation; (5)

beneficial results obtained; and (6) customary legal fees for similar services. Glasscock

v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). When a contract or statute

authorizes an award of attorneys' fees, the trial court should make specific findings of fact

on the record for each of the six factors to be considered. Blumberg v. Nealco, 310 S.C.

492, 494, 427 S.E.2d 659, 661 (1993). If on appeal there is inadequate evidentiary

support for each of the factors, the appellate court should remand so the trial court may

make specific findings of fact. Id.


9 Although his plea agreement is part of the Record, we have found nothing in the

Record (aside from Husband's testimony, which is of dubious credibility at best) about any

agreement with the IRS not to encumber the property. Furthermore, Husband's position

on this is curious given his assignment to his current wife of his interest in the Colorado

home.

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THORNTON v. THORNTON

Here, the family court made specific findings as to the Glasscock factors, and the

Record supports those findings... Wife presented testimony about the legal services she

received, and the Record contains a detailed affidavit by Wife's counsel. In short, there

is ample evidentiary support for the fee award.

However, we modify the fee award in one respect. Husband is correct that the

family court's award of attorneys' fees should not include fees incurred in the course of

appellate representation. See Rule 222, SCACR (providing that "[c]osts on appeal shall

be taxed only in the appellate court"). Accordingly, the award of attorneys' fees should

be reduced to exclude any amounts representing charges for prosecuting or defending an

appeal.

F. CALCULATION OF INTEREST ON ARREARAGES

Husband next argues that the family court erred in its method of calculating interest

on his alimony and child support arrearages. Specifically, he argues such interest should

begin to accrue only from the time of the family court's final order, rather than from the

time each child support payment became due. We disagree.

In Casey v. Casey, 311 S.C. 243, 245-46, 428 S.E.2d 714, 716 (1993), this Court

found that "fixed awards of money for equitable distribution shall accrue interest at the

post-judgment rate from the date of the judgment, or in the case of specified periodic

payments from the date each payment becomes due and owing. " (emphasis added).

Although Casey concerns equitable division awards rather than alimony, the principle is

the same. Here, Husband was ordered in the 1982 divorce decree to make monthly

payments of alimony and child support to Wife. That decree constituted the "judgment"

ordering the periodic payments. The fact that Wife had to get a contempt order in 1994

because of Husband's failure to meet his alimony and child support obligations does not

mean the 1994 order was the first judgment ordering such payments. To alter the interest

requirement in the way Husband suggests would reward Husband for failing to meet his

obligations when they were due.

Application of the Casey, rule to alimony payments puts South Carolina in the

mainstream of jurisdictions that have addressed this issue:

In the greater number of the cases dealing with the question, interest has

been allowed on unpaid allmony, ordinarily, because of a statute providing

for interest on a money judgment. Thus interest has been allowed on a

judgment for alimony in gross from the date payment was due until the date

payment was made. And where the judgment or decree ordered the payment

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THORNTON v. THORNTON

of alimony in installments, interest has been allowed on each installment

from the date the particular installment matured.

24 Am. Jur. 2d Divorce and Separation § 763 (1996); see also, e.g., In re Sanborn, 777

P.2d 4 (Wash. Ct. App. 1989)(wife was entitled to interest on periodic alimony payments

as of due date of each such payment); Morgan v. Morgan, 452 So.2d 255 (La. Ct. App.

1984)(interest is due on alimony at time each support payment becomes due). This is a

sound rule, and the family court's treatment of interest in this case was appropriate.

G. CALCULATION OF DISPUTED ARREARAGE

Finally, Husband argues the family court erred in its calculation of the alimony and

child support arrearages because it considered monthly alimony and child support accruing

after the date of the hearing in this matter. We see no error.

As Wife notes, Husband does not suggest that he paid alimony or child support for

the months following the hearing in this matter but preceding issuance of the final (October

14, 1994) order. Moreover, Husband did not object in his post-trial motions to the

calculation of arrearages in the October 14, 1994 order. Under these circumstances, there

is no error.

Husband also argues the family court should not have included in its calculation of

arrearages a retroactive increase in alimony and child support for the month of September

1994. We affirm the calculation of arrearages in its entirety. The decision to order

retroactive support rests within the sound discretion of the family court and should not be

reversed absent an abuse of discretion by the family court. Hallums v. Hallums, 296 S.C.

195, 371 S.E.2d 525 (1988). There was no abuse of discretion here.

H. CONCLUSION FOR OCTOBER 14 ORDER

We affirm the portion of the family court's order finding, Husband in contempt of

court and sentencing him to one year in jail. We also affirm the increases in alimony and

child support. We remand the matter for reconsideration of the award of attorneys' fees

in light of our holding that portions of the fee award related to appellate representation

should be excluded.

We reverse and vacate the family court's direct transfer of the Georgetown and

Colorado properties to Wife. The family court's October 14 order instead had the effect

of creating a lien on Husband's properties. Wife may enforce the liens as provided by

law. The family court should determine the amount Husband owes for arrearages and

attorneys' fees and satisfy this amount from the proceeds from the foreclosure sale. Any

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THORNTON v. THORNTON

amount exceeding Husband's indebtedness shall be placed in an escrow account from

which Wife may draw her monthly alimony and child support still owing.

II. APPEAL FROM MAY 23, 1995 FAMILY COURT ORDER

The family court's May 23, 1995 order found Husband in contempt of court for his

failure to satisfy the arrearages referenced in the October 14 order, as well as subsequent

alimony and child support obligations and for his transfer of assets to his current wife in

violation of the October 14 order. Husband raises numerous issues on appeal, many of

which relate to the admissibility of certain evidence tending to establish his net worth.

Even assuming the documents and other evidence about which Husband now

complains were improperly admitted,10 there is sufficient evidence to sustain the family

court's finding of contempt. Husband admits his failure to pay the alimony and child

support at issue. The only real issue was Husband's financial ability to satisfy his

obligations to Wife. Without considering the "business records" showing Husband's

representations to a bank concerning his net worth, we conclude Husband possessed the

means to pay alimony and child support. That alone is enough to sustain the contempt

order. We do not reach issues concerning the transfer of property to Husband's current

wife or other issues that do not affect the family court's ability to determine Husband was

in contempt of court for his failure to pay alimony.

We note that the attorneys' fees award should not include fees associated with

appellate representation. See Rule 222, SCACR.

III. APPEAL FROM ORDERS OF SEPTEMBER 1, 1995 AND NOVEMBER 30, 1995

The family court's September 1 finding of contempt against Husband was based on

his having transferred his interest in the Colorado property to his current wife and lying

to the family, court about the transfer at the April 25, 1995 hearing. The October 14 order

expressly prohibited Husband from transferring that property. Husband did transfer the

Colorado property in contravention of the October 14 order, and we agree that Husband

lied to the family court about the transfer. We therefore affirm the family court's finding

of contempt.


10 The particular records at issue were admitted pursuant to the business records

exception to the hearsay rule. The records almost certainly do not fall within the business

records exception; among other things, they are personal records. See Rule 803(6), S.C.

R. Evid.

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THORNTON v. THORNTON

This case is AFFIRMED IN PART; REVERSED IN PART; VACATED IN

PART AND REMANDED for further proceedings consistent with this opinion.

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.

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