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2004-UP-538 - Hathcock v. Hathcock

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 M. Hathcock, Appellant,

v.

Betty M. Hathcock, Respondent.


Appeal From York County
 Robert E. Guess, Family Court Judge


Unpublished Opinion No.  2004-UP-538
Submitted October 1, 2004 – Filed October 21, 2004


AFFIRMED


Thomas F. McDow, of Rock Hill; James R. Honeycutt, of Fort Mill; and James B. Richardson, Jr., of Columbia, for Appellant.

Lohman D. Reiter, II, and G. Murrell Smith, Jr., both of Columbia, for Respondent.

PER CURIAM:  In this domestic action brought by Larry Hathcock (Husband) against ex-wife Betty Hathcock (Wife), Husband argues the family court erred by declining to terminate alimony and refusing to award attorney’s fees.  We affirm. [1]

Facts

In September 1996, a York County family court awarded Betty Hathcock a divorce from her husband of twenty-eight years, Larry Hathcock, on the ground of adultery.  The divorce decree required Husband to pay Wife $400.00 per month in alimony.   In 1998, approximately two years after the divorce, Wife began a romantic relationship with Mancer Flatten that included cohabitation.  Flatten resided in Wife’s house, yet his employment as a contractor frequently required him to work out of town and often he would stay in the home only on weekends.  The romantic relationship lasted for two years.  Thereafter, including the two years leading up to the commencement of this trial, Flatten lived in the house in a platonic capacity, sleeping sometimes on the couch and sometimes in the bedroom with Wife. 

Flatten contributed to the economic state of the household.  He paid Wife a monthly rent of $250.00.  He occasionally bought groceries and sometimes paid for dinner when the two dined together.  He also finished building a screened-in porch that he began before he lived with Wife and provided materials and worked on constructing a swimming pool deck at the home.  In 2001, Flatten bought land and planned to buy a trailer to live in on the property.  Flatten moved out of Wife’s home in July 2002; however, his driver’s license lists his address as Wife’s residence and he continues to receive mail at the location.

Husband brought an action seeking to modify the 1996 divorce order requesting termination of alimony and attorney’s fees.  Wife asserted a general denial defense and counterclaimed for attorney’s fees.  The family court concluded applicable law did not afford Husband modification of the prior divorce order and denied both parties’ attorneys’ fees.  This appeal follows.

Standard of Review

Questions concerning alimony rest within the sound discretion of the family court judge whose conclusion will not be disturbed absent a showing of abuse of discretion.  Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct. App. 2001).  “An abuse of discretion occurs when the decision is controlled by some error of law or is based on findings of fact that are without evidentiary support.”  Id. at 224, 553 S.E.2d at 495. 

LAW/ANALYSIS                

I.                  Termination of Alimony

Husband argues the trial court erred in finding Wife’s relationship with Flatten was not “tantamount to marriage,” which would entitle him to termination of alimony responsibility.  We disagree.

South Carolina common law in effect at the time of the filing of this action governs this case. [2]   Changed conditions may warrant modification or termination of alimony.  S.C. Code Ann. § 20-3-170 (1985).  A court may terminate alimony when a supported ex-spouse is involved in a relationship tantamount to marriage.  Bryson, 347 S.C. at 226, 553 S.E.2d at 496.  Husband contends that Wife had a relationship with Flatten tantamount to marriage, evidenced by the initial sexual relationship, the fact that Flatten resided at the house for four years, and his assistance with various household improvements. 

When our courts have found changed circumstances based on a relationship tantamount to marriage, the supported ex-spouse has been involved in a relationship in which the parties have economically relied upon one another.  Miles v. Miles, 355 S.C. 511, 517, 586 S.E.2d 136, 139 (Ct. App. 2003);  See Bryson, 347 S.C at 225, 553 S.E.2d at 496 (Ct. App. 2003) (holding that relationship was tantamount to marriage where supported ex-spouse had lived together for twelve years, had moved to Florida together, and continued to engage in sexual relations throughout their involvement).  No evidence exists from the record indicating that such reliance existed in this case.  Flatten’s economic contributions to the household were minimal and there is no evidence that Wife used her alimony to support Flatten in any way.  Flatten paid Wife rent for the privilege of residing on the premises, and even through the duration of the sexual relationship, Flatten retained the status of tenant.  Moreover, the evidence suggests that Flatten spent a majority of nights out of town tending to his business duties.

Husband argues on appeal that the lower court erred in its analysis and that this error affords him a reduction or termination of alimony.  Husband’s exclusive argument on appeal is that the relationship was tantamount to marriage.  When a court determines such a relationship exists, the only result can be termination rather than reduction of alimony.  In Bryson, this court overruled the family court’s decision reducing alimony rather than terminating it where the court found a relationship tantamount to marriage.  Bryson, 347 S.C. 221, 553 S.E.2d 493.  Husband’s complaint and the testimony reveal that Husband specifically requested termination of alimony at trial, and the only mention of modification lies in the court order, which concluded the law did not require it to modify or terminate Husband’s obligation. 

Accordingly, the trial court correctly found the relationship between Wife and Flatten was not tantamount to marriage, and therefore correctly denied Husband termination of alimony.  

II.               Attorney’s Fees

Husband argues the family court erred in denying his request for attorney’s fees.  We disagree.

The family court’s decision whether to award attorney fees is a discretionary matter and will not be overturned absent an abuse of discretion. Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).  We find no abuse of that discretion in the family court’s refusal to grant attorney fees to Husband.

AFFIRMED.

STILWELL, BEATTY and SHORT, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] In 2002, the South Carolina General Assembly amended Section 20-3-150 of the South Carolina Code, changing the conditions under which the court may modify or terminate alimony, including cohabitation.  The 2002 amendments became effective in June 18, 2002 after the filing of this action, thus the family court correctly disregarded the 2002 amendments in its analysis.