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2008-UP-165 - Brown v. Brown

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


Robert Brown, Respondent,

v.

Mae Ola Brown, Appellant.


Appeal From Orangeburg County
 Dale Moore Gable, Family Court Judge


Unpublished Opinion No. 2008-UP-165
Submitted March 3, 2008 – Filed March 12, 2008


AFFIRMED


Lawrence Keitt, of Orangeburg, for Appellant.

W. D. Rhoad, of Bamberg, for Respondent.

PER CURIAM:  In this domestic action, Mae Ola Brown (Wife) appeals the family court’s order requiring Robert Brown (Husband) to pay alimony retroactive to April 1, 2006.  Wife argues Husband owes her alimony dating back to a temporary divorce hearing on January 15, 2004.  Additionally, Wife argues the family court failed to set forth specific findings of fact and conclusions of law in deciding not to award retroactive alimony as required under Rule 26(a) of the South Carolina Rules of Family Court.  We affirm.[1] 

FACTS

Husband and Wife were married on November 7, 1970.  After thirty two years of marriage, the couple separated in September of 2003.  Husband and Wife had two children born out of the marriage who are now emancipated.  During the marriage, Husband worked as a plumber and as of the date of the divorce hearing, Husband had been working for himself for ten years.  Since 1979, Wife has worked for Farmers and Merchants Bank in Holly Hill.  Wife and Husband testified Husband paid their bills during the marriage, including the house payment until he left their marital home.  Since Husband left the marriage, Wife testified she has supported herself and borrowed money from family members. 

On September 3, 2003, Husband filed for divorce on the basis of adultery and sought an equitable division of marital property.  Wife answered and counterclaimed seeking permanent and temporary alimony.  Further, she denied Husband’s adultery allegations.  Wife alleged adulterous conduct by Husband and also sought an equitable division of the marital estate and alimony.  In a temporary order dated January 26, 2004, the family court did not rule on whether to award temporary alimony but held this ruling in abeyance pending a final hearing.  

In its final decree of divorce on April 17, 2006, the family court found Wife proved by clear and convincing evidence that Husband committed adultery and granted her a divorce on this ground.  The family court found Husband failed to prove his allegations of Wife’s adultery and denied granting him a divorce on the basis of Wife’s adultery or on the ground of one year continuous separation.  Additionally, the family court ordered Husband to pay $600 per month in alimony to Wife, retroactive to April 1, 2006.  The family court also granted Wife exclusive possession of the marital home and ordered Husband to pay $7,000 in attorney’s fees and costs.  This appeal follows.

STANDARD OF REVIEW

On appeal from a family court order, this court has authority to correct errors of law and find facts in accordance with our own view of the preponderance of the evidence.  E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992).  However, “[q]uestions concerning alimony rest with the sound discretion of the [family] court, whose conclusions will not be disturbed absent a showing of abuse of discretion.”  Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct. App. 1996).  The family court abuses its discretion when factual findings are without evidentiary support or a ruling is based upon an error of law.  Smith v. Doe, 366 S.C. 469, 474, 623 S.E.2d 370, 372 (2005).

DISCUSSION

I. Denial of retroactive alimony

Wife argues the family court abused its discretion in denying her retroactive alimony to the date of the temporary hearing on January 15, 2004.  We disagree.

“The decision to order retroactive support rests within the sound discretion of the family court and should not be reversed absent an abuse of discretion of the family court.”  Thornton v. Thornton, 328 S.C. 96, 115, 492 S.E.2d 86, 96 (1997).  “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)  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 established during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses and needs of the parties; (8) marital and nonmarital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; and (12) prior support obligations; as well as other factors the court considers relevant. S.C. Code Ann. § 20-3-130(C) (Supp. 2007).  Furthermore, when determining an alimony award, courts may consider the amount received in equitable distribution.  Josey v. Josey, 291 S.C. 26, 33, 351 S.E.2d 891, 895-96 (Ct. App. 1986). 

On January 15, 2004, Wife requested alimony during the temporary hearing.  The family court denied her request based on Husband’s allegations of adultery, and deferred ruling on whether to award retroactive alimony until the final hearing.  Wife contends two years and three months lapsed between the initial hearing and the final hearing, and during that time she borrowed money from her family to help support herself. 

In its temporary order, the family court awarded Wife temporary use and possession of the marital home and its contents.  Thereafter, in its final decree, the family court found “the parties enjoyed a reasonable standard of living” during their marriage.  In addition to equitably dividing the marital estate, the family court noted none of the marital property had any debt associated with it and granted Wife ownership of the marital home.  Furthermore, the family court found Wife had inherited an interest in three acres of land with her brothers from her mother’s estate which was nonmarital property valued at $19,000.  The family court also awarded Wife $7,000 in attorney’s fees and costs.

