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2007-UP-497 - Harris v. Harris
THIS OPINION HAS NO PRECEDENTIAL VALUE

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


Rodell Harris, Respondent,

v.

William L. Harris, Appellant.


Appeal From Aiken County
 Henry T. Woods, Family Court Judge


Unpublished Opinion No. 2007-UP-497
Submitted October 1, 2007 – Filed October 16, 2007


AFFIRMED IN PART; REVERSED IN PART; REMANDED


Jeffrey Raymond Moorehead, of Aiken, for Appellant

Gary Hudson Smith, III, of Aiken, for Respondent.

PER CURIAM: In this divorce action, William L. Harris (Husband) claims the family court erred in awarding alimony, equitably dividing the marital estate, and awarding attorney’s fees to his former wife, Rodell Harris (Wife).  We affirm in part, reverse in part, and remand.[1]

FACTS AND PROCEDURAL HISTORY

The parties were married on March 19, 1982, and separated approximately twenty-one years later on October 30, 2003.  At the time of the final hearing Husband was seventy-four and Wife was sixty-six.  Both parties are retired. No children were born into the marriage.

In November 2003, Wife commenced this action by filing a summons and complaint for pendente lite and permanent alimony, equitable division of the marital assets including the debts, and attorney’s fees. Husband responded requesting an equitable division of marital assets and debts.  Husband also requested attorney’s fees, but later withdrew his request during the final hearing. Following a December 2003 hearing the family court issued a temporary order granting Wife pendente lite alimony in the amount of $400 per month.

At the final hearing on July 12, 2006, the family court heard testimony on the parties’ financial standings and a tax debt from 2003.  Both parties also testified regarding their two houses, the nature of their relationship, and Husband’s often uncompromising and sometimes hostile temperament with regard to Wife, her family members, his former attorneys, and contractors.

On August 9, 2006, the family court issued a final order (1) granting the parties a divorce on the ground of one year’s continuous separation, (2) approving the parties’ stipulated division of personal property, (3) finding Husband had greater fault in the breakup of the marriage, (4) directing Husband to pay Wife $350 per month in alimony, (5) granting the parties’ house in Saluda to Wife and the parties’ house in North Augusta to Husband, (6) denying Husband’s request for sweat equity in both houses, (7) finding Wife has no responsibility for any of the tax penalties the Husband incurred due to an early withdrawal of his savings, and (8) ordering Husband to contribute $5,000 to Wife’s attorney’s fees.  Husband appeals.

STANDARD OF REVIEW

In appeals from the family court, this court has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).  However, this broad scope of review 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, which 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).  Our broad scope of review also does not relieve appellant of his burden to convince this court the family court committed error.  Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979).

LAW/ANALYSIS

I. Alimony

Husband claims the family court’s grant of permanent, periodic alimony and the amount awarded constitute an abuse of discretion.  More specifically, Husband argues that Wife can earn enough to support herself, the family court’s final award of alimony was based upon the award of pendente lite alimony at the temporary hearing, and the family court’s finding that he was more responsible for the breakup of the marriage erroneously contributed to the decision to award alimony. We find no merit in these arguments.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion.  Allen v. Allen, 347 S.C. 177, 183-84, 554 S.E.2d 421, 424 (Ct. App. 2001).  “Alimony is a substitute for the support which is normally incident to the marital relationship.”  Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988).  The amount of alimony is also within the sound discretion of the family court and should not be disturbed on appeal unless an abuse of discretion is shown. Smith v. Smith, 264 S.C. 624, 628, 216 S.E.2d 541, 543 (1975). An abuse of discretion occurs either when a court is controlled by an error of law or when the order, based upon findings of fact, lacks evidentiary support. Townsend v. Townsend, 356 S.C. 70, 73, 587 S.E.2d 118, 119 (Ct. App. 2003).  If a claim for alimony is well founded, it is the duty of the family court to make an alimony award that is fit, equitable, and just.  Allen, 347 S.C. at 184, 554 S.E.2d at 424.

