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2007-UP-382 - Findley v. Findley

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

Debora Findley, Respondent,

v.

Randy J. Findley, Appellant.


Appeal From Beaufort County
 Judy C. Bridges, Family Court Judge


Unpublished Opinion No.  2007-UP-382
Submitted September 1, 2007 – Filed September 20, 2007


AFFIRMED


Sally G. Calhoun, of Beaufort, for Appellant.

Peter L. Fuge, of Beaufort, for Respondent.

PER CURIAM:  This is an appeal of certain provisions in a divorce decree.  Randy Findley (Husband) alleges error in the family court’s decisions on child support, equitable distribution, alimony, and attorney’s fees.  We affirm.[1]

FACTS

The parties married on May 5, 1995.  They have a daughter, who was born December 26, 1995.  Debora Findley (Wife) has full custody of another daughter from a previous marriage.

The parties initially lived in Wife’s house in Alabama.  They later purchased property on which they built a home and rented Wife’s house to Wife’s brother.  While they were still in Alabama, Husband filed for divorce; however, the parties later reconciled and moved to South Carolina.

Husband and Wife began living separate and apart on or about February 2, 2003.  On May 16, 2003, Wife commenced this action by filing a summons and complaint for separate maintenance and support, custody of the parties’ child, child support, alimony, equitable distribution, attorney’s fees, and other relief.  On June 12, 2003, Husband filed an answer and counterclaim in which he requested, among other relief, a divorce on the ground of habitual drunkenness, custody and child support, equitable distribution, and attorney’s fees.

Pursuant to motions for temporary relief filed by both parties, the family court held a hearing on July 21, 2003, and issued a temporary order on August 10, 2003, granting Wife custody of the parties’ child with visitation to Husband and directing Husband to pay alimony of $750.00 per month, child support of $830.00 per month, and $1,500.00 toward Wife’s attorney’s fees.  Husband unsuccessfully moved for reconsideration of the temporary order.  Following the denial of his motion for reconsideration of the temporary order, Husband retained his present counsel and unsuccessfully moved to reduce child support and eliminate his alimony obligation.[2]

The final hearing took place on August 4, 2004.  On November 16, 2004, the family court filed a final order in the matter (1) granting both parties a divorce on the ground of one year’s continuous separation, (2) granting Wife custody of the parties’ child with visitation to Husband, (3) continuing the terms of the temporary order in full force and effect until the sale of the former marital home, (4) directing Husband to pay child support of $788.00 per month and alimony of $300.00 per month beginning the first day of the month after the sale of the marital residence and continuing on a monthly basis thereafter, (5) directing Wife and provide health insurance on the parties’ child and instructing the parties as to how to divide the child’s uncovered medical expenses, (6) dividing the marital assets and providing certain instructions as to how a division was to be effected, and (7) directing Husband to pay $5,000.00 to Wife’s attorney.[3]

On or about November 17, 2004, Husband moved for reconsideration.  On December 1, 2004, Husband filed an amended motion for reconsideration in which he challenged (1) the grant of certain real property to Wife, (2) the inclusion of certain allegedly non-marital items in his share of the marital property, (3) the valuation of certain items awarded to Wife in the equitable distribution, (4) the award of certain items to him for which he had no use and the valuation of these items as determined by the family court, (5) certain provisions concerning custody, visitation, and child support, (6) the attorney’s fees award, and (7) the alimony award.  On December 8, 2004, the family court held a hearing on the motions.  On January 28, 2005, the family court signed an order amending the divorce decree with regard to certain portions of the equitable division, visitation, and child support and denying the remaining issues that Husband raised in his motions.  The order was filed on February 10, 2005, and Husband filed his notice of appeal on March 2, 2005.

STANDARD OF REVIEW

“In appeals from the family court, an appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence.”  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992) and Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct. App. 1996)).  “This broad scope of review does not, however, require the appellate court to disregard the findings of the family court.”  Id. (citing Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981)).  “Neither is the appellate court required to ignore the fact 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.”  Id. (citing Cherry Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981)).  Moreover, “when an appellate court chooses to find facts in accordance with its own view of the evidence, the court must state distinctly its findings of fact and the reason for its decision.”  Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002) (citing Rule 220(b)(1), SCACR).

LAW/ANALYSIS

1.  Husband first argues the family court, when computing child support, erred in finding medical and dental insurance premiums paid by Wife that were attributable to coverage of their child totaled $120.00.  We agree the family court’s initial calculations were in error for this reason; however, it appears from the order amending the decree the court made the appropriate adjustment.

