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2008-UP-198 - Hines v. Hines

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


Karen Allen-Hines, Appellant,

v.

Franklin Hines, Respondent.


Appeal From Darlington County
 Roger E. Henderson, Family Court Judge


Unpublished Opinion No. 2008-UP-198
Heard March 4, 2008 – Filed March 20, 2008  


AFFIRMED IN PART and REMANDED


Cynthia Barrier Patterson, of Columbia and Robert N. Rosen, of Charleston, for Appellant.

Robert F. Gardner and J. Anthony Floyd, both of Hartsville, for Respondent.

PER CURIAM:  In this divorce action, Karen Allen-Hines (Wife) appeals the family court’s order denying her a special equity interest in Franklin Hines’ (Husband) businesses and awarding her one year’s rehabilitative alimony and partial attorney’s fees.  We affirm in part and remand.[1] 

FACTS

Husband and Wife (collectively the Hineses) married on February 14, 1998.  Both Husband and Wife had been married previously.  The Hineses had no children together, though each had children from their previous relationships.  Husband had owned and operated a funeral home and cemetery since 1996.  The Hineses met when Wife utilized Husband’s services following her previous husband’s death.

Husband earned a bachelor’s degree in education.  Husband began working at the family’s funeral home in 1973 and inherited it from his mother in 1996.  Before settling into his family’s funeral home business, he attended college, served in the military, taught school, and worked for the United States Postal Service.  In addition to the funeral home and cemetery, Husband owned several other properties, including a 75% interest in his home.  Husband was 70 years old at the time of trial.

Wife earned a bachelor’s degree in sociology and a master’s degree in public administration.  In 1974, Wife worked as a social worker, but she had no degree in that area.  During her previous marriage, Wife raised the children and did not regularly work outside the home after 1989.  Her previous husband handled all the family’s finances until his death.  Wife’s net inheritance from her previous husband totaled approximately $1.5 million and included her home.  This inheritance supported Wife and her two dependent sons.  At the time of trial, this inheritance was severely depleted, and Wife possessed less than $500,000, most of which lay in home equity and personal property.  Wife was 49 years old at the time of trial. 

During their marriage, the Hineses lived primarily in Wife’s home from her former marriage.  Husband maintained his own separate home and kept his clothes at his house until Wife constructed a closet in her home to accommodate his clothes.  The Hineses also maintained separate bank accounts, except for one joint checking account they used to pay household bills.  Both Husband and Wife agreed to fund this account.  Despite an agreement to split household costs evenly, Husband often failed to deposit money into the joint account.  As a result, Wife’s funds paid most of the household bills.  Wife had poor money-management skills and frequently purchased extravagant items with her funds.  Wife met with a financial consultant who helped her create a budget, but she did not adhere to it.  Wife attempted unsuccessfully to gain outside employment during and after the marriage. 

During the marriage, Wife helped out at the funeral home and cemetery.  She did not make financial contributions to Husband’s business.  The funeral home compensated Wife for staffing and managing the floral department.  Without compensation, she also drove the limousine four or five times, attended funerals, redecorated the funeral home locations at Hartsville and Lamar, decorated the office at the cemetery, prepared lunches for Husband and his employees, delivered flowers, and generally helped out where needed.  Wife also made public appearances on behalf of the funeral home.  Furthermore, she introduced Husband to nationally known religious events in which she already participated.  When the funeral home later began sponsoring these events, Wife arranged television broadcasts of the events.  During the marriage, the funeral home and cemetery’s gross sales increased by approximately $342,058,[2] and the overall value of the funeral home increased by $396,444. 

The Hineses separated and reconciled five times during the marriage, usually due to financial stress.[3]  After their final separation, Wife filed an action for separate maintenance.  The family court tried this matter in June of 2004.  On August 5, 2004, the family court entered an order granting divorce on the ground of one year’s continuous separation and reserving jurisdiction to determine all other issues separately.  On January 10, 2005, the family court entered an order awarding Wife one year of rehabilitative alimony and partial attorney’s fees.  The order also denied Wife a special equity interest in Husband’s funeral home and cemetery.  Wife filed a motion to alter or amend the judgment, which was denied.  This appeal followed.

LAW/ANALYSIS

I.  Special Equity

Wife argues the family court erred in declining to award her a special equity interest in Husband’s business.  We disagree.    

The family court has jurisdiction to apportion marital property.  S.C. Code Ann. § 20-7-472 (Supp. 2007).  In determining the most equitable apportionment of marital property, the family court must weigh all fifteen statutory factors.  Id.  Property acquired before the marriage or after entry of a divorce order is not marital property and, therefore, is not subject to apportionment.  S.C. Code Ann. § 20-7-473(2) (Supp. 2007).  However, “any increase in value in nonmarital property[,] to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage,” is apportionable marital property.  § 20-7-473(5).  The increase in value need not derive from the non-owner spouse’s financial contributions.  Johnson v. Johnson, 296 S.C. 289, 299, 372 S.E.2d 107, 113 (Ct. App. 1988).  The non-owner spouse is entitled to an equitable apportionment of any increase in value that results from the employment of his or her “labor and skills.”  Id. at 299, 372 S.E.2d at 113.  