 Factors to be considered in making an alimony award include: (1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5) standard of living during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses of the parties; (8) marital and non-marital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; (12) prior support obligations; and (13) other factors the court considers relevant. S.C. Code Ann. § 20-3-130(C) (Supp. 2006). 

A. Wife’s Income

The record reflects that the family court properly considered the statutory factors of Section 20-3-130(C) of the South Carolina Code (Supp. 2006), including the parties’ age, health, retirement status, duration of the marriage, fault in the breakup of the marriage, and substantial difference in monthly income before awarding alimony in the amount of $350 per month to Wife.  In its order the family court calculated Husband’s and Wife’s gross monthly income using the figures each party supplied on their 2006 financial statements.  The family court noted that Wife receives $608 per month from her pension, $1,413.50 per month from Social Security, and $72 per month from her investments, resulting in a total monthly income of $1,823.50.  Husband receives $1,423 per month from his pension and $1,160 per month from Social Security resulting in a total monthly income of $2,583, which is $760 more than Wife receives each month. 

Husband’s argument that Wife can earn enough to support herself fails to illustrate how the family court’s award of alimony was based upon an error of law or a lack of evidence.  We find no abuse of discretion in the family court’s award of alimony.

B. Previous Award of Alimony

Husband’s second argument that the family court’s final award of alimony was based upon the award of pendente lite alimony at the temporary hearing also fails.  The temporary hearing in which Wife was awarded pendente lite alimony in the amount of $400 per month occurred over two years prior to the final hearing.  In addition, different judges presided over the temporary hearing and the final divorce hearing.[2]  When a dispute arose during the final hearing regarding both parties’ failure to follow the exact directions of the temporary order, the family court remarked that its decisions would not be impacted by another judge’s long-ago ruling on this matter and it could not “go back and undo what was done or was not done.”  The family court directly addressed and dispelled the idea at the core of Husband’s argument that the alimony award was fashioned due to a prior award of pendente lite alimony.

C. Husband’s Greater Fault

Husband’s final argument that the family court improperly considered the parties’ fault in the breakup of the marriage also fails.  Section 20-3-130(C)(10) of the South Carolina Code (Supp. 2006) states that marital fault is a proper factor to be considered in the decision to award alimony. 

II. Equitable Distribution of Marital Estate

Husband claims the family court did not effect an equitable division of the marital estate.  More accurately, Husband argues the family court erred in not allocating to Wife part of the nearly $43,000 tax debt incurred by Husband.  Husband also argues the family court’s finding that Husband is not entitled to sweat equity in the parties’ two houses affected the equitable division of the marital estate.  We agree with Husband’s assertion that the marital estate was not equitably divided, but disagree with Husband’s contention that the family court erred in denying him sweat equity.

A. Tax Debt

Husband incurred tax debt in the summer of 2003 when he withdrew money from his IRA but did not file a tax return within the appropriate time.  Husband stated he withdrew the money from the IRA because he was not receiving much interest.  Wife first learned of Husband’s actions when he returned home and told her “I cussed [the financial advisor] out and took my money out.” Neither party knew Husband incurred tax liability due to his hasty actions until February 2004. Despite being separated, Wife agreed to file a joint tax return which decreased Husband’s tax penalty to $43,000.  The IRS issued a tax refund in response to the parties’ joint filing, but Wife did not receive any portion of the refund.  

We initially note that neither party nor the family court asserts the tax debt is non-marital property.  Instead, the family court simply apportioned the tax debt to Husband in the division of the marital estate. 

The apportionment of marital property will not be disturbed on appeal absent an abuse of discretion. Bungener v. Bungener, 291 S.C. 247, 251-52, 353 S.E.2d 147, 150 (Ct. App. 1987).  Section 20-7-472 of the South Carolina Code (Supp. 2006) lists fifteen factors for the court to consider in equitably apportioning a marital estate. On appeal, this court looks to the overall fairness of the apportionment. Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988).  If the end result is equitable, it is irrelevant that the appellate court would have arrived at a different apportionment. Id.

