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2008-UP-197 - Rolfe v. Rolfe

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

William Eric Rolfe, Respondent,

v.

Abigail J. Rolfe, Appellant.


Appeal From Darlington County
 James A. Spruill, III, Family Court Judge


Unpublished Opinion No. 2008-UP-197
Submitted February 1, 2008 – Filed March 20, 2008   


REVERSED IN PART AND REMANDED IN PART


Marian D. Nettles, Philip Bryan Atkinson, of Florence, for Appellant.

Robbie Forrester Gardner, III, of Hartsville, for Respondent.

PER CURIAM:  In this domestic action, Abigail Rolfe (Wife) appeals the family court’s order reducing alimony payments of William Eric Rolfe (Husband) and the failure to award attorney’s fees and costs.  We reverse in part and remand in part.

FACTS

Husband and Wife were married for twenty-six years.  During the marriage, Husband worked as a mechanic with Sonoco Products Corporation (Sonoco), and on the side, he also had a heating and air conditioning business.  The family court found Husband was the primary source of income for the family, but Wife contributed indirectly to the marriage through “her services as a house wife, mother, and bookkeeper for [Husband’s] heating and air conditioning business.”  After a no-fault divorce proceeding in 1995, the family court ordered Husband to pay Wife $1,200 per month in permanent, periodic alimony based on Husband’s income potential of $6,000 per month. 

After the divorce was finalized, Husband quit his job with Sonoco and became self-employed in the heating and air conditioning repair business.  Additionally, Husband remarried on June 29, 1998.  In November 1999, Husband’s second wife was diagnosed with breast cancer, and she underwent treatment for approximately three years.  In May 2005, Husband’s second wife suffered a relapse.  Husband petitioned the family court for a reduction in the payment of permanent, periodic alimony based on a substantial change in circumstances.[1]  The family court reduced Husband’s alimony payments from $1,200 to $900 per month based on his decreased income, Wife’s unemployment, and the medical condition of Husband’s second wife.  Wife appeals.

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).  An abuse of discretion occurs when the family court’s factual findings are without evidentiary support or are based upon an error of law.  Id.

LAW/ANALYSIS

I.  Modification of Alimony

Wife contends the family court abused its discretion in reducing Husband’s alimony payment based on (1) Husband’s underemployment; (2) Wife’s unemployment; and (3) the medical situation of Husband’s second wife.

1. Underemployment of Husband

Wife first argues the family court erred in failing to impute income to Husband due to his voluntary underemployment.  We agree. 

The party seeking the change in alimony has the burden to prove an unforeseen change in circumstances warranting a modification.  Id. at 486, 477 S.E.2d at 729.  “Several considerations relevant to the initial determination of alimony may be applied in the modification context as well, including the parties’ standard of living during the marriage, each party’s earning capacity, and the supporting spouse’s ability to continue to support the other spouse.”  Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct. App. 2004).

The South Carolina Supreme Court has emphasized it “will closely scrutinize the facts of any case wherein a husband . . . voluntarily changes employment so as to lessen his earning capacity . . . .” Camp v. Camp, 269 S.C. 173, 174, 236 S.E.2d 814, 815 (1977); see also Kelley, 324 S.C. at 488, 477 S.E.2d at 731 (“[V]oluntary changes in employment which impact a payor spouse’s ability to pay alimony are to be closely scrutinized.”).  In Camp the South Carolina Supreme Court, stated “Where the husband has voluntarily relinquished a well-paying practice and has taken a position at a modest salary, the court may base the amount of alimony upon his capacity to earn money, or upon his prospective earnings.”  Camp, 269 S.C. at 175, 236 S.E.2d at 815 (internal quotations and citations omitted). 

Recently, the South Carolina Supreme Court held the motive behind voluntary underemployment may be a factor when courts consider earning capacity.  Arnal v. Arnal, 371 S.C. 10, 13, 636 S.E.2d 864, 866 (2006) (“The motive behind any purported reduction in income or earning capacity should be considered, but prior South Carolina appellate decisions do not preclude a finding of voluntary underemployment in instances where a spouse reduces his earning capacity without doing so in bad faith.”).  However, in Arnal, our Supreme Court limited its holding by stating, “[A] parent seeking to impute income to the other parent need not establish a bad faith motivation to lower a support obligation in order to prove voluntary underemployment.”  Arnal, 371 S.C. at 13, 636 S.E.2d at 866.  Although the facts in Arnal involved reduction of child support payments, because voluntary underemployment occurs in the alimony arena as well, we find the situation analogous to alimony.  See S.C. Code Ann. §§ 20-3-130 (C)(4) and (C)(6) (Supp. 2007) (requiring the family court to consider “the employment history and earning potential of each spouse” and “the current and reasonable anticipated earnings of both spouses” when awarding alimony) (emphasis added);  Messer v. Messer, 359 S.C. 614, 629, 598 S.E.2d 310, 318 (Ct. App. 2004) (holding “a spouse obligated to pay alimony may not voluntarily or intentionally change his employment or economic circumstances so as to curtail his income and thereby avoid paying alimony or child support”); see also Luthi v. Luthi, 289 S.C. 489, 494, 347 S.E.2d 102, 105 (Ct. App. 1986) (“A party may not escape liability for alimony by intentionally refusing or failing to work.”).

