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2009-UP-104 - Ryan v. Ryan

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 Francis Ryan, Jr., Respondent,

v.

Lois Jean Ryan, Appellant.


Appeal From Oconee County
 Tommy B. Edwards, Family Court Judge


Unpublished Opinion No. 2009-UP-104
Heard January 21, 2009 – Filed March 2, 2009


REVERSED AND REMANDED


Candy M. Kern-Fuller, of Piedmont, for Appellant.

Robert K. Whitney, of Seneca, for Respondent.

PER CURIAM:  In this action for separate support and maintenance, Lois Jean Ryan (Wife) appeals the family court's award of alimony, apportionment of marital property, and award of attorney's fees.  We reverse and remand.

FACTS / PROCEDURAL HISTORY

Wife and William Francis Ryan (Husband) were married approximately twenty years before they separated in 2005.  Husband subsequently filed this action requesting separate maintenance and support, division of the marital property, and attorney's fees. 

After a hearing, the family court issued a final order of separate maintenance.  In its order, the family court awarded Husband alimony and attorney's fees, awarded Wife the marital home, ordered Wife to provide Husband medical insurance, and equally apportioned the marital property.  This appeal followed.

LAW / ANALYSIS

I. ALIMONY

Wife argues the family court erred in awarding Husband alimony without weighing the factors set forth in section 20-3-130(C) of the South Carolina Code (Supp. 2008).  Specifically, Wife asserts the family court should have considered Husband's fault contributing to the breakup of the marriage.  Moreover, Wife asserts Husband's adultery barred an award of alimony.  Finally, Wife argues even if the family court did not err in awarding Husband alimony, the amount of the award was grossly disproportionate.

The family court judge may grant alimony in such amounts and for such term as the judge considers appropriate under the circumstances.  Smith v. Smith, 327 S.C. 448, 462, 486 S.E.2d 516, 523 (Ct. App.1997).  The family court is required to consider the following factors in making an alimony award: (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 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 (13) other factors the court considers relevant. S.C.Code Ann. § 20-3-130(C) (Supp. 2008).  The court must consider all relevant factors in determining alimony.  Davis v. Davis, 372 S.C. 64, 80, 641 S.E.2d 446, 454 (Ct. App. 2006); see also Patel v. Patel, 347 S.C. 281, 290, 555 S.E.2d 386, 391 (2001) (finding the trial court's denial of alimony was erroneous because the court did not address "several important factors" when determining no alimony should be awarded).  "Our inquiry on appeal is not whether the family court gave the same weight to particular factors as this court would have; rather, our inquiry extends only to whether the family court abused its considerable discretion in assigning weight to the applicable factors." Allen v. Allen, 347 S.C. 177, 186, 554 S.E.2d 421, 425 (Ct. App. 2001).

Here, both Husband and Wife testified at the hearing that Husband's misconduct or fault contributed to the breakup of their marriage.  Specifically, Husband testified he and Wife separated because his "son had [him] arrested for assault and battery."  Wife also pursued two restraining orders against husband because of his abusive behavior toward their son. 

The family court, however, did not consider this testimony in determining alimony.  In fact, the order provides: "neither party alleged marital misconduct on the other that could constitute fault grounds for divorce."  Pursuant to section 20-3-130(C)(10), the family court should have considered fault, even though it was not used as a basis for divorce or separate maintenance.  Accordingly, we remand this issue to the family court and direct the court to redetermine alimony, considering all relevant factors, especially including Husband's fault.

Wife's argument that Husband's adultery bars the award of alimony is without merit.  The only testimony at the hearing regarding adultery concerned an affair that occurred several years before the couple's separation, and the couple reconciled after Husband's affair.  See Doe v. Doe, 286 S.C. 507, 512, 334 S.E.2d 829, 832 (Ct. App. 1985) (holding husband could not avail himself of the statute barring alimony to an adulterous spouse when husband condoned wife's adultery; thus wife was still eligible for alimony).

We need not address the issue of whether the alimony was grossly disproportionate because we are remanding this case for a redetermination of alimony.  See Futch v. McAllister Towing of Georgetown, 335 S.C. 598, 613, 518 S.E.2d 591, 598 (Ct. App. 1991) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

II. MARITAL AND NON-MARITAL PROPERTY

Wife argues the family court erred by failing to weigh Husband's fault in the breakup of the marriage in apportioning the marital property.  Wife also argues the family court erred by apportioning non-marital property.

In determining an equitable distribution of marital property, the family court must identify, value, and equitably apportion the property.  Johnson v. Johnson, 288 S.C. 270, 276, 341 S.E.2d 811, 815 (Ct. App. 1986).  The court must consider several factors in making an equitable distribution.  S.C. Code Ann. § 20-3-620 (Supp. 2008) (outlining fifteen factors for the family court to consider in equitable distribution).  Included in those factors is the marital misconduct or fault of either party.  S.C. Code Ann § 20-3-620(2) (Supp. 2008).

Here, as set forth above, the only mention of Husband's fault in the family court order provides: "neither party alleged marital misconduct on the other that could constitute fault grounds for divorce."  Because the family court failed to consider Husband's fault when apportioning marital property, we reverse and remand this issue for the family court to examine all of the factors set forth in section 20-3-620 and redetermine the equitable distribution of the marital property.

We need not address Wife's argument regarding nonmarital property because we are remanding the entire issue of apportionment to the family court.  See Futch, 335 S.C. at 613, 518 S.E.2d at 598.

III. ATTORNEY'S FEES

Wife argues the family court erred by awarding Husband attorney's fees without making specific findings of fact on the record regarding each of the required factors to be considered.

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 v. Johnson, 296 S.C. 289, 304, 372 S.E.2d 107, 115 (Ct. App. 1988). 

The family court has jurisdiction to award reasonable attorney's fees when a claim for attorney's fees is well-founded.  S.C. Code Ann. §§ 20-3-120-140 (Supp. 2008).  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). 

Here, we are reversing and remanding this action to the family court.  Husband's attorney, therefore, has not obtained beneficial results on appeal.  Accordingly, we vacate the family court's award of attorney's fees.   

CONCLUSION

As set forth above, we reverse and remand this action for the family court to reexamine the issues of alimony, equitable distribution, and attorney's fees.

REVERSED AND REMANDED.

SHORT and KONDUROS, JJ., and GOOLSBY, A.J., concur.