On her child support worksheet, Wife indicated the portion of her monthly health insurance premium “covering children only” was $120.00.  At trial, however, Wife admitted on cross examination this amount covered not only the parties’ minor child, but also Wife’s daughter from her prior marriage as well as Wife herself.  Wife attempted to justify her right to claim the entire amount for the parties’ child by stating (1) although her older child was on her medical policy, that child had health insurance provided by her father; and (2) “different premiums” would be assessed depending on whether the insured was a single person, a person with a spouse, or a person with a family.

Under the South Carolina Child Support Guidelines, the family court “should consider provisions for adequate health insurance coverage for children in every child support order.”  S.C. Code Ann. Regs.114-4720(E) (1992).  The guidelines further provide “the portion of the health insurance which covers the children is the only expense that should be added.”  Id.

As Husband noted in his brief, the family court appeared to dismiss his argument that the amount Wife maintained she was paying actually covered, in addition to the parties’ child, Wife’s older daughter and Wife herself.  Nevertheless, in the order issued pursuant to his motion, the family court, after referencing the previous final child support award of $788.00 per month, ruled that “[u]sing revised child support calculations, . . . [Husband] shall commence child support payments in the amount of $733.00 per month” and further noted that, regarding child support, the divorce decree was “amended to conform with my findings of fact set forth hereinabove and [Husband] shall pay child support on a monthly basis . . . of $733.00 per month.”  This revised award reflects the amount Husband claims should be allotted to insurance coverage for the parties’ child.[4]  Although the family court appeared to reject Husband’s position during the hearing on his post-trial motion, it is evident from the written order that the court ultimately accepted his argument and was within its right to do so.  See Christy v. Christy, 354 S.C. 203, 206, 580 S.E.2d 44, 446 (2003) (“ ‘Until the paper has been delivered by the judge to the clerk of court, to be filed by him as an order in the case, it is subject to the control of the judge, and may be withdrawn at any time before such delivery.’ ”) (quoting Archer v. Long, 46 S.C. 292, 295, 24 S.E. 83, 84 (1896)).

2.  Husband next argues the family court abused its discretion in basing child support on Wife’s claim that childcare costs for the parties’ child came to $370.00 per month.  We disagree.

Wife noted on her financial declaration that her gross monthly childcare costs were $370.00 and used the same figure on her child support worksheet.  She gave consistent testimony on direct examination about this matter.  On cross examination, however, she acknowledged her childcare costs for the prior year, as reflected on her most recent federal income tax return, averaged to only $177.50 per month, suggesting a difference in excess of $1,500.00 per year between her childcare costs for the year during which the divorce hearing took place and those for the prior year.

In his brief, Husband’s sole argument is that “it defies common sense to believe the childcare net of tax credit had increased $1,500 only one year for after school and summer childcare.”  In our view, however, the alleged discrepancy only goes to the weight of the evidence and is insufficient reason for this Court to hold the family court made an incorrect finding regarding work-related childcare costs.  As Wife notes in her brief, the sole challenge at trial to her evidence regarding childcare costs was a brief question from Husband’s attorney regarding her 2003 tax return.  Neither party proffered any further testimony or evidence concerning work-related childcare costs.  We therefore hold the family court based its decision on the evidence presented and acted within its discretion in doing so.[5]  In so holding, we note Husband should have been able to procure pertinent evidence from the child’s caregivers if he considered Wife’s figures suspect and the record does not suggest that he even attempted to do this.

3.  Husband next argues the family court “abused its discretion in adopting the lowest suggested sales price in the comparative market analysis of the marital home” rather than the median value suggested by the analysis.  In support of this argument, Husband further notes the analysis was eight months old at the time of trial and therefore artificially low in a rising real estate market.  We reject these contentions.

Wife testified the market analysis she submitted into evidence was the highest of three market analyses conducted on the house.  Moreover, Husband had ample opportunity to seek his own appraisal and, although he filed a motion to have another appraisal, he never followed through with it.  Based on the evidence before us, we find the family court’s determination of the value of the marital residence was within its discretion.  See Noll v. Noll, 297 S.C. 190, 194, 375 S.E.2d 338, 340-41 (Ct. App. 1988) (“In the absence of contrary evidence, the court should accept the value the parties assign to a marital asset.”).

