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2011-UP-085 - Delozier v. Delozier

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 J. Delozier, Respondent,

v.

Mary Joan Delozier, Appellant.


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


Unpublished Opinion No. 2011-UP-085 
Submitted February 1, 2011 – Filed March 1, 2011


AFFIRMED AS MODIFIED


H. Fred Kuhn, Jr., of Beaufort, for Appellant.

William J. Delozier, pro se, of Simpsonville, for Respondent.

PER CURIAM: Mary Joan Delozier (Wife) appeals a family court order modifying a divorce decree entered between her and William J. Delozier (Husband).  Wife argues the family court erred in (1) calculating her award of retroactive child support and (2) denying her attorney's fees and costs.   We affirm as modified.[1]

I.  Retroactive Child Support

Wife contends the family court erred in calculating the total amount of her retroactive child support.  We agree and modify the order to reflect the correct total.

"The decision to award retroactive child support rests in the sound discretion of the family court."  Engle v. Engle, 343 S.C. 444, 453, 539 S.E.2d 712, 716 (Ct. App. 2000).  "[A]bsent an abuse of discretion, [that decision] will not be disturbed on appeal.  An abuse of discretion occurs when the court['s decision] is controlled by some error of law or where the order, based upon the findings of fact, is without evidentiary support."  Id. at 448-49, 539 S.E.2d at 714. 

Here, the family court's calculation of monthly, retroactive child support had evidentiary support.  The family court found Wife's monthly income constituted $3,500 from alimony and $975 from employment.  Moreover, the family court found Husband's income was $7,000 per month and granted Husband a credit of $285 per month for health insurance he paid for his minor children.  The child support worksheet used these figures, and both the worksheet and the final order showed Wife was entitled to child support of $242 per month.  Therefore, the family court's order properly granted Wife monthly, retroactive child support of $242.

Although the family court properly granted the figure for monthly, retroactive child support, the family court erred in calculating the total amount of Wife's retroactive child support.  The family court granted retroactive support from June 26, 2006, through December 7, 2007, and it found the total retroactive support owed was $1,452.  However, the length of that period and the $242 figure granted for monthly, retroactive support show the total grant of $1,452 resulted from a mathematical miscalculation.  Therefore, the family court's grant of total, retroactive support was without evidentiary support, and using the monthly figure of $242, Wife was entitled to a total amount of $4,356.  Accordingly, we affirm the family court's award of retroactive child support but modify the order to grant the correct total amount of retroactive child support—$4,356.

II. Attorney's Fees

Wife argues the family court abused its discretion in denying her request for attorney's fees and costs because the family court (1) erroneously applied Rule 1.5, RPC, Rule 407, SCACR, and Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991), in deciding whether to grant attorney's fees and costs and (2) did not provide sufficient findings of fact and conclusions of law under Rule 26(a), SCRFC.  We disagree. 

"The family court has discretion in deciding whether to award attorney's fees, and its decision will not be overturned absent an abuse of discretion.  An abuse of discretion occurs when the decision is controlled by an error of law . . . ."  Feldman v. Feldman, 380 S.C. 538, 546, 670 S.E.2d 669, 673 (Ct. App. 2008).  Whether a family court should grant attorney's fees depends upon four factors: "(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) [the] effect of the attorney's fee on each party's standard of living."  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). 

Here, the family court's citation of Glasscock and Rule 1.5 did not reflect a use of the incorrect legal standard because the court's order listed the four factors from E.D.M. for whether to grant attorney's fees and costs.  Moreover, the family court made sufficient findings in denying Wife attorney's fees and costs.  The family court found the parties obtained beneficial results from their attorneys and could pay their attorney's fees and costs.  Even if those findings were insufficient by themselves, considering the order in its entirety we find the family court's decision was sufficiently based upon all of the E.D.M. factors, including the parties' financial conditions and standards of living.  Therefore, the family court did not abuse its discretion in denying Wife's request for attorney's fees and costs. 

AFFIRMED AS MODIFIED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


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