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2007-UP-538 - Rogers v. Rogers

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


Giselle Bailey Rogers, Respondent,

v.

Gregory Rogers, Appellant.


Appeal From Greenville County
 Aphrodite K. Konduros, Family Court Judge


Unpublished Opinion No. 2007-UP-538
Submitted November 1, 2007 – Filed November 29, 2007


AFFIRMED AS MODIFIED


Deborah  Murdock, of Greenville, for Appellant.

John Michael Turner, Sr., of Laurens, for Respondent.

PER CURIAM:  This is an appeal of a divorce decree.  Gregory Rogers (Husband) argues the family court erred in its findings concerning child support and alimony, apportionment of the marital assets and marital debt, grounds for the divorce, and attorney’s fees and costs.  We affirm as modified.[1]

FACTS AND PROCEDURAL HISTORY

Husband and Giselle Bailey Rogers (Wife) married on June 29, 1991.   They have one son, who was born in 1994, and one daughter, who was born in 2001.  Wife is an elementary schoolteacher.  Husband is a State Farm insurance agent with various income-producing side ventures, including the sale of vehicles and the rental of two tractor-trailer trucks. 

In 1998, Wife filed for divorce, alleging Husband had infected her with Chlamydia; however, the action was dismissed when the parties reconciled.  In 2004, the parties separated again, and Wife filed the present action requesting, among other relief, a divorce on the ground of adultery, temporary possession of the marital home, custody of the parties’ children, child support and alimony, equitable division of the marital property, and attorney’s fees.  In his answer and counterclaim, Husband denied the material allegations of the complaint and counterclaimed for custody of the children and possession of the marital home.

On September 20, 2004, the family court held a temporary hearing, during which the parties announced an agreement on the issues of custody, visitation, discovery, and child support, leaving only the issues of temporary possession of the marital home, attorney’s fees, and alimony for the court to decide.  Pursuant to the parties’ agreement, the family court granted Wife custody of the children with reasonable visitation to Husband, authorized full discovery, and ordered Husband to pay child support of $1,000.00 per month directly to Wife.  The family court also granted Wife temporary possession of the marital home, directed Husband to pay one half of the mortgage payment, and held alimony and attorney’s fees in abeyance with the proviso that these issues would be subject to retroactive application.

Husband apparently failed to pay child support as ordered by the court; therefore, on February 8, 2005, the family court issued an order requiring all future child support to be paid through the clerk of court.  On March 29, 2005, a second temporary hearing took place, resulting in an order modifying visitation, appointing a guardian ad litem, and making certain provisions concerning extracurricular activities of the parties’ son.  In addition, pursuant to a motion to compel filed by Wife, the family court ordered Husband to produce a statement of his retirement fund with State Farm and granted Wife $1,800.00 in attorney’s fees incurred from the motion.

A final hearing in the matter took place on March 15, 2006.  By order dated June 26, 2006, the family court granted Wife a divorce on the ground of adultery, approved the parties’ agreement regarding custody and visitation, required Husband to pay child support of $1,484.00 per month plus $550.00 per month towards the children’s school and daycare expenses, set alimony at $2,000.00 per month retroactive to September 27, 2004, and directed Husband to pay the alimony arrearage of $40,000.00 at $500.00 per month.  In addition, the family court ordered Husband to pay $19,650.00 to Wife’s attorney, representing the balance of her request for attorney’s fees of $22,950.00 less his prior payments of $3,300.00

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 alleges that, for purposes of calculating child support, the family court improperly imputed income to him that was not supported by the evidence.  In response, Wife argues the family court did not impute income to Husband but simply added non-reported and non-taxed income to the amount Husband contended was his current income per month.  We agree with Wife that the family court committed no abuse of discretion in including these amounts to determine Husband’s income potential, but modify the base amount to which these figures were added.

According to Husband’s most recent financial declaration, his current monthly income was $10,314.00.  At trial, Husband testified he arrived at this figure by averaging his taxable income as reflected on his tax returns from 2002 through 2004.  Inexplicably, however, the family court stated that Husband “now contends that his income is $10,368.97 per month . . . .”  We were unable to find any corroboration in the record on appeal to support this statement, and Wife’s counsel has not directed our attention to where in the record such evidence appears; therefore, we hold any additions to Husband’s monthly income should have supplemented a base figure of $10,314.00, not $10,368.97.

