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2005-UP-102 - Waters v. Waters

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

Rebecca J. Waters,        Respondent,

v.

Sheldon K. Waters,        Appellant.


Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court Judge


Unpublished Opinion No. 2005-UP-102
Submitted January 1, 2005 – Filed February 10, 2005


AFFIRMED in part, REVERSED in part, and REMANDED


Jeffrey Falkner Wilkes, of Greenville, for Appellant.

Catherine E. Fairey and O. Doyle Martin, both of Greenville for Respondent.

PER CURIAM:  In this divorce case, Shelden K. Waters (Husband) appeals from the family court’s order requiring him to pay child support past his minor child’s age of majority, imputing income to him under the child support guidelines, equitably dividing marital debt, and awarding attorney’s fees to Rebecca J. Waters (Wife).  We affirm in part and reverse in part and remand.1 

FACTS

Husband and Wife were married for twenty-nine years.  The couple lived in Michigan during the first part of their marriage.  Husband worked at the same job for eighteen years and was the primary wage earner.  Wife stayed home and cared for the couple’s four children.  Tragically, the couple’s daughter, Olivia, died in the collapse of a stroller when she was five years old.  A lawsuit followed with a judgment of $335,000.  The parties used part of the money to set up a trust fund of $30,000 each for their remaining three children of whom Adam was the youngest child with the provision the funds would be available at age eighteen.  Following the accident, Husband was extremely depressed.  Wife convinced Husband to move to South Carolina despite his reservations about finding commensurate employment.  Husband had difficulty obtaining employment at the same pay level he enjoyed in Michigan and although both parties had difficulty dealing with the death of their daughter, Husband continued to support the family after moving to South Carolina. 

Despite their attempt to “start over,” Husband and Wife continued to experience marital difficulties after moving.  The couple eventually separated and Wife filed for divorce on the ground of physical cruelty and sought custody, child support, equitable apportionment of the marital property, and attorney’s fees.  Following the separation, Adam, the parties’ only minor child, experienced significant problems.  Adam was arrested several times, assaulted his mother, and was hospitalized following an overdose of alcohol and medication.  At the time of the trial, Adam was seventeen years old and not currently enrolled in high school.  Wife testified she “hoped” Adam would complete his education and she had “made arrangements” for Adam to attend adult education classes.  Wife asserted she would only consent to Adam remaining in her home if he was in school and working. 

Notwithstanding Adam’s behavioral difficulties, Wife sought custody of him.  Additionally, she sought an increase of child support and continuation of child support for one year after Adam reached majority to allow him to complete his education.  At the time of the hearing, Wife was employed as a bookkeeper and earned $43,548 annually.  Although Wife testified Husband was a “very hard worker” and supported the family throughout the marriage, Husband lost his job due to layoffs shortly before the final hearing.  Husband had earned more than $42,000 per year and was actively seeking employment, but his only income at the time of the hearing was unemployment compensation at the rate of $1,204 per month.  Because Husband was not employed at his full earning potential, Wife sought to impute income to Husband to increase his support obligation under the child support guidelines. 

By order dated April 22, 2002, the family court granted the parties a divorce based upon one year’s continuous separation.  Although insufficient to support a finding of physical cruelty as the ground for divorce, the family court also found there was a history of emotional, verbal and physical abuse by Husband.  The family court found Husband’s underemployment was voluntary and imputed income to him in the amount of $10.00 per hour.  Husband was ordered to pay child support until Adam graduated from high school or reached age nineteen.  The family court apportioned the marital estate equally between the parties.  Although disputed by Husband, the family court found Wife’s credit card debt was incurred for the benefit of both parties and their children.  Therefore, the marital estate included the credit card debt.  The family court also ordered Husband to pay $10,000 of Wife’s attorney’s fees and costs.  Husband appeals.   

STANDARD OF REVIEW

On appeal from the family court, this court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). We are not, however, required to disregard the findings of the family court, which saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony. Haselden v. Haselden, 347 S.C. 48, 58, 552 S.E.2d 329, 334 (Ct. App. 2001); Wilson v. Walker, 340 S.C. 531, 537, 532 S.E.2d 19, 22 (Ct. App. 2000).


LAW/ANALYSIS

1.  Child Support

Husband argues the family court erred by ordering him to pay child support past Adam’s age of majority.  Specifically, Husband asserts the evidence was insufficient to allow post-majority support because Adam was not making any attempt to complete high school at the time of the final hearing.  We agree.

The family court has authority:

To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self‑supporting, as determined by the court, whichever occurs first or to provide for child support past the age of eighteen years if the child is in high school and is making satisfactory progress toward completion of high school, not to exceed the nineteenth birthday unless exceptional circumstances are found to exist or unless there is a preexisting agreement or order to provide for child support past the age of eighteen years; and in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.

S.C. Code Ann. § 20-7-420(17) (Supp.2004).  In addition, child support awards are addressed to the sound discretion of the family court and, absent an abuse of discretion, will not be disturbed on appeal.  Mitchell v. Mitchell, 283 S.C. 87, 92, 320 S.E.2d 706, 710 (1984). Abuse of discretion occurs when the court is controlled by an error of law, or where the order, based upon findings of fact, has no evidentiary support.  Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct. App. 1996).

