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2010-UP-140 - Chisholm v. Chisholm

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William Barry Chisholm, Appellant,

v.

Susan Elaine Chisholm, Respondent.


Appeal From Greenville County
 R. Kinard Johnson, Jr., Family Court Judge


Unpublished Opinion No. 2010-UP-140
Submitted February 1, 2010 – Filed February 22, 2010


REVERSED


William B. Chisholm, of Greenville, for Appellant.

Kenneth C. Porter, of Greenville, for Respondent.

PER CURIAM: In this domestic relations action, William Barry Chisholm (Husband) appeals the family court's order subsequent to divorce, arguing the family court erred in requiring him to pay one hundred percent of his son's private-school tuition and a portion of his ex-wife's attorney's fees.  We reverse.[1]

Husband and Susan Elaine Chisholm (Wife) married in 1979.  Their marriage produced two children, Daughter and Son.  In July 2001, following Daughter's graduation from high school, Husband filed for divorce.  On April 4, 2003, the family court granted the divorce based upon one year's continuous separation and required Husband to pay one hundred percent of Son's remaining private-school tuition, as well as $13,000 toward Wife's attorney's fees.[2]  Both Husband and Wife appealed, and this court reversed and remanded the issues of Husband's contributions to Son's private-school tuition and Wife's attorney's fees.  Chisholm v. Chisholm, Op. No. 2005-UP-067 (S.C. Ct. App. filed Jan. 25, 2005).  No appeal was taken from this opinion.  On remand, the family court heard additional evidence and reduced Husband's obligation for Wife's attorney's fees from $13,000 to $10,500 but declined to alter Husband's obligation for Son's tuition or child support.  Husband filed a motion to alter or amend pursuant to Rule 59(e), SCRCP, which the family court denied.  In May 2005, the family court terminated Husband's child support obligation because Son completed high school and turned eighteen that month.  This appeal followed.

On appeal from the family court, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence.  Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994).  However, in a family court matter, "[t]he award of attorney's fees is left to the discretion of the trial judge and 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).

We agree with Husband's assertion the family court erred in requiring him to pay one hundred percent of Son's tuition for his junior and senior years in high school.  We find the family court's order contravened our unappealed opinion requiring the family court to allocate Son's tuition costs or to reduce Husband's child support obligation to offset his tuition payments.  See Chisholm v. Chisholm, Op. No. 2005-UP-067 (S.C. Ct. App. filed Jan. 25, 2005); see also Ables v. Gladden, 378 S.C. 558, 569, 664 S.E.2d 442, 448 (2008) (holding an unappealed ruling is the law of the case).  Although the family court held an evidentiary hearing at which it invited Husband to submit evidence of his expenses, it failed to modify its order as to either tuition or child support.  We find adequate information to make this determination was already before the family court and reflected in its own orders.  Consequently, this failure was error. 

In light of the unappealed prior decision of this court and the evidence of record, we find Husband responsible for fifty-nine percent of Son's junior and senior years' tuition and Wife responsible for forty-one percent.  See Epperly, 312 S.C. at 414, 440 S.E.2d at 885.  In its December 11, 2001, order, the family court found Husband's gross monthly income was $6,066.66, or fifty-nine percent of the parental income, and Wife's was $4,215.42, or forty-one percent of the parental income.  The Child Support Worksheet prepared by Wife's counsel on March 28, 2003, reflects similar numbers, with a similar division of parental responsibility.  The record does not reflect the family court modified its December 2001 findings at any time.  At the hearing on remand, Husband did not know the total he had paid toward Son's tuition; however, he testified he paid the entire cost of Son's tuition for the final two years of high school.[3]  Wife presented no evidence of any payment.  Therefore, the family court erred in failing to allocate Son's tuition cost between the parties.

We also agree with Husband's assertion the family court erred in requiring him to pay a portion of Wife's attorney's fees and costs, while refusing to require Wife to contribute to Husband's. 

