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2010-UP-510 - Hawkins v. Hawkins

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

Wendell Leon Hawkins, Appellant/Respondent,

v.

Elizabeth Leigh Bannister Hawkins, Respondent/Appellant.


Appeal From Greenville County
Gerald C. Smoak, Jr., Family Court Judge


Unpublished Opinion No. 2010-UP-510
Submitted November 1, 2010 – Filed November 30, 2010


AFFIRMED IN PART AND REVERSED IN PART


Joseph M. Ramseur, Jr., and Megan G. Sandefur, both of Greenville, for Appellant/Respondent.

James T. McLaren and C. Dixon Lee, of Columbia, both for Respondent/Appellant.

PER CURIAM: In this cross-appeal from the family court, Wendell Leon Hawkins (Husband) asserts the family court erred in failing to require reimbursement of temporary alimony and spousal support.  Husband further asserts the family court erred in equitably apportioning the parties' assets and debts, and in ordering Husband to pay attorney's fees to Elizabeth Leigh Bannister Hawkins (Wife).  Wife also appeals, arguing the family court erred in failing to include Husband's law practice as marital property for purposes of equitable division.  We reverse[1] in part and affirm in part the family court's order pursuant to Rule 220(b), SCACR, and the following authorities:

1.  As to whether the family court erred in finding that Husband was not entitled to reimbursement of previously paid temporary alimony and spousal support during the pendency of the litigation, we reverse and find Husband is entitled to reimbursement of previously paid temporary alimony and spousal support in the amount of $24,000: See S.C. Code Ann. § 20-3-130(A) (Supp. 2009) ("No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties."); Pruitt v. Pruitt, 389 S.C. 250, 273, 697 S.E.2d 702, 714-15 (Ct. App. 2010) (holding husband was entitled to the reimbursement of alimony payments made after the wife's adulterous activity, but not to alimony payments made prior to the adultery); see also Griffith v. Griffith, 332 S.C. 630, 642, 506 S.E.2d 526, 532 (Ct. App. 1998) ("The establishment of adultery as a defense to alimony is a bar to all alimony under section 20-3-130(A), and requires the reimbursement of court-ordered temporary spousal support."); Watson v. Watson, 291 S.C. 13, 22-24, 351 S.E.2d 883, 889-90 (Ct. App. 1986) (reducing wife's equitable distribution award by the amount of pendent lite support paid by the husband where the husband established wife committed adultery at merits hearing).    

2.  As to whether the family court erred in equitably apportioning the parties' assets and debts, we find this issue abandoned on appeal. See Pruitt, 389 S.C. at 269, 697 S.E.2d at 712 ("Short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.") (internal quotation and citation omitted); Blanding v. Long Beach Mortg. Co., 379 S.C. 206, 224, 665 S.E.2d 608, 618 (Ct. App. 2008) (stating an issue first raised in a motion to alter or amend the judgment is not preserved for review).  Even if not abandoned, Husband failed to prove the debt incurred on the Chase credit card was nonmarital.  See Pruitt, 389 S.C. at 259-60, 697 S.E.2d at 707 (asserting the court's equitable division of marital property will not be disturbed on appeal absent an abuse of discretion); Wooten v. Wooten, 364 S.C. 532, 547, 615 S.E.2d 98, 105 (2005)  ("When a debt is incurred after the commencement of litigation but before the final divorce decree, the family court may equitably apportion it as a marital debt when it is shown the debt was incurred for marital purposes, i.e., for the joint benefit of both parties during the marriage.") (citation omitted); Mosley v. Mosley, Op No. 4759 (S.C. Ct. App. Filed Nov. 10, 2010) (Shearouse Adv. Sh. No. 46 at 41) ("[T]he court's broad scope of review does not relieve the appellant of the burden of proving to this Court that the family court committed error."). 

3.  As to whether the family court erred in ordering Husband to pay $50,000 towards Wife's attorney's fees, we affirm.  See Dickert v. Dickert, 387 S.C. 1, 10, 691 S.E.2d 448, 452-53 (2010) (finding whether to award attorney's fees is a matter within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion); Susan R. v. Donald R., 389 S.C. 107, 117, 697 S.E.2d 634, 639-40 (Ct. App. 2010) ("A party's fault in causing a divorce is not a factor to be considered when awarding attorney's fees.") (internal quotation and citation omitted);  Nienow v. Nienow, 268 S.C. 161, 172, 232 S.E.2d 504, 510 (1977) (holding award of attorney's fees was proper where there was a financial disparity between the parties and the burden of attorney's fees would necessarily decrease the wife's standard of living); E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992) ("In determining whether an attorney's fee should be awarded, the following factors should be considered: (1) the party's ability to pay his/her own attorney's fee; (2) beneficial results obtained by the attorney; (3) the parties' respective financial conditions; [and] (4) effect of the attorney's fee on each party's standard of living.") (internal citation omitted); Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) ("[T]he six factors . . . in determining a reasonable attorney's fee:  (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.") (internal citation omitted). 

4.  As to whether the family court erred in failing to identify Husband's interest in his law practice as marital property subject to equitable division, we affirm.  See Dawkins v. Dawkins, 386 S.C. 169, 172, 687 S.E.2d 52, 54 (2010) ("An appellate court should approach an equitable division award with a presumption that the family court acted within its broad discretion."); Dickert, 387 S.C. at 7, 691 S.E.2d at 451 (holding that due to the intangible nature of the goodwill asset, "enterprise goodwill" in a professional practice is not subject to equitable distribution); Donahue v. Donahue, 299 S.C. 353, 359, 384 S.E.2d 741, 745 (1989) (stating goodwill "attaches to the person of the professional man or woman as a result of confidence in his or her skill and ability . . . . It does not possess value or constitute an asset separate and apart from the professional's person, or from his individual ability to practice his profession. It would be extinguished in the event of the professional's death, retirement or disablement."); Casey v. Casey, 293 S.C. 503, 504, 362 S.E.2d 6, 7 (1987) (recognizing the speculative nature of goodwill and holding that goodwill dependent upon an owner's future earnings could not be made part of the marital estate subject to equitable distribution.). 

Accordingly, the judgment herein is

AFFIRMED IN PART and REVERSED IN PART.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


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