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2011-UP-124 - Hicks v. Hicks

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

Jeanette J. Hicks, Respondent,

v.

Thomas L. Hicks, Appellant.


Appeal From York County
Robert E. Guess, Family Court Judge


Unpublished Opinion No.  2011-UP-124 
Submitted January 4, 2011 – Filed March 24, 2011


AFFIRMED


Thomas F. McDow and Erin U. Fitzpatrick, both of Rock Hill, for Appellant.

John Martin Foster and Michael Langford  Brown, Jr., both of Rock Hill, for Respondent.

PER CURIAM: In this divorce matter, Thomas L. Hicks (Husband) argues the family court (1) failed to make adequate findings of fact for effective appellate review and possible future actions for modification, (2) erred in awarding Jeanette L. Hicks (Wife) alimony of $1,270 per month, (3) erred in admitting testimony regarding certain medical bills and awarding Wife funds from the marital estate to pay them because she did not provide the bills in response to his discovery requests, and (4) erred in requiring him to pay one-half of the cost of preparing a qualified domestic relations order (QDRO).  We affirm.[1]

1. Husband first argues the family court's findings of fact in the appealed order were insufficient to enable effective appellate review and to provide an adequate baseline for comparison in the event of a future action for modification.  He further complains that although he raised this concern in a Rule 59 motion, the family court dismissed this motion summarily without oral argument or further briefing.  We find no merit to either of these arguments. 

The divorce decree includes findings that Husband was able-bodied and gainfully employed.  In the decree, the family court also stated his monthly income from his employment and his social security benefits.  The court further acknowledged Husband had health problems, but found these problems did not interfere with his employment.  In addition, the court noted the amount Wife was receiving in social security benefits and found she had health problems that prevented her from working.  We hold these findings of fact are sufficient for both effective appellate review and an adequate basis for comparison in the event that either party requests a modification due to change of circumstances. 

As to the family court's decision to dispense with both oral arguments and briefs before ruling on Husband's Rule 59 motion, we find no abuse of discretion.  See Pollard v. County of Florence, 314 S.C. 397, 402, 444 S.E.2d 534, 536 (Ct. App. 1994) (holding that even though the appellant did not style her motion as a brief, the circuit court did not abuse its discretion in denying the appellant's motion to alter or amend the judgment without first conducting a hearing).  Similar to the motion in Pollard, Husband's motion was seven single-spaced typewritten pages long, set forth arguments on the issues raised, and gave citations to legal authority; therefore, it was the functional equivalent of a brief, and we hold the family court was not required to hold oral argument or request additional written submissions before deciding the motion.

2. Regarding the alimony award, Husband argues the family court (1)  failed to make the necessary findings of fact required by statute, including his retirement, Wife's allegedly voluntary decision to retire, the parties' standard of living, potential rental income from Wife's nonmarital real property, and his health complaints; (2) in computing his gross monthly income, failed to give adequate attention to the fact that his work as a painter was conditioned on the weather and the possibility that illness and hospitalization could result in loss of income; (3) placed undue emphasis on his marital misconduct; and (4) should have applied some portion of Wife's retirement account to her support.  We find no abuse of discretion.  See Degenhart v. Buriss, 360 S.C. 497, 500, 360 S.E.2d 96, 97 (Ct. App. 2004) ("Questions concerning alimony rest within the sound discretion of the family court judge whose conclusion will not be disturbed absent a showing of abuse of discretion.").

As previously noted, the family court made adequate findings of fact about the parties' respective abilities to work.  To the extent the court's other findings of fact regarding the alimony award were deficient, we hold, as Husband himself concedes in his brief, the alimony award had adequate support in the record.  See Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991) (allowing the appellate court to make its own findings of fact if the record is sufficient even though the family court may have failed to set forth specific findings of fact and conclusions of law to support its decision). 

Although his ability to find painting jobs was at times dependent on the weather, Husband admitted he could work in inclement conditions if indoor work was available.  Moreover, it is apparent from the decree that the family court viewed Husband's adultery as a factor in only the divorce itself and Wife's entitlement to alimony but not in the specific amount of spousal support awarded.  The family court, in determining the amount of the award, considered the parties' incomes and expenses, their prior work histories, and wife's role as primary caretaker of the parties' three children.  It is also clear from the record that Wife's nonmarital real property has no sewer line or septic tank and, as the family court opined during the hearing, was unlikely to generate significant income without significant expense.  Finally, Husband made only a conclusory argument to support his assertion that the family court should have applied a portion of Wife's retirement account to her support; therefore, we hold he has abandoned this issue on appeal.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (deeming the appellant to have abandoned an issue because he failed to provide arguments or supporting authority for his assertion and stating "[m]ere allegations are not sufficient to demonstrate an abuse of discretion").

