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2004-UP-004 - Bauer v. Bauer

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Case No.: 1999-DR-07-119

Luella H. Bauer,        Appellant/Respondent,

v.

Richard K. Bauer,        Respondent/Appellant.


Case No.:  2000-DR-07-94

Richard K. Bauer,        Respondent,

v.

Luella H. Bauer,        Appellant.


Appeal From Beaufort County
Jane D. Fender, Family Court Judge


Unpublished Opinion No. 2004-UP-004
Submitted October 6, 2003 – Filed January 8, 2004


AFFIRMED AS MODIFIED


Mary Kay Siren, Esquire; Lee S. Bowers, of Estill; for Appellant-Respondent.

John S. Nichols, of Columbia; William Randall Phipps, of Hilton Head Island; for Respondent-Appellant.

PER CURIAM:  In this action for separate maintenance and support, the family court divided the marital property equally and ruled Luella H. Bauer (“Wife”) was not entitled to alimony.  In addition, the family court ordered the parties to have the marital home appraised before Wife was to purchase Richard K. Bauer’s (“Husband”) interest or to immediately list the home for sale.  For more than six months after the home was appraised,  Wife failed to list it for sale.  In a subsequent order, the family court awarded Husband post-judgment interest for the time period from the date sixty days after the appraisal until the date the house was listed for sale.  Wife appeals, arguing the family court erred by failing to award her alimony and by not considering certain facts that supported her claim for alimony.  Husband appeals, arguing the family court should have awarded him post-judgment interest from the date of the order, or the date of the appraisal, until the date the home was sold.  We affirm as modified.

FACTUAL/PROCEDURAL BACKGROUND

Husband and Wife were married on December 6, 1958.  The parties separated in January 1999 because Wife believed Husband was having an affair.  An order for separate maintenance and support was issued January 20, 2000.  The family court ordered the marital assets to be equally divided between the parties.  Because Wife desired the marital home as part of the equitable distribution, the family court gave Wife sixty days to purchase Husband’s interest or to list the home for sale.  The family court declined to award alimony to either party. 

Both parties filed motions for reconsideration, and an amended final order was issued on April 12, 2000.  In the amended order, the family court stated “since both parties are retired and the assets have been divided equally, including the IBM defined benefit annuity, neither party is entitled to alimony from the other.”  The family court also required that a new appraisal of the home be conducted before Wife purchased Husband’s interest.  After the parties obtained an appraisal, Wife was ordered to purchase Husband’s interest or “immediately” list the home for sale.

On May 30, 2000, the home was appraised at $315,000.00.  On December 22, 2000, after failing to obtain financing or to sell the marital home herself, Wife listed the home with a real estate agent.  During the next six months, the parties received two offers to purchase the home.  The first offer of $325,000.00 was rejected.  Husband and Wife agreed to accept the second offer of $340,000.00 and entered into a contract to sell the home on June 25, 2001.  

Both parties appealed the amended order.  Because several issues needed clarification, including post-judgment interest, the appeals were stayed, and the matter was remanded for a hearing before the family court.  Husband later abandoned his appeal of the amended order. 

On remand, the family court held a hearing and filed its final order on October 16, 2001.  In the order, the family court ruled the IBM income would be divided evenly between the parties.  The family court also ordered Wife to pay post-judgment interest on Husband’s share of the marital home for the time period when she failed to list the home for sale as required by the amended order.  Husband appealed the family court’s order on remand.  Husband’s and Wife’s appeals were consolidated for review. 

LAW/ANALYSIS

I.       Wife’s Appeal

Wife argues the family court erred by failing to award her alimony.  We disagree.

“The decision to grant or deny alimony rests within the discretion of the family court . . . . [and] will not be disturbed on appeal absent abuse thereof.”  Dearbury v. Dearbury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002).

In making an award of alimony, the family court must consider and weigh the following factors: (1) “duration of the marriage;”  (2) physical and emotional health of the parties; (3) “educational background” of the parties; (4) “employment history and earning potential” of the parties; (5) “standard of living established during the marriage;” (6) “current and reasonably anticipated earnings” of the parties; (7) “current and reasonably anticipated expenses” of the parties; (8) “marital and nonmarital properties of the parties;” (9) “custody of the children;” (10) “marital misconduct or fault;” (11) “tax consequences;” (12) prior support obligations; and (13) “other factors the court considers relevant.”  S.C. Code Ann. § 20-3-130(C)(1)-(13) (Supp. 2002). 