As to the additions themselves, however, we hold the family court acted within its discretion in including them as income to Husband.  As noted in the appealed order, these amounts included a car benefit of $6,600.00 per year and payment of up to $15,000.00 per year of gasoline bills, insurance premiums, water bills, and credit card expenses for personal use.  Husband admitted to receiving these benefits.  Whether or not he was required to report them as income for income tax purposes, they inured to his advantage and were properly considered as income for purposes of setting child support.  See S.C. Code Ann. Regs. 114-4720(A)(2) (Supp. 2006) (stating that, in determination of child support awards, “[u]nreported case income should also be included if it can be identified.”); id. 114-4720(A)(3)(C) (noting that, although in-kind income is not included in gross income for determining child support, “the court should count as income expense reimbursements or in-kind payments received by a parent from . . . operation of a business if they are significant and reduce personal living expenses . . . .”); Mobley v. Mobley, 309 S.C. 134, 138-39, 420 S.E.2d 506, 509-10 (Ct. App. 1992) (holding the custodial parent was entitled to a redetermination of a child support award because the family court failed to include in the noncustodial parent’s income any amount for his employee benefits).

Husband further takes issue with the inclusion of rental income on one of his tractor-trailer trucks in his monthly income, alleging the payments he was receiving were simply used to make the loan payments on the vehicles and the payments did not come in on a regular basis.  We find no abuse of discretion.  The family court noted (1) the amount reflecting this income actually covered the rental of only one of two trucks; and (2) Husband had listed this amount on his initial financial declaration, but omitted it from his later financial statement.  In our view, the family court’s inclusion of rental income for only one tractor-trailer truck was a reasonable compromise offsetting the sporadic receipt of the payments and any expenses associated with the trucks.

Applying the revised figure for Husband’s monthly base income, Husband’s child support payments under the South Carolina Child Support Guidelines should be $1,408.00 per month, rather than $1,484.00 per month as ordered by the family court.  We therefore modify the appealed order to reflect this finding.

2.  Husband next argues the family court erred in requiring him to pay $550.00 per month for the younger child’s expenses at a Montessori school.  In support of this argument, he asserts (1) this payment was not included in the parties’ agreement; (2) the amount was placed into the child support calculation twice and treated as a twelve-month expense when it was actually a nine-month expense; (3) it was inequitable to require him to pay these expenses because Wife is entitled to claim these same expenses as daycare; and (4) he should have been given credit for paying expenses associated with the older child’s participation in athletics.  We find no reversible error.

Although the payment of the younger child’s Montessori school expenses was not part of the parties’ agreement, Wife testified she desired Husband to assist with these expenses, of which she herself was ordered to pay a proportionate share, plus the fee for two to three weeks of summer camp for the younger child.  Furthermore, as shown on line 10 of the child support worksheet used by the family court, Husband was given a credit of $550.00 as an adjustment to his child support obligation.  As to Husband’s final argument, he has neither directed our attention to evidence in the record upon which the family court should have based an appropriate adjustment to his child support payments based on his contributions toward expenses incurred by the older child nor cited any supporting authority for his assertion that he was entitled to such a credit.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (stating the appellant was deemed to have abandoned an issue for which he failed to provide any argument or supporting authority).

3.  Husband next argues he should not have to pay alimony and child support through the clerk of court, arguing he incurs additional costs of $3,984.00 per year in court fees.  He suggests he should be allowed to set up an automatic draft from his bank account to pay alimony and child support directly to Wife’s bank account.  We find no abuse of discretion in the family court’s refusal to let him make his own arrangements for these payments.  At the initial temporary hearing, the family court allowed him to pay child support directly to Wife; however, he failed to make payments as ordered, which necessitated an additional hearing to require him to make his payments through the court.

