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2004-UP-640 - Myers v. Cosgrove

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

Vickie F. Myers,        Respondent,

v.

Christopher Carlton Cosgrove,        Appellant.


Appeal From Greenville County
Robert N. Jenkins, Sr., Family Court Judge


Unpublished Opinion No. 2004-UP-640
Submitted November 1, 2004 – Filed December 20, 2004


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Maggi Fields Bailey, of Greenville, for Appellant.

Jefferson G. Wood and E. Kimberly Berry, both of Greenville, for Respondent.

PER CURIAM:  In this action for child support, a father appeals an award of both retroactive and prospective child support and attorney’s fees to the mother.  We affirm in part, reverse in part, and remand. [1]

FACTS

Vickie F. Myers (“Mother”) and Christopher C. Cosgrove (“Father”) dated and cohabitated intermittently from July 1997 until July 1999.  In November 1998, the couple had a child.  Mother brought this action on May 2, 2001, pursuant to section 20-7-420 of the South Carolina Code (Supp. 2003), seeking custody of the minor child, child support, retroactive child support, and attorney’s fees.   

In a temporary order, the family court ordered a paternity test.  If the paternity test was positive, Father was ordered to pay the costs of the test and child support retroactively from the date the action was filed.  The test results, which were positive, were mailed to both parties on August 16, 2001; however, Father denies having any knowledge of the results until January 2002.  Also in January 2002, the case was administratively stricken from the active trial docket pursuant to the “270 day rule.”

In an order dated September 27, 2002, the court denied Mother’s first motion to restore the action, in part because discovery was not complete.  This was due largely to Father’s failure to cooperate with Mother’s discovery requests.  The court gave Mother leave to file another motion to restore when discovery was complete.  The court granted mother’s second motion to restore the action as well as a contemporaneous motion to amend the pleadings.  The motion to amend sought to include a request for Father to carry life insurance for the benefit of their child.  The court also found Father waived the mediation requirement by his refusal to participate.   

At the final hearing, Mother testified she is currently employed as a legal assistant with a reported gross monthly income of $2,150. Health insurance expenses each month for the minor child are $120.  Daycare initially cost $303 per month but at the time of the final hearing cost approximately $275 per month.  Mother also has custody of a seven-year-old son from a previous relationship for which she receives no child support.                                              

Father testified he is a part-time tattoo artist apprentice with a monthly income of $600. He has completed three and a half years of a five-year apprenticeship.  He is thirty-two years of age and in good health.  He reported living expenses of $810.87, including $237 per month child support for another child.  Father, however, receives periodic gifts of cash from his mother, who also pays for the mortgage on his residence, which they jointly own.  He has not filed a tax return for the last five years.  When asked why he did not file tax returns, he responded, “I’m making six hundred dollars ($600) a month. And I do not owe the IRS any monies. You do not have to file your income tax if you do not owe any money.”      

 The family court found Father to be the child’s biological father, gave custody to Mother, awarded her child support of $589 per month, and required Father to pay retroactive child support from the date of the initial filing.  The court ordered that back child support be paid in two lump sum payments and ordered   Father to pay $7,500 of Mother’s attorney’s fees and costs.  This appeal followed.

STANDARD OF REVIEW

In appeals from the family court, this court has authority to find the facts in accordance with our 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).  We are mindful that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).

LAW/ ANALYSIS

I. Child Support

Father claims the family court erred in awarding Mother child support of $589 per month based upon an imputed income of $2,929 per month.  We disagree.

The amount of a child support award is within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion.  Smith v. Smith, 264 S.C. 624, 628, 216 S.E.2d 541, 543 (1975).  In determining the amount of child support, crucial factors include: the needs of the children; the incomes, earning capacities and assets of the parents; and the health, ages, general physical condition, and living expenses of the parents.  Bradley v. Bradley, 285 S.C. 170, 172-73, 328 S.E.2d 647, 648 (Ct. App. 1985). 

At trial, the family court heard an abundance of testimony concerning the earning capacities of the parties, much of it conflicting.  On his financial declaration, Father claimed a gross monthly income of $600 per month because he only worked three days a week as a tattoo apprentice.  He testified the benefit of the apprenticeship is a resulting recommendation into a tattoo guild, though he admitted “you don’t have to be a member of the [guild to] set up shop and make money tattooing.”  Mother testified Father worked both part-time and full-time as a tattoo artist when she was living with him and he averaged $150 per day, after expenses.  She stated he had a reputation in the community as a “very good artist.”  Father, on the other hand, stated he usually averaged only $50 per day.         