4.  Husband next complains the family court should not have required him to continue paying child support and alimony at the levels set by the temporary order for an additional thirty days given to Wife to refinance the marital home and buy out Husband’s equity.  In support of this argument, Husband argues Wife had ample time before the hearing to arrange refinancing and admitted she had initially received approval without relying on spousal support.  In his reply brief, Husband further argues the alleged error was compounded by the fact that Wife’s attorney delayed submission of the final order for three months, thus enabling her to receive four months of child and spousal support at the higher levels.[6]  We find no reversible error.  Husband should have raised these concerns in his post-trial motion to enable the family court to address them; however, this he failed to do.  Because, therefore, the family court did not have the opportunity to rule on this issue, we hold it was not preserved for our review.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding the court of appeals improperly addressed an issue that the “circuit court did not explicitly rule on” when the appellant did not raise the issue in a motion to alter or amend).

5.  Husband next submits the alimony awarded to Wife should be reversed in view of (1) Wife’s misconduct during the marriage, (2) Wife’s level of education, (3) the equitable distribution Wife received in the divorce, (4) Wife’s contributions to the marriage, (5) the length of the marriage, and (6) the allegation that, when Wife’s child support was considered, Wifehad more income than did Husband.[7]  We find no abuse of discretion.  See Craig v. Craig, 365 S.C. 285, 292, 617 S.E.2d 359, 362 (2005) (“An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion.”).

Although Wife had completed more schooling than did Husband and was working as an insurance agent at the time of the divorce hearing, it was undisputed that she consistently earned less than he did throughout the marriage.  Moreover, we agree with the family court that any support Wife was receiving for her older child should not be considered as income belonging to her for purposes of determining her eligibility for alimony because, as the family court noted, “[s]he has the obligation to contribute, as well as the father.”  Similar logic can be applied to the child support awarded for the child of the marriage.  As to Wife’s alleged misconduct, we find it significant that the family court expressly found “the fault allegations set forth in the parties’ pleadings was not supported by sufficient evidence” and chose instead to grant the divorce to both parties on the ground of a one-year separation.  Although there may reason to differ with the weight the family court gave to each of the statutory factors for alimony, the concerns Husband has raised in this appeal do not warrant the reduction or setting aside of the alimony award.  See Doe v. Doe, 324 S.C. 492, 504-05, 478 S.E.2d 854, 860 (Ct. App. 1996) (noting “[n]o one factor is considered dispositive” in determining an award of spousal support).

6.  Husband next argues the attorney’s fees award to Wife should be reduced or eliminated altogether, citing among other reasons (1) fees assessed him after the temporary hearing, (2) Wife’s ability to pay her own attorney as compared with his own financial circumstances, (3) the fact that Husband did not pursue his counterclaim for custody, (4) deficiencies in the representation provided by Wife’s attorney, and (5) dilatory tactics allegedly used by Wife’s attorney to prolong the period that Husband had to pay higher levels of child and spousal support.  We find no abuse of discretion based on any of these grounds to justify reversing or modifying the attorney’s fees awarded to Wife.  In our view, the family court adequately considered the requisite factors under Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991), in determining the amount to award Wife as attorney’s fees.  In particular, we note the difficulty of the case was exacerbated by numerous motions filed by Husband while the lawsuit was pending, thus increasing the time Wife’s attorney had to devote to the matter.  Moreover, Wife was the prevailing party on most, if not all, matters at trial.  

7.  We reject Husband’s contention that the family court should have awarded him a special equity in Wife’s pre-marital home.  Contrary to Husband’s argument that he presented “uncontroverted testimony” that marital funds were used to pay the mortgage on the home as well as for a new roof, a front porch, a carport, new carpeting, and a heating system, Wife testified that she made the mortgage payments, no new carpet was installed, no new porch was built, and the new heating was not a “heating system” but simply propane models that hung on the wall.  As to the roof, Wife testified her brother, who worked as a roofer, installed a partial new roof after a hail storm.  Because there was conflicting testimony regarding Husband’s entitlement to a special equity in Wife’s pre-marital residence, we defer to the family court’s decision on this matter.  See Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 245 (Ct. App. 1999) (noting that, although the court of appeals has jurisdiction in family law cases to find facts according to its own view of the evidence, it is not required to disregard the family court’s findings or “to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony”).

