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2011-UP-504 - Fekete v. Fekete

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


Karen Elisabeth Fekete, Respondent,

v.

Richard Fekete, Appellant.


Appeal From York County
Brian M. Gibbons, Family Court Judge


Unpublished Opinion No. 2011-UP-504
Heard October 3, 2011 – Filed November 15, 2011


AFFIRMED AS MODIFIED


James Wilson Tucker, Jr., of Rock Hill, for Appellant.

Christina C. Thompson, of Fort Mill, for Respondent.

PER CURIAM: On appeal from the family court, Richard Fekete (Father) challenges the amount of income the family court imputed to him and Karen Fekete (Mother) for the purpose of determining child support.  In addition, Father argues the family court erred by denying his request to use Worksheet C of the South Carolina Child Support Guidelines to calculate child support. 

1. We disagree with Father's claim that the family court erred in failing to impute to Mother an income comparable to that of her prior employment where she earned $55,000 per year.  Although unemployed at the final hearing, Mother testified she could potentially earn between $30,000 and $35,000 per year in a new career as a web designer.  The family court recognized Mother's uncontradicted testimony, but instead chose to impute $2,300 per month to Mother based on the difference between Mother's monthly expenses and her unemployment benefits.  We find Mother's potential income of $30,000 per year, or $2,500 per month, to be a more accurate reflection of her gross income for purposes of calculating child support.  See 27 S.C. Code Ann. Regs. 114-4720(A)(5) (Supp. 2010) ("If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent."); id. ("In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.").  Further, under our de novo standard of review, we find that considering the prevailing job opportunities and Mother's good faith efforts to seek employment, Mother's income should be based on her potential income rather than her past income.  See Gartside v. Gartside, 383 S.C. 35, 45-46, 677 S.E.2d 621, 626-27 (Ct. App. 2009) (finding it proper to impute income to husband based on current employment at lower salary as opposed to former higher-paying job when husband lost former job through no fault of his own); Mazzone v. Miles, 341 S.C. 203, 209, 532 S.E.2d 890, 893 (Ct. App. 2000) (finding it proper to impute minimum wage to father as opposed to his salary from his prior employment when father was terminated through no wrongdoing of his own and evidence demonstrated father made a good faith decision to pursue self-employment).  Accordingly, we modify the family court's imputation of income to Mother from $2,300 to $2,500.  Applying Worksheet A from the Guidelines, this modification results in a monthly child support award of $390.

2. Father also charges the family court with error in the amount of income it imputed to him for purposes of calculating child support.  We find no error in the family court's decision to impute income of $3,700 per month to Father.  Father's lack of candor regarding his finances and actual income required the family court to resort to other credible evidence, namely Father's stated expenses and Father's banking statements, to determine Father's gross income.  See 27 S.C. Code Ann. Regs. 114-4720(A)(6) (Supp. 2010) (stating the family court may resort to other suitable documentation of current earnings when the income reflected on a party's financial declaration may be at issue); see also Spreeuw v. Barker, 385 S.C. 45, 67, 682 S.E.2d 843, 854 (Ct. App. 2009) (finding testimony and evidence presented at trial demonstrated father understated his income, so that his financial declarations were not meaningful representations of his income, thus the family court properly resorted to father's tax returns and withdrawals from his business account when calculating father's gross income for purposes of child support).  Because Father admitted his expenses on his financial declaration were approximately $4,600 per month, it was reasonable for the family court to conclude Father had the ability to earn the difference between what he was drawing in disability and what he was incurring in expenses on a monthly basis.  We find Father hard pressed to complain of the outcome, particularly considering Father's admission at oral argument that he grossed approximately $3,300 per month[1] from his automobile repair shop, which when added to Father's monthly disability income of $879, demonstrate the family court was most generous in only imputing $3,700 per month to Father.  See Patrick v. Britt, 364 S.C. 508, 513, 613 S.E.2d 541, 543 (Ct. App. 2005) (finding family court properly imputed $100,000 as income to father when father admitted his business brought in over $430,000 in gross income but claimed he only earned $66 per month).  Accordingly, we affirm the family court's decision on this issue.

3. Last, Father argues the family court erroneously applied Worksheet A as opposed to Worksheet C from the South Carolina Child Support Guidelines in setting the parties' child support obligations, which resulted in Father paying a greater amount of child support than was warranted under the circumstances.  We disagree and find that despite the shared custody arrangement, the family court had the discretion to apply Worksheet A in setting child support, particularly when the family court's visitation arrangement narrowly exceeded the threshold requirement for shared custody.  See 27 S.C. Code Ann. Regs. 114-4730(A) (Supp. 2010) ("The shared custody adjustment, however, is advisory and not compulsory.  The court should consider each case individually before applying the adjustment to ensure that it does not produce a substantial negative effect on the child(ren)'s standard of living."); see generally Floyd v. Morgan, 383 S.C. 469, 476, 681 S.E.2d 570, 573 (2009) (finding that the family court has the "discretion to utilize any Worksheet [it] finds appropriate under the facts of the case" in an action to modify child support).  Mother was Child's primary custodian, and both parties agreed she paid almost all of Child's expenses, not only during the parties' marriage when Mother was employed, but after their separation when she was unemployed.  We find this is not a situation that involves the true sharing of expenses for Child.  Father submitted no proof that Mother's expenses would be diminished based on the visitation arrangement, and given the parties' prior history, we conclude utilization of Worksheet C would result in Mother assuming a disproportionate share of Child's expenses and would be detrimental to Child's standard of living.  Thus, we affirm the family court's decision on this issue.

AFFIRMED AS MODIFIED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


[1] When asked by the court at oral argument, counsel for Father stated he believed an accurate reflection of Father's income was $40,000 per year.