In the instant case, the family court ordered Husband to pay child support for Adam “until he graduates from high school or reaches the age of nineteen, whichever occurs first.”  No evidence suggests Adam was “making satisfactory progress toward completion of high school” as required by section 20-7-420(17).  Adam spent little time in Wife’s home and Wife’s testimony was speculative at best.  Wife offered no direct evidence Adam was attending high school; she only expressed her “hope” Adam would complete high school and asserted she was “making arrangements” for him to attend adult education.  In addition to revealing Adam was not complying with the statute’s mandate, the record clearly reveals the parties provided Adam with his own resources to help offset school expenses.  Upon reaching age eighteen, Adam would become entitled to the corpus of his $30,000 trust fund.  Therefore, we find the family court erred in ordering Husband to continue paying child support past Adam’s age of majority. 

2.  Imputation of Income

Husband next argues the family court erred in its calculation of child support under the South Carolina child support guidelines.  Husband asserts the family court incorrectly imputed $10 per hour to him without sufficient evidence Husband’s failure to reach his full earning potential was voluntary.  We agree.

Under the child support guidelines, income is defined as “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) (Supp. 2004).  Regarding the imputation of income, the guidelines provide: 

If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent. . . .
(b) In order to impute income to a parent who is unemployed or underemployed, 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) (Supp. 2004).  Additionally, “[w]hen the court orders a child support award that varies significantly from the amount resulting from the application of the guidelines, the court shall make specific, written findings of those facts upon which it bases its conclusion supporting that award.”  27 S.C. Code Ann. Regs 114-4710(A)(1) (Supp. 2004).  “The failure to reach earning capacity by itself, does not automatically equate to voluntary underemployment such that income must be imputed.”  Kelley v. Kelley, 324 S.C. 481, 488-89, 477 S.E.2d 727, 731 (Ct. App. 1996).  Instead, when actual income versus earning capacity is at issue, the court should closely examine the payor’s good faith and reasonable explanation for the decreased income.  Id. at 489, 477 S.E.2d at 731. 

Here, no evidence indicates Husband’s loss of his prior job resulted from wrongdoing or was motivated by a desire to avoid his support obligation.  Husband worked at the same job in Michigan for over eighteen years and moved to South Carolina only at his Wife’s insistence.  Although Husband had difficulty finding comparable employment in South Carolina, he was the primary wage earner throughout the marriage.  Wife admitted Husband was a “very hard worker” and always provided for the family.  Moreover, Husband did not voluntarily leave his job but was dismissed due to company lay offs.  He was still receiving unemployment benefits at the time of trial and was actively seeking employment.  Thus, the family court erred in its determination Husband was voluntarily underemployed.  Husband had a good faith and reasonable explanation for his underemployment; therefore, the family court should not have imputed income to him and should have based his child support obligation on his actual income.

3.  Equitable Apportionment of Marital Debt

Husband next argues the family court erred in its apportionment of Wife’s credit card debt.  We disagree.

“Marital property” is defined as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation . . . .” S.C. Code Ann. § 20-7-473 (Supp.2004).  In making an equitable apportionment, the family court should consider “. . . any other existing debts incurred by the parties or either of them during the course of the marriage[.]” S.C. Code Ann. § 20-7-472(13) (Supp. 2004). “[S]ection 20-7-472 creates a [rebuttable] presumption that a debt either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment.”  Hardy v. Hardy, 311 S.C. 433, 436, 429 S.E.2d 811, 813 (Ct. App. 1993).  “Because Hardy establishes a presumption in favor of treating a debt as marital when it is incurred prior to marital litigation, the party claiming the debt is nonmarital bears the burden to overcome that presumption.”  Wooten v. Wooten, 358 S.C. 54, 60, 594 S.E.2d 854, 857 (Ct. App. 2003). 

The family court effectuated a fifty-fifty division of the marital estate and ordered Husband to pay $9,000 of credit card debt.  Although Wife accrued the credit card debt prior to initiating the marital litigation, Husband contends she ran up the debt in contemplation of divorce.  He argues the debt should be treated like an asset secreted or disposed of in contemplation of divorce and its value assessed against Wife’s share of the marital estate.  See Cooksey v. Cooksey, 280 S.C. 347, 352, 312 S.E.2d 581, 585 (Ct. App. 1984).  However, Husband offered no evidence to substantiate this claim, and therefore, did not overcome the presumption the debt was incurred for the benefit of the marriage.  We find no abuse of discretion in the equitable apportionment of the marital debt. 

4. Attorney’s Fees

Husband argues the court erred in awarding attorney’s fees to Wife.  We agree and remand for adjustment of award after child support changes.

One of the factors to be considered in awarding reasonable attorney’s fees and cost is the beneficial results obtained.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).  As we have found in favor of the Husband on several of his issues, we remand the issue of attorney’s fees to the family court for any adjustments it determines are necessary in light of our opinion.

CONCLUSION

We find the family court erred in ordering Husband to pay child support past Adam’s age of majority because he was not making satisfactory progress toward the completion of high school.  We affirm the equitable apportionment of marital debt.  We reverse the imputation of income to the Husband and the order for the Husband to pay child support past Adam’s age of majority.  We remand to the family court for the recalculation of child support.  In addition, we remand the issue of attorney’s fees to the family court for redetermination.  Accordingly, the order of the family court is

AFFIRMED in part, and REVERSED in part, and REMANDED. 

HUFF, KITTREDGE, and BEATTY, JJ., concur.    


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