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2004-UP-539 - Murray v. Murray
PER CURIAM: In this termination of alimony action brought by Appellant Larry Hathcock against Respondent Betty Hathcock, Appe

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

Wanda S. Murray, Respondent,

v.

James H. Murray, Appellant.


Appeal From Sumter County
 M.D. Myers, Family Court Judge


Unpublished Opinion No.  2004-UP-539
Submitted October 1, 2004 – Filed October 21, 2004


AFFIRMED


Lohman D. Reiter, II, of Sumter, for Appellant.

G. Murrell Smith, Jr., of Sumter, for Respondent.

PER CURIAM:  In this domestic action brought by James Murray (Husband) against ex-wife Wanda Murray (Wife), Husband challenges the family court’s refusal to terminate military retirement benefit payments to Wife pursuant to a 1990 divorce degree.  Husband also challenges the award of attorney’s fees to Wife.  We affirm. [1]

Facts          

James and Wanda Murray divorced in 1990 after fourteen years of marriage.  Both parties served in the military and the divorce decree awarded each 30 percent of the other’s military retirement benefits based on the parties’ rank and length of service at the time of the 1990 decree.  Applying the 30 percent figure, the court concluded that Husband should pay Wife $318.33 per month, plus all cost of living raises. The court also determined the funds paid to Wife were to be deducted from Husbands gross, non-disability retirement benefits.  Husband retired from the United States Air Force in 1999 and the Veteran’s Administration found Husband to be 60 percent disabled.  At the time of this action, Husband received monthly payments of $1,682.00 for military retirement and $864.00 in disability payments. [2]  

After Husband retired, Wife requested payment in accordance with the 1990 divorce decree and Husband directed her to seek payment from the Defense Finance and Accounting Services (DFAS).  DFAS declined to recognize the divorce decree because it did not include a specific formula required by DFAS to calculate the pay due to Wife.  Wife filed a complaint for payment and, after a hearing, the family court found for the Wife.  Husband filed a motion to reconsider, which the court denied.  This appeal follows.         

Standard of Review

In appeals from the family court, this court has authority to find the facts in accordance with its own view of the preponderance of the evidence. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).  This broad scope of review, however, does not require us to disregard the findings of the family court.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).         

LAW/ANALYSIS         

I.                  Military Retirement Benefits

Husband argues the family court erred in finding Wife is still entitled to receive a portion of the Husband’s military retirement benefits.  We disagree. 

Courts do not have the authority to treat disability benefits as property divisible upon divorce.  Mansell v. Mansell, 490 U.S. 581 (1989).  Husband contends that because his retirement benefits were reduced when he waived his retirement pay to receive disability benefits, Wife should bear the burden of the loss, or alternatively, that the loss should be borne equally.  However, there is no evidence that at the time of the divorce the court factored in whether Husband was entitled to receive any disability benefits in lieu of retirement pay.  The court made its calculation based solely on the amount Husband was then entitled to draw, which represented what the Husband owed to Wife as a portion of the marital property.  

Military retirement benefits accrued during the marriage are subject to equitable division.  Tiffault v. Tiffault, 303 S.C. 391, 401 S.E.2d 157 (1991).  Any retirement pay accrued after the divorce, however, would constitute non-marital property.  Therefore, the divorce decree determined the fixed sum that Husband owed Wife for the time the two spent as husband and wife.  The percentage was to be taken from the amount of retirement Husband had accrued to that point, leaving Wife with a precise figure, explicitly excluding any disability pay from the total sum. 

The divorce decree clearly stated that Wife was entitled to $1,061.00, plus cost of living increases, and further indicated that if the military’s retirement plan administrator failed to pay Wife, the Husband should pay from his personal assets.  Husband voluntarily waived his right to a portion of his earned retirement benefits to receive disability pay and his action should not injure Wife, who had a right to the retirement pay accrued during the marriage.  See Price v. Price, 325 S.C. 379, 480 S.E.2d 92 (Ct. App. 1996) (holding husband may not subvert support obligations to his former wife by waiving military retirement pay in favor of disability benefits).  Thus, the trial court properly interpreted the divorce decree awarding Wife a specific sum to be paid from Husband’s non-disability retirement benefits.  

II.               Attorney’s Fees

Husband argues the family court erred in awarding Wife attorney’s fees.  We disagree.

An award of attorney’s fees will not be overturned absent an abuse of discretion.  Bowers v. Bowers, 349 S.C. 85, 99, 561 S.E.2d 610, 617 (Ct. App. 2002).  When determining the amount of fees to award, the court must consider several factors including 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).  In this case, the family court detailed the rationale for its award in its final order, addressing the applicable Glasscock factors.  Accordingly, the family court did not abuse its discretion in its award of attorney’s fees.

AFFIRMED.

STILWELL, BEATTY and SHORT, JJ., concur.


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

[2] Veterans receiving retirement pay may also apply for disability benefits for a disability obtained from military service.  However, “[i]n order to prevent double dipping, a military retiree may receive disability benefits only to the extent that he waives a corresponding amount of his military retirement pay.”  Mansell v. Mansell, 490 U.S. 581, 583 (1989).  Military retirees often prefer to waive retirement pay in favor of disability benefits because disability benefits are exempt from taxation.  Id. at 583.