3. Husband next argues the family court erred in admitting testimony about certain medical bills, in failing to make sufficient findings about them, and in awarding Wife funds from the marital estate to pay them.  He claims he was unaware that the medical bills were an issue because they were never listed on Wife's financial declaration or provided to him during discovery.  Although Wife's attorney produced the bills during mediation, one of his objections to their admissibility was the very fact that they were communications during mediation and the agreement to mediate prohibited their introduction during the final hearing.  Finally, he asserts that the late disclosure of these bills—on the financial declaration Wife provided to the court the day of the final hearing—prevented him from asserting various defenses, including (1) that some of the bills were for expenses incurred by Wife after the date of filing of her divorce action, (2) that the statute of limitations may have expired on some of the expenses, and (3) that the medical providers may have been willing to compromise on some of the expenses for less than their face value.  We find no merit to any of these arguments.

We hold the very fact that Husband was made aware of these bills during the mediation is a valid factor to support a determination that the family court acted within its discretion in allowing evidence that these expenses were incurred during the marriage.  See  State v. Morris, 376 S.C. 189, 205, 656 S.E.2d 359, 368 (2008) ("The admission or exclusion of evidence is left to the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of discretion.") (quoted in  S.C. Dep't of Soc. Servs. v. Lisa C., 380 S.C. 406, 411, 669 S.E.2d 647, 650 (Ct. App. 2008)).  Furthermore, the Alternative Dispute Resolution Rules do not expressly restrict the admission of evidentiary material provided during mediation if that material was not created solely for the mediation.  See Rule 7(b)(3), ADR (authorizing a mediator to "define and describe" "[t]he inadmissibility of conduct and statements as evidence in any arbitral, judicial or other proceeding"); Rule 8(a), ADR ("Communications during a mediation settlement conference shall be confidential.") (emphasis added); Rule 8(a)(5), ADR (prohibiting the reliance on or introduction as evidence in any proceeding "[a]ll records, reports or other documents created solely for use in the mediation") (emphasis added).

We further reject Husband's arguments that he was unfairly deprived of the opportunity to assert certain defenses to having these expenses paid from marital funds because he did not receive adequate notice that Wife would make this request at trial.  The family court expressly found on the record that most if not all the bills were incurred before the parties separated, Wife testified that any medical expenses she incurred after the parties separated were not included among the bills she sought to have paid from marital funds, and Husband had the opportunity to cross-examine her on this point.  Although Husband's Rule 59 motion mentioned the possibility that some of the expenses could have been time-barred or subject to compromise by the providers, he did not raise these concerns at trial and has therefore not preserved them for appeal.  See Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.") (cited in C.A.H. v. L.H., 315 S.C. 389, 392, 434 S.E.2d 268, 270 (1993)).

Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (holding an objection must be sufficiently specific to inform the trial court of the point being urged by the objector).

4. Finally, Husband argues the family court erred in ordering the parties to split the cost of preparing the QDRO.  He argues (1) the responsibility for preparing a QDRO is traditionally delegated to the party who stands to benefit from the order and (2) the requirement that he pay one-half of the attorney's fees for preparing the QDRO is tantamount to an award of attorney's fees and thus contrary to the family court's ruling that the issue of attorney's fees would be held in abeyance.  Wife did not address these arguments in her brief; however, based on our review of the matter, we affirm the family court's mandate that the parties should share equally the costs of preparing the QDRO.  

"The 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).  Although the fees at issue here had not yet been incurred when the family court issued the appealed order, Husband in his brief acknowledges they are "an effective award of attorney's fees." 

In support of his position Husband argues: "The attorney for the alternate payee ordinarily prepares the QDRO."  This assertion, however, comes from a practitioner's manual[2] and merely reflects the practical reality that the party who stands to benefit from the QDRO has the greater incentive to avoid delay in the drafting and approval of the document.   Husband has not directed our attention to any authority indicating that an alternate payee can never recover attorney's fees incurred in preparing a QDRO from the opposing party or that it is an abuse of discretion for the family court to order a plan participant to share the costs of preparing a QDRO.

AFFIRMED.

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


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

[2]  The authority Husband cited was The Attorney's Handbook on Qualified Domestic Relations Orders by John H. Williamson (Argyle Publishing, 2nd Ed. 1997).