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2009-UP-159 - Durden v. Durden

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

George A. Durden, Appellant/Respondent,

v.

Shirley N. Durden, Respondent/Appellant.


Appeal From Dorchester County
 Robert N. Jenkins, Sr., Family Court Judge


Unpublished Opinion No.  2009-UP-159
Submitted March 2, 2009 – Filed March 31, 2009


AFFIRMED


George A. Durden, pro se, of Greenwood, for Appellant/Respondent.

David L. Devane, and Ben F. Mack, both of Summerville, for Respondent/Appellant. 

PER CURIAM:  George A. Durden (Husband) and Shirley N. Durden (Wife) both appeal the family court’s final order, reducing Husband’s alimony to $325 per month and ordering each party responsible for their own attorney fees and cost.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

I.  Husband’s Appeal

1.  As to whether this court should defer to the factual findings of the family court when this court has the right to review the evidence de novo: Ray v. Ray, 374 S.C. 79, 83, 647 S.E.2d 237, 239 (2007) (holding this court has the authority to find facts in accordance with its view of the preponderance of the evidence, but this broad scope of review does not require this court to disregard the findings of the family court who saw and heard the parties, and is in a better position to evaluate their credibility).

2.  As to whether Wife’s financial declaration reflects a true statement of her financial position, and whether the trial court erred in: (1) considering Husband’s share of his disability retirement annuity as a source of income for awarding alimony, (2) amending a draft of its final order, and (3) requiring Husband to pay a 5% service fee on his alimony: McDavid v. McDavid, 333 S.C. 490, 497, 511 S.E.2d 365, 368-69 (1999) (holding any matter not raised and ruled upon by the family court cannot be considered by this court on appeal).    

3.  As to whether the family court erred in not eliminating alimony due to the Husband’s substantial change of circumstances: Eubank v. Eubank, 347 S.C. 367, 372, 555 S.E.2d 413, 415 (Ct. App. 2001) (“The question of whether to increase or decrease support due to changed circumstances is within the sound discretion of the family court and such conclusions will not be disturbed on appeal absent an abuse of discretion.”). 

4.  As to whether the family court erred in denying his request for retroactive alimony reduction: Thornton v. Thornton, 328 S.C. 96, 115, 492 S.E.2d 86, 96 (1997) (“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 by the family court.”). 

5.  As to whether the family court erred in denying his request for attorney’s fees:  Simpson v. Simpson, 377 S.C. 527, 538, 660 S.E.2d 278, 284 (Ct. App. 2008) (“The award of attorney’s fees is within the sound discretion of the family court and absent an abuse of discretion, will not be disturbed on appeal.”).

II.  Wife’s Appeal

1.  As to whether the family court erred in reducing Husband’s alimony payment to Wife and in considering Wife’s entitlements from the sale of the marital home in its decision to reduce Husband’s alimony: Eubank, 347 S.C. at 372, 555 S.E.2d at 415 (“The question of whether to increase or decrease support due to changed circumstances is within the sound discretion of the family court and such conclusions will not be disturbed on appeal absent an abuse of discretion.”); Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct. App. 2004) (holding the family court may consider several factors in its determination to modify alimony, 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); Blakely v. Blakely, 249 S.C. 623, 625, 155 S.E.2d 857, 858 (1967) (stating an error must be material and prejudicial to the substantial rights of the appellant in order for an alimony order to be reversible). 

2.  As to whether the family court erred in denying Wife’s request for an award of attorney’s fees: Simpson, 377 S.C. at 538, 660 S.E.2d at 284 (“The award of attorney’s fees is within the sound discretion of the family court and absent an abuse of discretion, will not be disturbed on appeal.”).

AFFIRMED.[1]

HEARN, C.J., PIEPER and LOCKEMY, concur.


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