Here, the family court considered the parties’ (1) stipulation as to the division of marital property, (2) two houses, (3) savings and investment plans, and (4) monthly income, as well as (5) the length of the marriage, (6) Husband’s greater fault in the breakup of the marriage, (7) and the alimony award to Wife.  Our review of the record convinces us the family court addressed factors under the statute governing apportionment with sufficiency to indicate the family court was cognizant of those factors.  However, we find the overall distribution of sixty-three percent of the marital estate to Wife and thirty-seven percent of the marital estate to Husband is not equitable for a marriage that lasted twenty-one years. See Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (Ct. App. 1987) (preserving a fifty-fifty apportionment of the marital estate in an eighteen year marriage); Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct. App. 1998) (approving a fifty-fifty division of marital property in a marriage of twelve years).  Given the trend in case law for an equal apportionment of property in a long-term marriage, we modify the family court’s apportionment of the marital estate by awarding Husband forty-five percent of the marital estate and Wife fifty-five percent of the marital estate.

B. Sweat Equity

Husband fails to specifically appeal the fact that the family court erred in not granting him sweat equity but addresses it in a circumjacent manner claiming the absence of such an award affected the equitable division of the marital estate.  We find no merit in this argument. 

The family court heard extensive testimony regarding Husband’s work on the parties’ houses and even divulged its awareness of the skill and labor required to perform the alterations Husband made to the houses.  Nevertheless, the family court properly found that Husband did not present the proof needed for the family court to find the Husband’s actions merited any special equity in the houses.  See Arnal v. Arnal, 363 S.C. 268, 294-95, 609 S.E.2d 821, 835 (Ct. App. 2005) (finding a husband failed to prove his labor made material contributions warranting special equity since the husband presented no testimony concerning any appreciation in value).  The family court also noted that both parties contributed different forms of sweat equity throughout the twenty-one year marriage and it would be impossible for the family court to measure the value of all those contributions.   

III. Attorney’s Fees

Husband claims the family court abused its discretion in awarding attorney’s fees to Wife.  Specifically, Husband argues that once he withdrew his request for attorney’s fees, the family court should have either abandoned the notion of awarding attorney’s fees or abandoned the parties’ settlement proposals[3] and awarded attorney’s fees based on what occurred at the final hearing.  Husband also argues the family court used its award of alimony as a factor in determining Husband should contribute to Wife’s attorney’s fees. We disagree.

Whether to award attorney’s fees is a matter within the sound discretion of the family court, and the award will not be reversed on appeal absent an abuse of discretion.  Bakala v. Bakala, 352 S.C. 612, 633-34, 576 S.E.2d 156, 167 (2003).  In determining whether an award of attorney’s fees should be granted, the family court should consider the following: each party’s ability to pay their own fee, the beneficial results obtained by counsel, the financial conditions of the parties, 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, 816 (1992).  To determine the amount of attorney’s fees to award, the family court should consider the nature, extent, and difficulty of the services rendered; the time necessarily devoted to the case; counsel’s professional standing; the contingency of compensation; 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).

We find no abuse of discretion in the award of attorney’s fees.  The family court adequately considered the factors set forth in Glasscock when awarding attorney’s fees to Wife.  There is no indication alimony was a factor in the attorney’s fees.  Further, Wife obtained a beneficial result that was appropriately considered by the family court. 

CONCLUSION

We affirm the ruling of the family court in regard to the award of alimony, the refusal to award sweat equity, and the award of attorney’s fees.  We reverse and remand to the family court for re-allocation of the marital estate in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ANDERSON and THOMAS, JJ., and CURETON, A.J., concur.


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

[2] The Honorable Peter R. Nuessle conducted the temporary hearing and issued the temporary order. The Honorable Henry T. Woods conducted the final divorce proceeding and issued the final order which Husband now appeals. Husband does not appeal the temporary order.

[3] The record on appeal did not contain the parties’ pre-hearing settlement proposals.  From the Husband’s argument and the family court’s reference to its review of the settlement proposals, this court can infer that the settlement proposals of both parties may have discussed awarding attorney’s fees.