8.  We reject Husband’s argument that the family court abused its discretion in allegedly “adopting wholesale” personal property valuations that Wife or her attorney allegedly “hurriedly jotted on [Husband’s] marital assets addendum during a break at trial.” No proof of value was offered by either party other than their opinions regarding the worth of the various items.  Moreover, in support of his position, Husband alleges on appeal that Wife’s valuations were “low-balled” without directing our attention to any evidence showing how they were incorrect.  Without any specific assignments of error, we see no reason to disturb the family court’s assessments of worth for the various items at issue. 

9.  Finally, Husband alleges the family court erred in awarding him various personal effects for which he allegedly had no use.  He further maintains the error is compounded by Wife’s claim that she did not to know where the items were located, the fact that he was presently living out-of-state in a rented room, and his allegation that the family court gave the items artificially high values.  We find no merit to these assertions.

According to Husband’s brief, the items at issue consisted of a rug, a plant, a non-working computer, discs, a VHS player, an antique curio cabinet, a floral picture, a telephone, carving knives, pots, pans, and corning ware.  The only item of any significant worth or bulk was the curio cabinet, which the family court assessed at $500.00.  The family court specifically found this item was a non-marital asset and Husband does not appeal this finding; therefore, we affirm the decision to award it in-kind to Husband.  See S.C. Code Ann. § 20-7-473 (Supp. 2006) (“The [family] court does not have jurisdiction or authority to apportion nonmarital property.”).

Several of the items that Husband claims he received in the equitable division but did not want were assigned no value at all; these consisted of the rug, the computer and disks, the telephone and the pots and pans.  Because these items were assessed a zero value, Husband’s claim that they resulted in Wife’s receiving a “monetary offset” for them lacks merit.  

The total value assigned by the family court to the remaining items in question was $87.50.  Ironically, however, in his post-trial motion, Husband requested not only that these items be awarded in-kind to Wife, he alleged they had been “grossly undervalued” when they were included in the inventory of property that the family court awarded to him.  Under these circumstances, we are at a loss to see how Husband can now complain the family court assigned inflated values to these items.

AFFIRMED.

HEARN, C.J., ANDERSON and THOMAS, JJ., concur.


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

[2]  The record contains a rule to show cause against Husband issued April 19, 2004, after the denial of Husband’s motion to reduce child support and eliminate alimony.  In Wife’s verified petition, she alleges Husband had failed to pay these obligations in a timely manner and was in arrears.  Although the rule to show cause noted a hearing was scheduled for June 15, 2004, the record does not indicate the outcome of the hearing.

[3]  The final order reproduced in the record appears to stop in mid-sentence and the summary given above is based on the portion that was made available.  The clerk’s file has a complete copy of the order; all that is missing is the final page, which has only about one-half page of text and information that does not affect this appeal.

[4]  In addition to the dispute regarding the cost of medical insurance on the parties’ child, Husband alleged in his post-trial motion that Wife underreported her income and presented a grossly inflated figure for the cost of her work-related childcare.  From our reading of the written order issued by the family court after it heard the motion, it appears the family court accepted the figures that Husband suggested correctly reflected Wife’s monthly gross income and health insurance premiums for the parties’ child and rejected the figure he proposed for work-related childcare.  We calculated child support using the worksheet that Husband included as an exhibit with his motion, which appears on page 93 of the record on appeal.  In our calculations, we used the revised figure for Wife’s gross monthly income and the figure Husband claimed reflected the correct cost of health insurance premiums for the parties’ child; however, we used the figure for work-related childcare that the family court had applied when initially setting child support instead of the figure Husband suggested on the worksheet.  Using the revised figures suggested by Husband for both Wife’s income and health insurance premiums for the child, we computed child support under the guidelines to be $732.09 per month, which deviates from the family court’s calculation by less than $1.00 per month.

[5]  On her financial declaration, Wife notes the $370.00 per month she was claiming for childcare “includes dance & swim lessons.”  The costs of these lessons could possibly account for the large discrepancy about which Husband was complaining; however, we have found nothing in the record indicating either party advanced this theory at trial.

[6]  As noted in the facts, the temporary order set alimony and child support at $750.00 per month and $830.00 per month, respectively.  In the final order, the family court set alimony at $300.00 per month and child support at $788.00 per month, but later reduced child support to $733.00 per month.

[7]  During trial, Husband alleged that Wife was unfaithful and extravagant.  He further maintained she abused alcohol and did not contribute financially to the marriage in a level befitting her education and other circumstances.