“Our inquiry on appeal is not whether the family court gave the same weight to particular factors as this court would have; rather, our inquiry extends only to whether the family court abused its considerable discretion in assigning weight to the applicable factors.” Allen v. Allen, 347 S.C. 177, 186, 554 S.E.2d 421, 425 (Ct. App. 2001); see S.C. Code Ann. § 20-3-130(C) (stating that in making an award of alimony, the family court must consider all relevant factors and “give weight in such proportion as it finds appropriate” to these factors); see also Long v. Long, 247 S.C. 250, 252, 146 S.E.2d 873, 875 (1966) (“The [decision to award] alimony is [a] matter with[in] the discretion of the trial judge, to be exercised in the light of the facts of each particular case, and will not be disturbed on appeal unless an abuse of discretion is shown.”).  

In deciding not to award alimony in the present case, the family court considered the following factors outlined in section 20-3-130: (1) the parties had been married for forty years; (2) Wife was 65 years old; Husband was 67 years old; and both parties were in reasonably good health; (3) Wife obtained her Master’s degree in psychology while Husband had a Bachelor’s degree in psychology; (4) Wife was predominantly a homemaker during the course of the marriage while Husband was a retired IBM executive, and neither had any future earning potential; (5) the parties maintained a moderate standard of living during the marriage; (6) Wife had a monthly income of $1,318.03 and Husband had an income of $1,998.03; (7) the current expenses of each party exceeded current income, with Wife having a monthly deficit of $509.36 and Husband having a monthly deficit of $424.97; (8) the parties owned a marital home located on Hilton Head Island valued at $290,000.00, [1] as well as various savings accounts, investment accounts, retirement accounts, and insurance policies valued at approximately $300,000.00; (9) the parties have five children, each of whom had reached the age of majority; and (10) no marital misconduct by either party was substantiated.  

Because the family court reviewed the factors outlined in section 20-3-130, we conclude the family court considered the appropriate factors in deciding not to award alimony. See S.C. Code Ann. § 20-3-130(C).  Furthermore, based on our review of the record, we hold the family court did not abuse its discretion. See Allen, 347 S.C. at 186, 554 S.E.2d at 425.

In addition to arguing the family court erred by failing to award her alimony, Wife also argues the family court did not consider certain facts that supported her claim for alimony.  First, she contends the family court failed to consider that she received less Social Security income than Husband. We disagree.           

In determining the overall earnings of Wife and Husband, the family court considered each party’s monthly Social Security income and monthly allotment from the IBM annuity.  Wife received a monthly Social Security income of $554.00, and Husband received a monthly Social Security income of $1,234.00.  Because the family court ordered Husband’s $1,528.05 monthly allotment from the IBM annuity to be evenly divided between the parties, each received $764.03 a month from the annuity.  Using these figures, the family court determined Wife had a monthly income of $1,318.03, while Husband had an income of $1,998.03 per month. Thus, contrary to Wife’s argument, the family court considered the difference in Social Security income in determining not to award alimony.  Furthermore, we have reviewed the record in light of the fact that the family court may “give weight in such proportion as it finds appropriate” to each of the factors outlined in section 20-3-130. See S.C. Code Ann. § 20-3-130(C).  Based on our review, we hold there was no abuse of discretion.

Lastly, Wife argues the family court erred by failing to consider she would be required to pay approximately $150.00 more per month to maintain her health insurance coverage after a divorce.  We disagree.

With regards to the increase in the cost of Wife’s health benefits upon divorce, Wife testified that after a divorce, her health insurance premium would increase from $24.80 per month to $193.18 per month.  After listening to this testimony, the family court stated in its order, “the current expenses of both parties, as reflected in their financial declarations, are reasonable and exceed the current income of both parties.”  Therefore, Wife cannot claim the family court failed to consider this factor, but instead can only argue she disagrees with the weight given to this factor by the family court.  Because the family court may “give weight in such proportion as it finds appropriate” to each of the factors, we have reviewed the record for an abuse of discretion and we hold the family court did not abuse its discretion. See id.