4.  Husband complains the family court overvalued his State Farm account because he did not invest the funds in an individual retirement account and because he would not receive whatever benefits he was entitled to until he reached age 55 or 60, provided he had worked 20 years.  On appeal, he contends that, instead of the figure of $78,069.00 that appears on Wife’s asset list as the value of this account, the account should have been assigned a present value of $15,000.00.  Wife has not provided any counterargument on this point in her brief; therefore, we modify the appealed order to find that the value of the State Farm residual account awarded to Husband is $15,000.00.

5.  Husband further alleges Wife’s half-interest in a house that she purchased with her father during the marriage should have been included in the marital estate.  We disagree.  The fact that the property was acquired during the marriage raises only a presumption that it is marital.  See Fuller v. Fuller, 370 S.C. 538, 551, 636 S.E.2d 636, 643 (Ct. App. 2006) (“Because of the general presumption that property acquired during the marriage is an asset of the marriage, the burden to show an asset is nonmarital is upon the party claiming the nonmarital status.”).  Here, the family court apparently determined Wife carried her burden to show the interest was not marital, and the evidence supports this finding.  Wife testified her father resided in the house, intended to stay there indefinitely, and was responsible for the expenses associated with it.  She also indicated her name was on the title only because she co-signed the loan to purchase the home.

6.  Notwithstanding our adjustment of the value of Husband’s State Farm residual account, we affirm the family court’s division of the remaining marital assets and debt. 

At the outset, we note the family court did not, as required by statute, “make findings of fact from credible evidence of the value of property and services” before allocating the marital assets and debt.  S.C. Code Ann. § 20-7-474(1) (Supp. 2006).  Instead, the court apparently did not attempt to value the marital assets either individually or collectively, but instead divided the marital property in-kind based on how a particular item was titled or testimony from the parties regarding who should receive it.  Accordingly, Wife received the marital home and furnishings, her 2004 Chevrolet Tahoe, various American Express accounts, and her State retirement and 401k accounts.  Similarly, Husband received his interest in certain commercial properties, the residual value of his State Farm account, and all other vehicles.  As to debts incurred during the marriage, the family court required Husband to be responsible for a federal tax lien of $62,854.20 that attached to the marital home as a result of his failure to file tax returns and pay taxes for 2002, 2003, and 2004.

According to the inventory of marital property submitted by Wife, as amended by the revised value of the State Farm residual account, she received assets totaling $180,391.03 and Husband received assets totaling $151,876.00; therefore, the total value of the divided assets according to Wife was $332,267.03.  In contrast, Husband submitted an inventory valuing the marital assets Wife received at $200,391.44[2] and those he received at $135,876.00[3]; thus, the combined value of the assets using Husband’s valuation was $336,267.44.  Under the evidence presented to the family court, Wife’s share of the marital estate, then, ranges from 54.29 percent to 59.59 percent.  Similarly, Husband’s share ranges from 40.41 percent to 45.71 percent.  We hold the division is reasonable under the circumstances of this case, which include the family court’s recognition that the marital estate was “somewhat difficult to value due to the husband’s evasive answers and obvious attempts not to disclose assets and income.”

7.  Husband further contends that, because the tax lien was incurred before the commencement of the marital litigation, the family court should not have made him solely responsible for discharging it.  Although Husband cites case law supporting his argument that the lien was a marital debt and argues at length about the hardship he would suffer from having to pay it, he does not contest the family court’s findings that the obligation resulted from his refusal and failure to timely file tax returns and pay taxes and that Wife had been filing her tax returns and paying her taxes after she became aware Husband was avoiding his tax obligations.[4]  Under these circumstances, we find no abuse of discretion in the family court’s decision to assign Husband responsibility for the lien.  See S.C. Code Ann. § 20-7-472(2) (Supp. 2006) (requiring the family court, in apportioning the marital estate, to give appropriate weight to “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties”); Woodside v. Woodside, 290 S.C. 366, 374, 350 S.E.2d 407, 412 (Ct. App. 1986) (“[T]he conduct factor becomes important in equitable distribution when the conduct of one party to the marriage is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship.”).  