Under South Carolina law, the family court has jurisdiction to determine whether to award attorney's fees in a matter properly before it.  S.C. Code Ann. § 63-3-530(A) (2009).  However, "[a]n 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."  Rule 26(a), SCRFC.   In deciding whether to award attorney's fees upon request of a party, "the court should evaluate the requesting party's ability to pay, the parties' respective financial conditions, the effect of the award on each party's standard of living, and the beneficial results achieved."  Upchurch, 367 S.C. at 28, 624 S.E.2d at 648.  A beneficial result will not secure an award of attorney's fees where the other factors do not support such an award.  Mazzone v. Miles, 341 S.C. 203, 214, 532 S.E.2d 890, 895 (Ct. App. 2000). 

We hereby reverse the family court's attorney's fees award to Wife because the family court failed to support its award with the required findings of fact.  In awarding attorney's fees, the family court is required to evaluate each of the four factors enunciated in Upchurch and to set forth findings of fact and conclusions of law supporting its decision.  367 S.C. at 28, 624 S.E.2d at 648; Rule 26(a), SCRFC.  Here, the family court considered only one factor, both in its original adjudication and on remand.  The findings pertaining to the sole factor addressed in the family court's two orders, the achievement of beneficial results, are insufficient to support an award of attorney's fees.  In failing to find facts relating to the Wife's ability to pay, each party's financial condition, and the effect of the award on the parties' respective standards of living, the family court abused its discretion in awarding attorney's fees to Wife.  See Mazzone, 341 S.C. at 214, 532 S.E.2d at 895. 

Furthermore, we find neither Husband nor Wife proved facts sufficient to support an award of attorney's fees.  See Epperly, 312 S.C. at 414, 440 S.E.2d at 885 (holding the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence when reviewing family court decisions).  The family court observed Wife had incurred more than $21,000 in attorney's fees, and Husband testified he had incurred approximately $41,000 in attorney's fees. 

With regard to the first three Upchurch factors, the record reflects both Husband and Wife are gainfully employed, earning approximately $80,000 and approximately $50,000 per year, respectively.  Moreover, the family court's apportionment of marital property provided both Husband and Wife with additional financial resources in the form of multiple individual retirement accounts.  Although Husband's overall financial condition, according to the record, is somewhat stronger than Wife's, the record does not indicate that either party would suffer hardship from paying his or her own attorney's fees.  Wife's financial condition is somewhat weaker, but Husband incurred a great deal more debt to his attorneys.  As a result, both parties would likely see a decline in their standards of living until their attorney's fees were paid off.  Finally, with regard to beneficial results, the family court correctly found Wife prevailed on the hotly contested issue of custody of Son.  Husband prevailed on the less contentious issue of liberal visitation with Son, issues relating to identification and equitable apportionment of marital assets, and, following the first appeal, the issue of Son's tuition.  Consequently, our review of these factors does not indicate either party is entitled to an award of attorney's fees and costs. 

Accordingly, the order of the family court is

REVERSED.

PIEPER, GEATHERS, JJ., and CURETON, A.J., concur.


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

[2] The tuition at issue is only for Son's junior and senior years.  Husband paid tuition for Son's freshman year outright.  Husband and Wife funded the tuition for Son's sophomore year pursuant to an agreement between them:  Wife secured financial aid and Husband paid a portion of tuition for Son's sophomore year.  The April 2003 family court order from which appeal was originally taken stated, "Father is to enable the child to attend Christ Church Episcopal School until he graduates from high school."  Because this language is prospective and the family court made no effort to require Husband to reimburse Wife for any payments she may have made toward tuition during the sophomore year, we address parental obligations for junior and senior years, only.

[3] Husband attached to his brief supporting his Rule 59(e) motion tuition records obtained from the records custodian of Christ Church Episcopal School.  These records reflect the dates and amounts of all payments made to Son's account for his junior and senior years, including those made by Wife.  Although this information was not available for the family court's consideration at the hearing on remand, it is clearly available for the parties' use in calculating their respective obligations pursuant to this opinion.