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2004-UP-248 - Foster v. Foster

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Larry Foster,        Respondent,

v.

Bettie Foster,        Appellant.


Appeal From Florence County
Wylie H. Caldwell, Jr., Family Court Judge


Unpublished Opinion No, 2004-UP-248
Submitted March 8, 2004 – Filed March 15, 2004


AFFIRMED


Jerry D. Vinson, Jr. and Michele R. Krize, both of Florence, for Appellant.

James M. Saleeby, Sr., of Florence, and Marian Dawn Nettles, of Lake City, for Respondent.

PER CURIAM: Larry Foster (“Husband”) brought this action against his former wife Bettie Foster (“Wife”) seeking a termination or reduction in alimony based on his substantial change of circumstances.  The family court reduced Husband’s alimony obligation, but only based on Wife’s change of income.  Wife appeals, alleging the trial court erred in modifying the alimony and in failing to award her the full amount of her attorney’s fees.  We affirm.

FACTS

Husband and Wife married on April 17, 1985 and divorced on April 30, 1998.  The divorce decree divided the marital estate equally between the parties and granted Wife $1,500 per month in permanent, periodic alimony.  Wife appealed.  The parties settled the case during the pendency of the appeal with an agreement approved by the family court.  This agreement provided Husband would pay Wife $7,500 per month, consisting of $6,000 per month in equitable distribution payments and $1,500 per month in permanent, periodic alimony payments until the last equitable distribution payment was made in January of 2002.  After the Husband’s equitable distribution payment obligations ceased, Husband’s alimony obligations would increase to $4,000 per month.  The agreement further provided that at that time, either party could move for a modification of alimony based on a substantial change of circumstances. 

In February 2002, Husband filed this action seeking a reduction or elimination of alimony based on a substantial change of circumstances.  He alleged his businesses’ incomes had decreased substantially causing similar decreases in his personal income.  In addition to the Husband’s alleged decrease in income, the family court also considered the wife’s new employment with a bank in which she earned $1,387.00 per month. 

The family court reduced Husband’s alimony obligation by $1,000 per month, basing the modification solely on Wife’s new employment, and not Husband’s alleged loss of business income.  The court awarded the Wife $2,500.00 of the attorney’s fees she requested.  This appeal followed. 

LAW/ANALYSIS

I.  Reduction in alimony

Wife argues the family court erred in finding there had been a substantial change in her circumstances that warrant a reduction in alimony.  We disagree. 

The family court has the authority to alter alimony payments upon a proper showing of a change of condition.  S.C. Code Ann. § 20-3-170 (1985).  Questions concerning alimony are in the sound discretion of the family court.  Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct. App. 2001).  The family court’s modification of an alimony award will not be reversed on appeal absent a showing of abuse of discretion.  Thornton v. Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997).  To justify modification of an alimony award, the changes in circumstances must be substantial or material.  Sharps v. Sharps, 342 S.C. 71, 76, 535 S.E.2d 913, 916 (2000).  “Generally, changes in circumstances within the contemplation of the parties at the time the decree was entered do not provide a basis for modifying either an alimony allowance or a child support award.”  Id. (quoting Calvert v. Calvert, 287 S.C. 130, 139, 336 S.E.2d 884, 889 (Ct. App. 1985).  Therefore, courts have refused to modify alimony where the parties anticipated the substantial change in circumstances at the time of the divorce decree.  Sharps, 342 S.C. at 76, 535 S.E.2d at 916.  The original divorce decree generally addresses the expected change of circumstances.  Id. at 76-77, 535 S.E.2d at 916. 

The family court reduced Husband’s alimony obligation from $4,000 per month to $3,000 per month.  The court stated, “The only reason he is receiving the decrease herein awarded is the Wife managed to land a job immediately before the hearing, candidly disclosed that fact, and allowed that to be considered by the court.”  Wife contends that the fact she now earns a $1,387 per month income is not a sufficient change of circumstances to warrant modification of the alimony award.  She argues the parties clearly anticipated she would return to the work force, and therefore, it was error for the family court to modify the alimony award. 

We find Wife’s new employment was a change of circumstances that was unanticipated by the parties at the time of the decree.  The original decree stated Wife had “job skills as evidenced by her past work history, however, she has been out of the job market for a number of years.”  We do not find this as an expression of the court’s anticipation of Wife’s future employment.  Instead, we find the court was contemplating the difficulty Wife might face trying to find employment because of her long absence from the job market.  We also find no indication the parties anticipated Wife’s re-entry into the workforce at the time they entered into the settlement agreement.  In fact, except for some part-time employment, the Wife remained unemployed from the time of the decree until the day before the hearing.

Wife also argues the reduction in alimony would not allow her to maintain the standard of living she enjoyed during the marriage.  We find no error in the family court reducing the alimony award to $3,000 a month when Wife is now also earning $1,387 a month and listed the property she owns as valued at $340,623.  In addition, Wife asserts the reduction in alimony penalizes her for gaining employment.  We find this assertion meritless.  An alimony award should not serve as a disincentive for a spouse to make reasonable efforts to improve her employment potential or to dissuade the spouse from providing, to the extent possible, for her own support.  Brandi v. Brandi, 302 S.C. 353, 358, 396 S.E.2d 124, 127 (Ct. App. 1990).         

Being mindful of our standard of review, which gives the family court judge discretion in modifying alimony, we find Wife’s new employment and income is a sufficient change of circumstances to warrant the modification of the alimony award from $4,000 to $3,000 per month. 

II.      Attorney’s Fees 

Wife argues the family court erred by only awarding her a portion of her attorney’s fees and costs.  We disagree. 

An award of attorney’s fees and costs is in the discretion of the family court and will not be overturned absent an abuse of discretion.  Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989).  To prevail on appeal, a party must show the court’s conclusions were without factual support, resulted in prejudice, and amounted to an error of law.  Alliegro v. Alliegro, 287 S.C. 154, 157, 337 S.E.2d 252, 254 (Ct. App. 1985). 

In determining the proper amount to award, we consider: the nature, extent, and difficulty of the services rendered; the time necessarily devoted to the case; the professional standing of counsel; the contingency of compensation; the beneficial results obtained; and the customary legal fees for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). 

We recognize Wife’s attorney spent a considerable amount of time deciphering Husband’s confusing business records in defending the Husband’s claim for a reduction of alimony.  However, Wife is capable of paying her own fees.  Her gross monthly income, including the reduced alimony, is $4,387 and she owns $340,623 in total property according to her financial declaration.  Furthermore, as to the beneficial results obtained, although the family court rejected Husband’s contention that alimony should be reduced due to his decrease in income, it nevertheless granted his request for a reduction based on Wife’s new employment.  Therefore, Husband was successful in his claim for a reduction in alimony.  Based on the above, we find the family court did not abuse its discretion in awarding Wife $2,500.00 in attorney’s fees and costs.

CONCLUSION 

For the foregoing reasons, the decision of the family court is

AFFIRMED.

HUFF, STILWELL, and CURETON, JJ., concur.