8.  Husband next argues the alimony award was excessive in that it placed Wife in better circumstances than she enjoyed during the marriage.  In support of this argument, he asserts Wife is young, well educated, gainfully employed, and in good health.  He also points to the fact that, after the divorce, she retained considerable nonmarital property and had generous retirement accounts and benefits as a state employee.  We find no error.

In the appealed order, the family court gave full consideration to the statutory factors on which to base an alimony award.  See S.C. Code Ann. § 20-3-130(c) (Supp. 2006).  Significantly, the court noted (1) the parties had been married fifteen years; (2) Husband earned far more than Wife; (3) Husband’s misconduct caused the breakup of the marriage; (4) during the marriage Wife enjoyed a fine lifestyle that included a home in an upscale neighborhood and trips to exotic locations; (5) Husband would receive a tax benefit because he could deduct the alimony payments; and (6) neither party had any support obligations from a prior marriage.  Considering these findings, as well as the considerable difficulties in ascertaining Husband’s income, we disagree with Husband that the family court abused its discretion in determining the alimony award.  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.”).

9.  Husband further contends the award of retroactive alimony was excessive, especially given that he paid one half of the mortgage payments on the marital home while the action was pending.  We disagree.  Wife had requested alimony at the temporary hearing, and Husband had notice from the first temporary order that the issue of alimony would be decided at the final hearing but was subject to retroactive application.  In determining retroactive alimony, the family court evidently relied on the same factors that it considered in determining periodic alimony.  As to Husband’s argument that he should receive a credit toward the retroactive alimony award for the payments he made on the mortgage on the marital home, we agree with Wife that these payments, which Wife was required to make as well, were ordered with the objective of preserving a marital asset rather than to provide support and maintenance.

10.  Husband next argues the family court erred in granting Wife a divorce based on adultery, asserting Wife’s testimony alone was insufficient evidence to support a finding that he had been unfaithful.  He further contends that any reliance on Wife’s testimony that he had infected her with Chlamydia was improper because the parties reconciled after that occurrence. 

We have some concern as to whether the evidence Wife offered to support her claim for a divorce on the ground of adultery was sufficient.  See McElveen v. McElveen, 332 S.C. 583, 596-97, 506 S.E.2d 1, 7-8 (1998) (affirming the family court’s refusal to find a party had committed adultery, notwithstanding numerous telephone calls between the party and her alleged paramour during late hours, records of weekend trips taken by the party and her alleged paramour, and evidence of attempts to alter or eradicate these records).  In any event, we note the family court, with Wife’s consent, granted Husband’s request to amend his pleadings to request a divorce on the ground of a one-year separation.  Because there was evidence that the parties had been separated at least one year before the final hearing, we affirm the grant of a divorce, but modify the decision to hold this relief is based on a one-year separation.

11.  Finally, Husband contends the award of attorney’s fees to Wife was excessive, especially considering that she had allegedly been uncooperative regarding his contact with the children and her behavior necessitated a second temporary hearing and the appointment of a guardian ad litem.  We disagree.  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 Husband’s refusal to reveal his income and assets prolonged the resolution of the issues on the case, causing Wife to incur legal expenses that would not have been necessary but for Husband’s failure to cooperate.  As to Wife’s alleged interference with visitation, we hold the evidence shows she did not intend to prevent Husband from having a meaningful relationship with his children, but was concerned that their son’s participation in school and church was declining because of his athletic pursuits.  Finally, we note that Wife was the prevailing party on most of the issues in this action.  We therefore uphold the award of attorney’s fees to Wife.

AFFIRMED AS MODIFIED.

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


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

[2]  In valuing the marital residence, Husband subtracted the amount of a tax lien that the family court ordered him to pay; however, the figure we have given here does not reflect this debt.

[3]  In his inventory, Husband indicated the State Farm residual account had a zero value and the total value of Husband’s assets, as submitted by Husband, has been amended in this opinion to reflect that the State Farm account has a value of $15,000.00.

[4]  It appears from the returns included in the record on appeal that Husband had returns professionally prepared for the years in question; however, the date of tax preparer’s signature on the returns for 2002 and 2003 is March 6, 2006, just shortly before the final hearing.  There is no signature at all on the return for 2004.