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2005-UP-010 - Melton v. melton

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Gary Gene Melton,        Appellant,

v.

Deborah J. Melton,        Respondent.


Appeal From Kershaw County
Rolly W. Jacobs, Family Court Judge


Unpublished Opinion No. 2005-UP-010
Submitted December 1, 2004 – Filed January 10, 2005


AFFIRMED


Melody Lynn James, of Camden, for Appellant.

Douglas J. Robinson, of Camden, for Respondent.

PER CURIAM:  Gary Gene Melton brought this action against his former wife, Deborah J. Melton, seeking a termination or reduction in alimony based on his substantial change of circumstances.  The family court refused to modify Husband’s alimony obligation.  We affirm. 

FACTS

Husband and Wife were divorced in 2001, after thirty-one years of marriage. At the time of the divorce, Husband had retired from the military and was employed as a bombing range manager for the Dare County Air Force Bombing Range.  Between his retirement benefits and his salary as a bombing range manager, Husband's monthly income was $5,361.  Wife, on the other hand, had a monthly income of approximately $227, which she earned from rents and from caring for her grandchildren, her brother, and her father. [1]    The parties agreed Wife was entitled to half of Husband's retirement benefits, and the family court awarded Wife an additional $1,000 in alimony per month.

Approximately four months after the divorce, Husband was terminated from his job at the bombing range.  The month following the loss of his employment, Husband filed an action with the family court to terminate or reduce his alimony obligation.  By way of counterclaim, Wife sought an order from the family court that required Husband to (1) pay his monthly alimony obligation to the court, (2) submit to a medical exam for life insurance purposes, and (3) pay her attorney's fees and court costs. A pendente lite hearing was held in November of 2001, and at that time, the family court denied Husband's request for relief

Two weeks after Husband filed his complaint, Wife filed a rule to show cause, alleging Husband was in contempt of the divorce decree for failing to pay alimony in a timely fashion.  Judge Brooks P. Goldsmith continued the rule to show cause and ordered that it be heard at the same time as the hearing on the merits for Husband’s action to reduce or terminate alimony.

In February of 2002, six months after being terminated from the bombing range, Husband acquired a job at Miller Trophy Room Preservation making ten dollars an hour.  Husband also earned money from renting out a house and large tract of land he owned.

In March of 2003, a hearing on the merits was held.   At the hearing, Husband testified that he received  $2,239 per month from his salary at Miller Trophy, $884 per month in retirement benefits, and $440 per month in rental income.  Thus, his total monthly income was $3,563.  On Husband's financial declaration, he listed $3,767 worth of monthly expenses, which included his monthly alimony obligation of $1,000.  

The family court found that although the loss of Husband's job was "an important change," he was not entitled to a reduction in alimony.  The court explained that Husband had not only replaced a great deal of his lost income, but also that Husband's expenses had decreased significantly since alimony had originally been set.  Specifically, the court noted that Husband no longer paid $125 a month to rent out a mobile home lot; he no longer paid $1,061.31 a month for his half of the mortgage on and upkeep for the marital home; he no longer paid $238 a month toward his pension; and he no longer paid $177 a month for life insurance.  Pursuant to its determination not to reduce Husband’s alimony, the family court awarded Wife $4,000 in attorney’s fees.  However, the court declined to hold Husband in contempt for his failure to make timely alimony payments, noting the late payments occurred after Husband initially lost his job and finding Husband’s failure to pay on time was not willful.  

Husband appeals, arguing the family court erred by not reducing or terminating his alimony and by awarding Wife attorney's fees. 

STANDARD OF REVIEW

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).  The modification of alimony is within the sound discretion of the family court and will not be overturned absent an abuse of that discretion.  Riggs v. Riggs, 353 S.C. 230, 236, 578 S.E.2d 3, 6 (2003).

LAW/ANALYSIS

I.       Reduction or Termination of Alimony

Husband argues the family court’s failure to reduce or terminate his alimony was an abuse of discretion for three reasons.  First, Husband claims the evidence in the record does not support the court’s finding that his financial condition had not substantially or materially changed.  Second, Husband argues the family court abused its discretion by focusing only on his circumstances rather than the circumstances of both parties.  Third, Husband alleges the family court erred by considering “the Traxler Alimony guidelines” when making its decision.  We disagree with all of these arguments.

In regard to his financial condition, Husband alleges his expenses have increased since the divorce, pointing to the $3,767 worth of expenses he has listed on his current financial declaration as compared to the $3,484 in monthly expenses he had when alimony was originally set.  However, included in Husband’s current financial declaration is his $1,000 alimony obligation.  Because the family court was asked to reconsider Husband’s alimony obligation, the amount he currently pays in alimony should not be factored in as an expense.   After subtracting the $1,000 from the $3,767 in monthly expenses, Husband’s monthly expenses are $717 less than they had been when alimony was originally set.  Furthermore, the deductions from Husband’s gross pay are less now than they were at the time of the parties’ divorce because he no longer pays $373 per month toward his pension plan. [2]   Thus, Husband’s expenses and deductions have been reduced by nearly $1,100 since the parties’ divorce.