Ten years ago, Father was employed as a construction worker making approximately $14 per hour.  He quit this job to follow the Grateful Dead around the country.  Even though he did not graduate, he received a certificate of completion in 1991 from the Harley Davidson mechanic’s program.  Furthermore, he was proficient enough in motorcycle maintenance to build his own bike out of spare parts.  Mother provided current occupational employment wage statistics for motorcycle mechanics and highway maintenance workers in Florida, where Father currently resides.  Construction workers with experience can earn $13 per hour, while entry-level mechanics can earn as much as $10 per hour.  Father, however, testified he was injured in “several” car wrecks, preventing him from doing any work that requires sitting or standing.  He did not, however, submit any evidence to corroborate these statements.  He also admitted he was not “really fighting” the denial of his disability claim because he did not “need to be living off the state.”  He testified he could “make enough to pay for [his] food on the table” with his salary of $150 per week.  

Although this court has authority to find the facts in accordance with our own view of the evidence, we are mindful that the family court judge was better situated to evaluate witness credibility and assign comparative weight to their testimony.  Bowers, 349 S.C. at 91, 561 S.E.2d at 613.  It is abundantly clear from the family court’s order that the trial judge found Father’s testimony grossly lacking in the areas of consistency and credibility, and from what we can glean from the record on appeal, we agree.  Husband contradicted himself throughout his testimony about his business, finances and the facts of this case. For instance, on direct examination he testified his tattoo business failed because he “didn’t have enough business smarts to keep it going.”  On cross-examination, however, he claimed the business failed because “the guy [he] was going in partnership with [was] tripped out on drugs.  And he made [them] get kicked out of [their] studio.”  In a deposition, Father stated that he was involved in litigation to recoup these business losses.  When questioned on the matter at trial Father explained he “never pursued” the lawsuit.  In fact, he could not even recall the name of the attorney representing him in the alleged action.  Similarly, at trial, Father denied having knowledge of the paternity test results until shortly before trial began, while in his deposition he admitted learning of the results in January 2002. 

The South Carolina Code defines income of a parent as “the actual gross income of the parent, if employed to full capacity, or potential income if unemployed or underemployed.”  27 S.C. Code Ann. Regs. 114-4720(A)(1) (Supp. 2003).  To determine potential income, “the court should determine the employment potential and probable earnings level of the parent based on that parent’s recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.”  27 S.C. Code Ann. Regs. 114-4720(A)(5)(b) (Supp. 2003).  For the reasons discussed above, we find no error in the family court’s acceptance of Mother’s testimony regarding Father’s earning potential for the purposes of calculating child support.

We likewise find the family court’s consideration of money Father receives from his mother a proper factor in the computation of child support.  In regard to computing income for the purpose of determining child support, the regulations provide:

(2)(b) In addition to determining potential earnings, the court should impute income to any non-income producing assets of either parent, if significant, other than a primary residence or personal property . . . .

Gross income does not include: . . .

(3)(c) In-kind income; however, the court should count as income expense reimbursements or in-kind payments received by a parent from self-employment or operation of a business if they are significant and reduce personal living expenses, such as a company car, free housing, or reimbursed meals.

27 S.C. Code Ann. Regs. 114-4720(A)(2)(b) & (A)(3)(c) (emphasis added).

Father admitted his mother gave him large amounts of cash in 1998, 1999, and 2002 for maintenance of the house they jointly own; however, he submitted no evidence that the money was actually spent on anything relating to the upkeep of the house.  His mother also pays his portion of the mortgage, amounting to approximately $5,149.92 per year.    In this case, Father admits that by maintaining the house, he is managing an investment for his mother.  Because Father’s personal expenses are substantially reduced by the payments he receives for this service, we conclude the money given to Father falls under the exception to the general rule that in-kind income is not gross income for the purposes of computing child support.

Father argues that because he is not obligated to pay taxes on this income, and there is no guarantee he will continue receiving these monetary gifts in the future, it should not be considered as “gross income” for the purposes of calculating child support.  We are not convinced.  In Mobley v. Mobley, 309 S.C. 134, 139, 420 S.E.2d 506, 509 (Ct. App. 1992), this court held a husband’s income from employee benefits, including housing and utilities, could be treated as income for purposes of determining child support payments even though the husband had “no tax liability for the value of the housing” or any guarantee that he would continue to receive the bonuses.

Having reviewed the record, we find by a preponderance of the evidence that Father has a potential to earn significantly more income. We therefore affirm the family court’s determination that Father’s imputed income is $2,929 per month.  Consequently, we uphold the family court’s award of $589 per month in child support.  