Here, Husband’s substantial change in circumstances occurred because of his decision to terminate his employment with Sonoco at the age of fifty-one.  As a result of his early retirement, Husband received $763.90 per month from Sonoco instead of $1,292.33 per month, which he would have received had he retired at age sixty.  Additionally, when Husband quit his job with Sonoco and became self-employed, the family court found he had the ability to earn $6,000 per month.  Since Husband’s divorce decree, he has advertised little, if at all, and the hours he works per week vary between ten to forty hours.  When asked if he could work the same hours he used to work, Husband responded, “I probably could, but I just don’t feel like it, to tell the truth.”  Husband cannot escape his current alimony obligation based on a desire not to work or an intentional refusal to work less than full-time.  See  Id., 289 S.C. at 494, 347 S.E.2d at 105. 

In addition to his underemployment, Husband openly admitted to under-reporting his income on his tax returns and work log.  Specifically, Husband admitted, “If somebody pays you in cash, you just kind of don’t write it down sometimes.”  Additionally, Husband stated his tax returns would not reflect those cash payments, and his tax returns are inconsistent with his financial declarations.  In his financial declarations, Husband estimated $2,763.90 as his total net monthly income and $1,400 as his total monthly expense; therefore, he is financially able to pay his previous alimony obligation, especially in light of his under-reporting.  Moreover, Husband admitted the home where he and his second wife currently reside is in his mother’s name.  He testified he purchased the home with money he saved from working at Sonoco, and the reason the home is titled to husband’s mother is so he would not lose it if he went through another divorce.  By Husband’s estimate, the home is worth $80,000, and he does not make house payments on it. 

The family court reduced Husband’s alimony because his early retirement was a goal of both parties throughout their marriage.  However, we find Husband is voluntarily underemployed due to his decision to voluntarily terminate his employment with Sonoco and his decision not to work at full capacity in the heating and air conditioning business.  See Messer, 359 S.C. at 629, 598 at 318 (holding “a spouse obligated to pay alimony may not voluntarily or intentionally change his employment or economic circumstances so as to curtail his income and thereby avoid paying alimony or child support”); Kelley, 324 S.C. at 486, 477 S.E.2d at 729-30 (“The following circumstances, without more, have been found insufficient to warrant modification of alimony: unwarranted debts, inflation, increased or decreased income of the payor spouse, a payee spouse’s anticipated employment, and the straitened financial situation[s] which are a normal consequence of divorce.”) (internal quotations and citations omitted).

2.  Wife’s Unemployment

Wife next contends the family erred by taking her unemployment into account in its decision to reduce alimony.  We agree. 

Alimony is a substitute for support which is normally incidental to the martial relationship.  Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988).  Generally, the purpose of alimony is to place the supported spouse, to the extent possible, in the position she enjoyed during the marriage.  Id.  In Brown v. Brown, the South Carolina Supreme Court refused to reduce alimony payments when a former wife accepted a full-time employment position after the divorce.  278 S.C. 43, 44, 292 S.E.2d 297, 297 (1982).  The Brown court noted the former wife’s employment was anticipated and, therefore, did not amount to a change in circumstances warranting modification in alimony.  Id.

In the present case, the family court found alimony was a “perfect disincentive” for Wife’s employment.  Specifically, the family court stated Wife made no serious attempt to gain employment but worked several days a week volunteering.  However, we find Wife is entitled to the level of support she enjoyed prior to her divorce from Husband.  During the parties’ twenty-six year marriage, Wife did not work outside the home for a number of years even though she has two degrees from Coker College.[2]  During their marriage, Wife and Husband enjoyed a comfortable lifestyle, and they were able to acquire assets without incurring substantial debt. 

We find Wife is entitled to live in the manner she enjoyed prior to her divorce from Husband, and permanent, periodic alimony is designed to ensure Wife can maintain that lifestyle.  See Johnson, 296 S.C. at 300, 372 S.E.2d at 113 (“Ordinarily, the purpose of alimony is to place the supported spouse, as nearly as is practical, in the position of support she enjoyed during the marriage.”).  Since her divorce, Wife has accrued debt and borrowed $50,000 on the marital home she received in the divorce.  Moreover, as stated in her financial declaration in 2005, Wife’s net monthly income, prior to the family court’s decrease in alimony, was $1,794.16 and her expenses totaled $2,530.07.  Consequently, even with the previous alimony payment of $1,200, Wife was in a strained financial situation.  Accordingly, we find the family court abused its discretion by considering Wife’s unemployment in its decision to reduce alimony. 