We find Wife is not entitled to a special equity interest in Husband’s funeral home and cemetery businesses.  Husband owned and operated these businesses prior to the marriage; thus, the businesses themselves are nonmarital property.  Although Wife presented evidence that she performed uncompensated services in support of the business, she failed to establish a causal connection between her efforts and any portion of the increased value of Husband’s businesses.  Therefore, Wife is not entitled to a special equity interest in the increased value of those businesses.

II.  Spousal Support

Wife argues the family court erred in awarding her one year of rehabilitative alimony instead of permanent periodic alimony.  We remand this issue to the family court to make additional findings as to what special circumstances exist to support its award of rehabilitative alimony, or, in the absence of special circumstances, to award permanent periodic alimony instead. 

An award of alimony rests within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion.  Allen v. Allen, 347 S.C. 177, ­­­183-84, 554 S.E.2d 421, 424 (Ct. App. 2001).  An abuse of discretion occurs when the conclusions of the family court either lack evidentiary support or are controlled by an error of law.  Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct. App.2001).

Alimony is a substitute for the support normally incident to marriage.  Allen, 347 S.C. at 184, 554 S.E.2d at 424.  The purpose of alimony is to place the supported spouse in a position as near as possible to the position he or she enjoyed during the marriage.  Id. at 184, 554 S.E.2d at 424.  In awarding alimony, the family court must weigh all nine statutory factors.  S.C. Code Ann. § 20-3-130(C) (Supp. 2007).  How much weight to accord each factor is within the family court’s sound discretion.  Id.  The family court has discretion to determine the amount of any alimony award.  S.C. Code Ann. § 20-3-130(B)(1) (Supp. 2007).  All types of alimony contemplated by statute are modifiable and terminable.  S.C. Code Ann. § 20-3-130 (Supp. 2007)   Furthermore, the family court may impose whatever “terms and conditions” on an alimony award “as the court may consider just, as appropriate under the circumstances.”  S.C. Code Ann. § 20-3-170 (Supp. 2007). 

Where alimony is appropriate, South Carolina favors permanent periodic alimony over the other types of alimony described by statute.  Jenkins v. Jenkins, 345 S.C. 88, 95, 545 S.E.2d 531, 535 (Ct. App. 2001).    Despite this preference, South Carolina does recognize rehabilitative alimony in certain circumstances. Rehabilitative alimony encourages a dependent spouse to become self-supporting after divorce and permits a former spouse to develop his own life free from obligations to the dependent spouse.  Belton v. Belton, 325 S.C. 456, 459-60, 481 S.E.2d 174, 176 (Ct. App. 1997).  “Rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference from permanent periodic support.”  Jenkins, 345 S.C. at 95, 545 S.E.2d at 535. 

An award of one year of rehabilitative alimony without a finding of special circumstances meriting departure from permanent periodic alimony was improper.  In finding Wife entitled to spousal support, the family court carefully weighed the statutory factors, noting in particular the brief term of the marriage, numerous separations, and the parties’ advanced degrees.  The family court awarded one year of rehabilitative alimony based upon Wife’s antiquated work experience, “her degrees, her intelligence and her sophistication.”  However, neither party made the showing of special circumstances required for such an award, and Wife did not request rehabilitative alimony.  The family court observed, “there was no testimony as to what type of training may be required to enable [Wife] to become successful in the job market.”  Indeed, no evidence of an educational program or plan, a timetable, a projected cost of retraining Wife, or an estimate of Wife’s likely earnings exists to support this award. 

Given the lack of specific findings of special circumstances warranting a departure from permanent periodic alimony, we find the family court erred in awarding one year of rehabilitative alimony.  Accordingly, we remand this issue for the family court to determine whether special circumstances exist to support its award of rehabilitative alimony, or, in the absence of special circumstances, to award permanent periodic alimony instead of rehabilitative alimony.

III.  Attorney’s Fees

Wife argues the family court erred in awarding her an insufficient amount of attorney’s fees and costs.  We agree. 

In a family court matter, “[t]he award of attorney’s fees . . . will only be disturbed upon a showing of abuse of discretion.”  Upchurch v. Upchurch, 367 S.C. 16, 28, 624 S.E.2d 643, 648 (2006).  “A decision lacking a discernible reason is arbitrary and constitutes an abuse of discretion.”  Johnson, 296 S.C. at 304, 372 S.E.2d at 115. 