Pursuant to the original divorce decree, Husband was required to pay Wife $1,000 in alimony in addition to his agreement to pay her half of his retirement benefits, which at the time amounted to $850. After paying these sums to Wife, Husband was left with a gross monthly income of $3,511. [3]   From this monthly income, $373 was deducted to fund his pension. His monthly income therefore was $3,138 before taxes, and his monthly expenses were $3,484, [4] leaving him with a $346 deficit each month.  Now that Husband has a lower paying job, his monthly income is  $3,563, [5] and his expenses, including alimony, are $3,794. [6]   Thus, his deficit is only $231 per month.  Based on these numbers, and despite the fact that Husband’s expenses exceed his income, we agree with the family court’s finding that there has been no material change to Husband’s financial circumstances.    Eubank v. Eubank, 347 S.C. 367, 372, 555 S.E.2d 413, 416 (Ct. App. 2001) (stating that, in order to justify modification or termination of an alimony award, the changes in circumstances must be substantial or material). 

Husband also argues the family court erred by considering only his circumstances and not the circumstances of both parties.  We note initially that in Husband’s pleadings, the only change in circumstance he specifically listed was his loss of income.  Moreover, the family court did consider the Wife’s circumstances and found her “income and ability to earn income [had] not changed.”  The evidence in the record supports this finding, and we therefore find no error. 

Husband also urges us to reverse the family court because it considered “the Traxler alimony guidelines.”  Husband asserts this was error because “the guidelines are not approved for use for the family court . . . and results are not subject to cross-examination and confrontation by the parties.”  Even assuming, without deciding, that the family court’s consideration of the guidelines was error, Husband fails to demonstrate how the use of these guidelines prejudiced him.  See Blakely v. Blakely, 249 S.C. 623, 625, 155 S.E.2d 857, 858 (1967) (stating that an alimony order will not be reversed unless the alleged error is material and prejudicial to the substantial rights of the complaining party). As shown above, Husband’s income and expenses had not materially or substantially changed.  Therefore, regardless of whether the Traxler guidelines were considered, Husband was not entitled to a reduction or termination of his alimony obligation.

II.         Attorney’s Fees

Husband next argues that the family court’s award of attorney’s fees should be reversed because of the adverse impact they have on his finances. [7]   We find no error in the family court’s award of attorney’s fees.

The award of attorney’s fees is a matter within the family court’s discretion.  Miles v. Miles, 355 S.C. 511, 520, 586 S.E.2d 136, 141  (Ct. App. 2003).  The factors to consider when awarding attorney’s fees are (1) the parties’ ability to pay their own fees, (2) the beneficial results obtained by the attorney, (3) the parties’ respective financial conditions, and (4) the effect of the fee on each party’s standard of living.  E.D.M v. T.A.M, 307 S.C. 471, 476-477, 415 S.E.2d 812, 816 (1992).  In this case, the family court specifically found that Husband had “sufficient income as well as a great deal of assets out of which he can pay fees, while [Wife] generates little income and has comparatively modest assets.” 

The evidence in the record demonstrates that Husband generates more income than Wife each month.  Furthermore, according to their financial declarations, Husband has nearly $190,000 worth of assets, while Wife has only $35,000 worth of assets.  Thus, we find no error in the family court’s decision to award attorney’s fees to Wife.

Husband also argues that he should not have to pay for the 2.7 hours Wife’s attorney spent working on the contempt action.  We find the family court did not award Wife attorney’s fees for these hours. 

Wife requested that her attorney be reimbursed for the 30.8 hours he spent on her entire case, including the contempt action.  At her attorney’s rate of $150 per hour, Wife’s total fees were $4,620.  The family court, however, only awarded Wife $4,000 in attorneys fees.  Thus, Husband was not required to pay for approximately four hours worth of Wife’s attorney’s fees, which presumably included the 2.7 hours Wife’s attorney spent on the contempt action.   

CONCLUSION

We find Husband was not entitled to an alimony reduction or termination because he failed to show a material or substantial change in his financial circumstances.  We further find the family court’s award of $4,000 in attorney’s fees to Wife was not an abuse of discretion.  Accordingly, the order of the family court is

AFFIRMED.

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


[1] In the parties’ divorce order, the family court noted that “[Wife] dropped out of high school in the 10th grade, marrying [Husband] when she was 17 years old.  During the next 14 years, she and the children followed [Husband] from military base to military base . . . .  These moves were not conducive either to building up job skills or retirement funds.”  However, the court did impute to Wife a monthly income of $922, finding she was capable of working forty hours a week for minimum wage. 

[2] In its order, the family court found Husband no longer paid $238 per month toward his pension.  However, the financial declaration Husband submitted at the time of the parties’ divorce lists a $373.45 deduction for Husband’s “retirement or pension plan.”

[3] Husband’s gross monthly income had been $5,361 at the time of the divorce.  Taking away the $1,000 in alimony and the $850 in retirement benefits, his gross monthly income was $3,511.

[4] Or, if we were to consider alimony as an expense like Husband does in his current financial declaration, Husband’s income immediately after the divorce decree was $4,138 a month and his expenses were $4,484, still leaving a $346 deficit.

[5] Husband makes $2,239 per month at Miller Trophy, $884 per month from his retirement, and $440 per month from rents.

[6] We also note that two months after the parties’ divorce, Husband remarried.  Although Husband admittedly includes some of his new wife’s expenses on his financial declaration, he did not in turn include her monthly income of $1,400.

[7] Husband also argues that the award of attorney’s fees should be reversed if we reverse the family court’s alimony decision.  Because we affirm the family court’s decision not to reduce or terminate Husband’s alimony, we need not address this issue.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that appellate court need not address remaining issues when disposition of prior issues is dispositive).