In its final ruling, the family court found Wife had a monthly income of $1,375.  Wife testified she and Husband filed separate tax returns for the past thirteen years, and in recent years Wife filed as a single, unmarried person.  In addition, Wife admitted she and Husband had lived “separate lives” for nearly ten years prior to their divorce.  Though Wife alleged she borrowed money from her family to make ends meet after Husband moved out, nothing in the record indicates the total amount loaned or the amount Wife needed to repay.  Moreover, in regards to Wife’s monthly expenses at the time the couple separated, Wife testified the couple’s marital home was paid off, but she still incurred monthly expenses from electric and insurance bills, laundry and dry cleaning, and life and health insurance.[2]  Specifically, Wife testified her monthly bills included $70 in home insurance and between $300 and $350 in utility bills.  However, we note Wife’s financial declarations, though discussed in testimony, were not included as part of the record on appeal.  Wife, as appellant, has the burden of presenting a sufficient record to allow review. See, e.g., Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339, 611 S.E.2d 485, 447-48 (2005); Harkins v. Greenville County, 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000). 

We find the family court properly considered the factors set forth in section 20-3-130(C) in deciding to award alimony and determining when payments would begin.  Therefore, based on the family court’s consideration of the couple’s standard of living established during the marriage; each parties’ current and reasonably anticipated earnings; marital and nonmarital properties of the parties; and the amount each party received in the equitable distribution of marital property, we find the family court did not abuse its discretion in denying Wife retroactive alimony.  Additionally, we note the family court based its alimony award “upon the length of the marriage, the relative income of the parties and those other factors necessary to be considered in awarding alimony . . . .”  Accordingly, we affirm the family court’s order requiring Husband pay $600 per month in alimony to Wife, retroactive only to April 1, 2006. 

II.  Rule 26(a) of the South Carolina Rules of Family Court

Wife argues the family court failed to set forth specific findings of facts and conclusions of law in deciding not to award retroactive alimony as required under Rule 26(a), SCRFC.  Instead, Wife argues the family court summarily stated it declined to award retroactive alimony.  We disagree. 

Rule 26(a), SCRFC, provides: “An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.”  However, we note not every violation of Rule 26(a) requires reversal.  See, e.g., Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991); Bowers v. Bowers, 349 S.C. 85, 98-99, 561 S.E.2d 610, 617 (Ct. App. 2002); Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526, 535 (Ct. App. 1998).  “[W]hen an order from the family court is issued in violation of Rule 26(a), SCRFC, the appellate court ‘may remand the matter to the trial court or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.’” Griffith, 332 S.C. at 646-47, 506 S.E.2d at 535 (quoting Holcombe v. Hardee, 304 S.C. at 524, 405 S.E.2d at 822).  In the case sub judice, we find the record on appeal sufficient for this court to make its own findings.

In asserting the family court erred by failing to make the specific findings of fact as required by Rule 26(a), Wife references the family court’s order rendered in response to her notice of motion and motion for reconsideration.   The order denying Wife’s motion to reconsider references “matters appearing of record in the file . . . .”  Therefore, we find it unnecessary for this order to set forth factual findings and conclusions of law in light of the original divorce decree’s specific findings of fact and conclusions of law to support its decision.  Furthermore, as aforementioned, we found the family court, in the final divorce decree, properly considered the factors set forth in section 20-3-130(C) in its final divorce decree decision of whether to award alimony and when payments would begin.  For that reason, the family court satisfied Rule 26(a), SCRFC, and the divorce decree was part of the record on appeal. Therefore, we find sufficient facts in the record support the family court’s order denying Wife retroactive alimony.  Accordingly, we affirm the family court’s order in response to Wife’s motion for reconsideration. 

CONCLUSION

We find the family court properly considered the alimony factors set forth by statute and case law in setting an alimony award and in determining when such payments should begin.  Therefore we find the family court did not abuse its discretion in denying Wife retroactive alimony to the date of the temporary hearing.  Additionally, we believe the family court satisfied Rule 26(a), SCRFC in its final decree of divorce, which was part of the record on appeal.  Accordingly, the order of the family court is

AFFIRMED.

ANDERSON, SHORT and THOMAS, JJ., concur.


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

[2] Wife testified she took out a loan from the bank to “help pay my bills,” but indicated the loan had only one year remaining before she paid it off.