Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2011-UP-097 - Oxner v. Oxner

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

George Wyman Oxner, Appellant,

   v.

Johnnie Mimms Oxner, Respondent.


Appeal From Orangeburg County
Anne Gue Jones, Family Court Judge


Unpublished Opinion No.  2011-UP-097
Submitted March 1, 2011 – Filed March 10, 2011


AFFIRMED


Spencer Andrew Syrett, of Columbia, for Appellant.

Michael C. Tanner, of Bamberg, for Respondent.

PER CURIAM:  George Wyman Oxner (Husband) appeals the family court's order finding a substantial change in circumstances existed warranting a reduction in his alimony payments to Johnnie Mimms Oxner (Wife).  He argues the family court erred in: (1) declining to terminate his alimony payments to Wife, or failing to reduce his alimony payments by the amount received by Wife from the pension because his retirement was not foreseeable and Wife's income increased since the divorce; (2) finding Husband's pension was property instead of income replacement; and (3) awarding attorney's fees to Wife.  We affirm.[1]

1. We hold the family court did not abuse its discretion in declining to terminate Husband's alimony payments or failing to reduce his alimony payments by the amount received by Wife from the pension.  "The question of whether to increase or decrease alimony based on a finding of changed circumstances is a matter committed to the sound discretion of the family court."  Gartside v. Gartside, 383 S.C. 35, 42, 677 S.E.2d 621, 625 (Ct. App. 2009).  Here, Husband continued to earn more income than Wife even after he retired and also possessed close to $50,000 in various investments.  In comparison, Wife testified she would not be able to meet her current expenses without continued alimony payments from Husband, and her only source of income was from her current job.  Additionally, the payments to Wife from Husband's pension plan could not be considered in determining alimony modification because it was within the contemplation of the parties at the time of the divorce.  The original property settlement agreement specifically contemplated Husband's retirement at a future time and consequently addressed the division of Husband's pension plan between Husband and Wife.  See Serowski v. Serowski, 381 S.C. 306, 313, 672 S.E.2d 589, 593 (Ct. App. 2009) ("Changes in circumstances within the contemplation of the parties at the time the divorce was entered generally do not provide a basis for modifying alimony.").      

2. We hold the issue of whether Husband's pension was property instead of income replacement is not preserved for appellate review because the family court did not specifically rule on this issue in its final order and Husband did not file a Rule 59(e), SCRCP, motion.  See West v. Newberry Elec. Co-op., 357 S.C. 537, 543, 593 S.E.2d 500, 503 (Ct. App. 2004) (finding an issue was not preserved when it was not explicitly ruled on by the trial court in its final order and the appellant did not raise the issue in a Rule 59(e), SCRCP, motion to alter or amend the judgment).       

3. We hold the family court did not abuse its discretion in awarding attorney's fees to Wife because it properly considered all the relevant factors recited in Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) and E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).  See Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004) ("An award of attorney's fees rests within the sound discretion of the trial judge and should not be disturbed on appeal unless there is an abuse of discretion.").               

AFFIRMED.

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


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