II. Attorney’s  Fees

Father claims the family court erred in awarding Mother $7,500 in attorney’s fees.  We disagree.

“The award of attorney’s fees is within the discretion of the court.”  Hardwick v. Hardwick, 303 S.C. 256, 261, 399 S.E.2d 791, 794 (Ct. App. 1990).  In determining whether to award attorney’s fees, the court should consider each party’s ability to pay his or her own fees, the beneficial results obtained by the attorney, the parties’ respective financial conditions, and the effect of the fee on each party’s standard of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 815 (1992).

We find no abuse of discretion in requiring Father to pay a portion of Mother’s attorney’s fees.  The family court found Mother owed her attorney at least $9,380.50.  In addition, Mother incurred costs of $1,075.70 during the discovery process due to Father’s refusal to cooperate.  Father also failed to comply with court ordered mediation, prolonging this litigation.

 Father’s potential income, combined with his earnings for managing the property on which he lives, brings his total gross monthly income to an amount greater than Mother’s.  Furthermore, Father has equity in the Florida residence of approximately $29,000. [2]    

On the other hand, Mother has no assets or savings, and is burdened by considerable debt.  She cannot afford to pay her attorney’s fees without substantially impacting the standard of living of her and her children.  See Pendergast v. Pendergast, 354 S.C. 32, 40, 579 S.E.2d 530, 534 (Ct. App. 2003).  Because of Father’s conduct, including his failure to comply with the mediation order or cooperate with discovery, Mother incurred a greater amount of attorney’s fees.  Mother testified, “[h]e just kept saying, ‘Take me to court’” when she would beg him for money.  In fact, Father admitted he “didn’t give her any other option other than coming to court.”  This court finds his conduct unnecessarily prolonged this litigation.

Mother’s counsel achieved beneficial results, as she received a substantial award of child support, which we now affirm.  As the family court’s appropriate consideration of the E.D.M. factors in determining the amount of attorney’s fees is apparent from the record, we conclude the family court did not err in requiring Father to contribute $7,500 toward Mother’s attorney’s fees.

III. Lump Sum Payments

Father claims the family court erred in requiring him to pay attorney’s fees and retroactive child support in large lump sum payments.  We disagree.

The family court ordered Father to pay $2,500 of the attorney’s fees in a lump sum.  It further ordered three equal installments of $3,951.67 for retroactive child support.  Father has a potential income of $2,929 per month and substantial equity in his home.  He has the ability to pay the past due child support and attorney’s fees in the time allotted and this will not create any undue hardship or burden on him.  Accordingly, we affirm the award of lump sum payments for the attorney’s fees and child support.

IV. Life Insurance Award Reservation

Father claims the family court erred in reserving an award of life insurance. We agree. 

South Carolina recognizes the availability of life insurance as security for the support obligation.  See S.C. Code Ann. § 20-3-160 (Supp.2003).  “The family court is within its legal authority to require a supporting spouse to maintain a life insurance policy naming the child as beneficiary to insure the continued support of the minor child.”  Ivey v. Ivey, 286 S.C. 315, 318, 334 S.E.2d 123, 125 (Ct. App. 1985).  This imposition, however, must be based on compelling reasons, such as failure to pay, which make the security a necessity.  Id. 

Although the family court denied Mother’s request for Father to maintain life insurance with the child as irrevocable beneficiary, the court reserved the right to grant the request in six months. A reservation of an award is not standard in child support cases because “if it subsequently appears security is necessary, the continuing jurisdiction of the family court affords ample opportunity to require security by life insurance.”  Id.   The family court may reserve an award if there are present or foreseeable circumstances warranting the reservation.  Hardy v. Hardy, 311 S.C. 433, 435-36, 429 S.E.2d 811, 813 (Ct. App. 1993).  When there are no compelling reasons for an award of life insurance as security for the child support obligation at the time of trial, and “no indication of physical or mental illness, foreseeable change in need in the future, or such other extenuating circumstance,” reservation is not appropriate.  Donahue v. Donahue, 299 S.C. 353, 363, 384 S.E.2d 741, 747 (1989).       

Because the record does not reflect any specific factual findings to support reservation of the grant of life insurance as security for support, we reverse the family court’s ruling on this issue.  However, we remand this issue back to the family court for additional findings to determine what extenuating circumstances exist, if any, to justify a reservation of the award.

CONCLUSION

For the reasons stated herein, the family court’s rulings are hereby

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HEARN, C.J. , GOOLSBY and  WILLIAMS, JJ. , concur.


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

[2] Current equity in the home is approximately $58,000, split between the co-owners.