3.  Medical Condition and Lack of Insurance for Second Spouse

Wife next asserts the family court erred in concluding the medical condition of Husband’s second wife and her lack of medical insurance justify a reduction in alimony.  As explained above, Husband’s second wife was diagnosed with breast cancer, and she underwent treatment for approximately three years.  In May 2005, Husband’s second wife suffered a relapse.  Husband’s second wife testified her current outstanding medical bills amount to approximately $15,000, and that she is making small payments.  Second wife stated that she has been able to obtain write offs or receive “care adjustments” for her medical expenses.  The family court found Husband’s second wife’s cancer constituted a substantial change in condition, noting, “the cost of treatment will be very substantial and that the [Husband] will not be able to pay all of the costs associated with the treatment.” 

There has been no showing in the record by Husband that he has or will incur any debt as a result of his current wife’s medical condition.  Thus, the family court improperly considered the medical condition of Husband’s second wife in altering alimony.  See Spivey ex rel. Spivey v. Carolina Crawler, 367 S.C. 154, 160, 624 S.E.2d 435, 438 (Ct. App. 2005) (holding an appellate court examines justiciable controversies, which are real and substantial controversies, which are ripe and appropriate for judicial determination instead of merely contingent, hypothetical, or abstract disputes and issues that are not ripe are not appropriately before this Court).  We decline to express an opinion on whether it was proper for the family court to assign weight to second wife’s medical condition in altering Husband’s alimony payments when Husband has neither paid nor obligated himself to pay any of second wife’s medical expenses.  See Sloan v. Greenville County, 356 S.C. 531, 552, 590 S.E.2d 338, 349 (Ct. App. 2003) (“The function of appellate courts is not to give opinions on merely abstract or theoretical matters, but only to decide actual controversies injuriously affecting the rights of some party to the litigation.”). 

II.  Attorney’s Fees and Costs

Finally, Wife argues the family court erred in failing to award her attorney’s fees and costs.  We agree. 

The family court has discretion in deciding whether to award attorney’s fees, and its decision will not be overturned absent an abuse of that discretion.  Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004).    In deciding whether to award attorney’s fees, the family court should consider: (1) each party’s ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; and (4) the effect of the fee on each party’s standard of living.  Id.

The family court required each party to pay their own attorney’s fees and costs based on the above-mentioned factors.  Based on our reversal of the family court’s modification of alimony, Wife’s beneficial result has changed.  Furthermore, Wife was forced to defend an existing award of alimony because of Husband’s action for modification, which required representation of an attorney.  Therefore, we find it proper to award Wife attorney’s fees, and we remand this issue back to the family court for a determination of an appropriate amount based on the factors as set forth in Patel, 359 S.C. at 533, 599 S.E.2d at 123.[3]  See Epperly v. Epperly, 312 S.C. 411, 416, 440 S.E.2d 884, 886-87 (1994) (remanding case to family court for reconsideration of attorney’s fees when wife succeeded in part on appeal); Sexton v. Sexton, 310 S.C. 501, 504, 427 S.E.2d 665, 666 (1993) (reversing and remanding the issue of attorney’s fees when substantive results achieved at trial level were reversed on appeal). 

CONCLUSION

Accordingly, we reverse the family court’s decision to reduce Husband’s alimony obligation due to a substantial and material change in his circumstances.  Additionally, we find it appropriate to award Wife attorney’s fees and costs and remand this issue to the family court to determine costs and attorney’s fees.  Therefore, the family court’s order is

REVERSED IN PART AND REMANDED IN PART.[4]

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.


[1] In 1999, Husband petitioned the family court for a reduction in alimony, which the family court denied because husband “failed to make out a clear showing that there has been a material change in the circumstances that would justify and require this court to reduce his payment of alimony to [Wife].” 

[2] However, Wife did keep books for Husband’s heating and air conditioning business. 

[3] Testimony from the record indicates Wife owes $3,250 in attorney’s fees based on twenty six hours of time billed at a $150 an hour.  Wife’s attorney submitted an affidavit to the family court to support attorney’s fees and costs with a statement concerning former Wife’s attorney’s age, background, and years of practice.  However, this affidavit is not part of the record on appeal.  Therefore, rather than determining attorney’s fees and costs at this level, we find it more appropriate for the family court to make a determination of a proper award. 

[4] We decide this case without oral arguments pursuant to Rule 215, SCACR.