The family court has jurisdiction to award reasonable attorney’s fees where a claim for attorney’s fees is well-founded.  S.C. Code Ann. §§ 20-3-120 through -140, § 20-7-420(38) (Supp. 2007).  The decision whether to award attorney’s fees is within the discretion of the family court.  Upchurch, 367 S.C. at 28, 624 S.E.2d at 648.  In determining whether to award attorney’s fees, the family court should consider each party’s ability to pay his or her own fees, the beneficial results obtained, the parties’ respective financial conditions, and the effect of the fee on the parties’ standards of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).  The reasonableness of an attorney’s fee lies in “(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.”  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).  Other factors to consider in awarding attorney’s fees are “the abilities of the parties to pay, their respective financial conditions and the effect of the attorney’s fees on each party’s standard of living.”  Mitchell v. Mitchell, 283 S.C. 87, 93, 320 S.E.2d 706, 710 (1984).  The factors enunciated by the court, and not the amount of any other monies awarded in the suit, determine the appropriate amount of an award of attorney’s fees.  Williamson v. Middleton, 374 S.C. 419, 431, 649 S.E.2d 57, 64 (Ct. App. 2007).

We find Wife is entitled to attorney’s fees pursuant to the factors of E.D.M.  The family court found Wife had incurred a total of $68,103.46 in attorney’s fees and costs, and Husband had incurred $14,853.25 in fees and costs.  The family court then required Husband to pay $7,500.00 to one of Wife’s attorneys, presumably in addition to the $5,000.00 previously ordered.  Although it recognized Husband’s uncooperative behavior during discovery increased the difficulty of Wife’s case, the family court failed to set forth sufficiently specific findings to illuminate a discernible reason for requiring Husband to pay such a small portion of Wife’s bill.  We are unable to determine why the family court awarded Wife only $12,500.00 when her total attorney’s fees and costs exceeded Husband’s by $53,250.21.  We are concerned the order in this matter failed to address the impact of this award on either party.  Accordingly, we find the family court erred in failing to support its award with specific findings that suggest a discernible reason. 

The family court did not err in refusing to require Husband to pay all of Wife’s attorney’s fees.  Although Wife argues she should receive full fees, the cases to which she cites are distinguishable from the one at bar.  In Johnson, a mentally and physically abusive husband filed suit to enforce an invalid antenuptial agreement.  296 S.C. at 292, 372 S.E.2d at 109.  Furthermore, he refused to answer discovery, filed a grossly misleading financial declaration, and contested every issue.  Id. at 303-04, 372 S.E.2d at 115.  In Taylor v. Taylor, a husband sued his former wife three different times, she prevailed each time, and he appealed, only to dismiss his appeal later.  333 S.C. 209, 220, 508 S.E.2d 50, 56 (Ct. App. 1998).  Unlike his former wife, the husband was able to afford lengthy lawsuits and intentionally prolonged and complicated each suit.  Id., 508 S.E.2d at 56. 

In the case at bar, only one lawsuit exists between the parties.  Wife filed for separate maintenance, and both parties requested and received a divorce on the ground of one year’s continuous separation, the so-called “no-fault” ground.  The family court found it “difficult to determine what actually caused the dissolution of the marriage.”  Unlike the hapless wives in Johnson and Taylor, Wife initiated this suit, through which both parties obtained relief.  Therefore, an award of full fees to Wife would be inappropriate.  

Consequently, we remand the issue of attorney’s fees to the family court for an order incorporating specific findings as to the factors expressed in E.D.M., Glasscock, and Mitchell and awarding appropriate relief. 

CONCLUSION

As to the issue of Wife’s special equity interest in the increased value of Husband’s businesses, we find Wife failed to establish a causal connection between her actions and any increase in the value of Husband’s  businesses.  Therefore, we affirm the family court’s denial of a special equity interest in the increased value of those businesses.

As to the issue of spousal support, we find the family court erred in awarding Wife one year of rehabilitative alimony without a showing of special circumstances meriting this award.  Neither party appealed the family court’s finding that Wife is entitled to alimony.  Therefore, we find Wife is entitled to permanent periodic alimony, unless a showing is made of special circumstances justifying rehabilitative alimony.  Accordingly, we remand this issue to the family court for further proceedings in accordance with this opinion.   

Finally, as to the issue of attorney’s fees, we find the family court erred in failing to support its award with sufficiently specific findings to explain its decision.  We also find Wife was not entitled to an award of full attorney’s fees.  Therefore, we remand the issue of attorney’s fees to the family court for an order incorporating specific findings in accordance with this opinion and awarding appropriate relief. 

Accordingly, the order of the family court is

AFFIRMED IN PART AND REMANDED. 

ANDERSON, SHORT, and THOMAS JJ., concur.


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

[2] From 1998 to 2002, the approximate term of the marriage, the funeral home’s gross sales increased from about $380,000 to about $624,000, an increase of about $244,000.  During that same time period, the cemetery’s gross sales increased from $36,942 to about $135,000, an increase of about $98,058.

[3] One separation occurred when Wife insisted Husband leave the house because he had been drinking.