II.      Husband’s Appeal

Husband argues the family court erred by limiting the award of post-judgment interest to the time period beginning August 1, 2000, the date sixty days after the court-ordered appraisal was completed, and ending December 22, 2000, the date that the home was listed for sale.  We disagree.

In awards by the family court, statutory post-judgment interest “applies only to money awards entered pursuant to distribution when the award is due as payable immediately or at fixed increments.” Casey v. Casey, 311 S.C. 243, 246, 428 S.E.2d 714, 716 (1993).  Post-judgment interest shall run until the judgment is paid or otherwise satisfied. See Russo v. Sutton, 317 S.C. 441, 444, 454 S.E.2d 895, 896 (1995) (holding post-judgment interest accrues on money judgments until the judgment amount has been properly deposited with the court pursuant to Rule 67, SCRCP); Rule 67, SCRCP (stating a judgment debtor may deposit into court all or part of sum due on judgment).  Thus, post-judgment interest was not a proper consideration.

While the original order gave Wife sixty days to list the home for sale, the amended order required Wife to obtain an appraisal of the marital home before either purchasing Husband’s interest or “immediately” listing the home for sale. In the event Wife listed the home for sale, the net proceeds were to be divided equally between Husband and Wife.  

Although the home was appraised on May 30, 2000, Wife did not list the home for sale until December 22, 2000, more than 200 days later.  On remand, the family court determined sixty days was a reasonable time for Wife to have looked for financing to purchase Husband’s interest before listing the home for sale.  The family court then couched its award as post-judgment interest, awarded from August 1, 2000, the time by which Wife should have complied with the order, to December 22, 2000, the time Wife actually complied by placing the home for sale.

Husband argues he was entitled to post-judgment interest from April 12, 2000, the date of the amended order, or from May 31, 2000, the date of the appraisal, until June 2001, when he received his portion of the proceeds from the home. We disagree. 

The proceeds were not payable to Husband until June 2001 when the home was sold.  Therefore, post-judgment interest is inapplicable for the time period prior to the sale.  See Casey, 311 S.C. at 246, 428 S.E.2d at 716. 

The family court ordered Wife to pay Husband interest from August 1 to December 22, the time period when it found her to be unreasonable in failing to list the home for sale.  In doing so, it is clear the family court penalized Wife for failing to comply with the order in a timely fashion.  The award was in the nature of compensatory relief, designed to make Husband whole for the lost use of his equity in the home during Wife’s non-compliance. See Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 917 (1982) (“The power to punish for contempt is inherent in all courts . . . . [and] [i]ts existence is essential . . . to the enforcement of the . . . orders . . . of the courts.”); Cheap-O’s Truck Stop v. Cloyd, 350 S.C. 596, 606, 567 S.E.2d 514, 519 (Ct. App. 2002) (“Compensatory contempt is a money award for the plaintiff when the defendant has injured the plaintiff by violating a previous court order.” (quoting Curlee, 277 S.C. at 386, 287 S.E.2d at 919)).  Because the family court did not abuse its discretion in awarding Husband interest for the time period that it determined Wife failed to comply with the court order, we affirm as modified. See Cloyd, 350 S.C. at 607, 567 S.E.2d at 519 (“‘A determination of contempt ordinarily resides in the sound discretion of the trial judge.’” (quoting State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct. App. 1994)).

Husband also argues the family court erred by finding Wife made a reasonable effort to obtain financing on the home for the first sixty days after the court-ordered appraisal.  We hold this argument is without merit.  Indeed, the family court based its decision on its original order which gave Wife this amount of time in which to decide whether to purchase Husband’s interest or to sell the property.  Thus, we affirm as modified. See id.

CONCLUSION

Based on the foregoing, the family court’s order denying alimony is affirmed.  The order granting Husband interest from August 1, 2000, until December 22, 2000, is affirmed as modified.

AFFIRMED AS MODIFIED.

STILWELL, HOWARD, and KITTREDGE, JJ., concurring.


[1] There was an associated golf membership valued at $7,500.00.