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2012-UP-329 - Bernson v. Bernson

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

Todd N. Bernson, Appellant/Respondent

v.

Sarah M. Bernson, Respondent/Appellant


Appeal From Greenville County
Letitia H. Verdin, Family Court Judge


Unpublished Opinion No.  2012-UP-329 
Heard April 10, 2012 – Filed May 30, 2012


AFFIRMED


J. Falkner Wilkes, for Appellant/Respondent.

David A. Wilson and Christine Marie Howard, of Greenville, for Respondent/Appellant.

PER CURIAM: This is a cross-appeal of a divorce and custody decree.  Todd N. Bernson (Husband) appeals the award of custody to Sarah M. Bernson (Wife), the visitation awarded to him, and the allocation of several debts to him.  Wife cross-appeals, arguing the family court erred in refusing to award her attorney's fees and costs and in finding she agreed not to relocate with the parties' child outside the State of South Carolina without Husband's consent.  We affirm.

1. Husband argued the family court erred in granting custody of the parties' child to Wife and insufficient visitation to him.  During oral argument before this court, however, his attorney stated that Husband's only dissatisfaction with the custody and visitation terms was the possibility that Wife could relocate with the child outside the State of South Carolina.  In any event, we hold the family court acted within its discretion in awarding custody to Wife and in setting the visitation terms.  See Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996) ("As with child custody, the issue of child visitation falls within the discretion of the trial judge, and his findings will not be disturbed absent an abuse of discretion."). 

The court acknowledged Wife's substance abuse problems, but also found she made commendable efforts to overcome them, as evidenced by drug tests showing she had been drug free for at least two years and her enrollment in a therapy and education program.  See Bramlett v. Davis, 289 S.C. 85, 87-88, 344 S.E.2d 867, 868-69 (Ct. App. 1986) (holding mother's seeking of successful treatment and counseling for her previous drug abuse problems was a change of circumstance supporting the transfer of custody from the child's paternal grandparents to her).  These findings were supported by the guardian ad litem and an employee at the facility where Wife sought treatment.  In addition, the record supports the family court's findings that Husband had not yet addressed issues raised in a mental health evaluation and that Wife was more likely than Husband to promote the child's relationship with the other party.  See Peeples v. Peeples, 270 S.C. 116, 117, 241 S.E.2d 159, 159 (1978) (noting the appellant's emotional instability as a factor supporting the custody award to the respondent).  As to Husband's complaint that the family court erroneously allowed him only "minimal visitation," we note Husband provided no argument or supporting legal authority.  Furthermore, he was granted four weeks of visitation in the summer, and the family court advised the parties they could agree on additional visitation beyond what the court specified in the divorce decree.

2. We decline to address Husband's argument that the family court should not have included as marital debts various expenses that Wife allegedly incurred as a result of her substance abuse problems and could have been set aside in a bankruptcy action.  The family court did not rule on the argument that the disputed debts could have been set aside in bankruptcy, and Husband did not raise this issue in his motion to alter or amend.  See Chastain v. Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) ("When an issue is raised to but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e) motion.").  As to Husband's contention that it was unfair to make him responsible for these debts because they resulted from Wife's misconduct, Husband did not present evidence linking the obligations to Wife's misuse of prescription drugs.  Furthermore, it was agreed during oral argument that regardless of their origin, the bills were marital debts.  Given these circumstances, we find no abuse of discretion by the family court in assigning Husband responsibility for these debts.  See Lewis v. Lewis, 392 S.C. 281, 284-85, 709 S.E.2d 650, 651 (2011) (stating an equitable division award should be reversed only when the appellant shows an abuse of discretion by the family court); Hardy v. Hardy, 311 S.C. 433, 437, 429 S.E.2d 811, 814 (Ct. App. 1993) ("[B]asically[,] the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts.").

3. Husband argues he should not have been ordered to pay a credit card debt owed to Rooms-To-Go for furniture that Wife sold while the case was pending in the family court, particularly in view of his allegations that Wife kept the sales proceeds and did not pay anything toward the debt.  Husband asserted during the trial that Wife admitted to him she sold the furniture.  Husband, however, was unable to direct this court to any such admission by Wife on the record or other evidence to document this assertion.  We therefore decline to find the family court committed reversible error in assigning responsibility for this debt to Husband.  See Patel v. Patel, 359 S.C. 515, 523, 599 S.E.2d 114, 118 (2004) (stating an appellate court's broad scope of review in a domestic relations matter "does not relieve the appealing party of the burden of showing the family court committed error").  

4. Wife contends the family court erred in denying her request for attorney's fees and costs, arguing the family court's analysis of the factors set forth in E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992), was flawed.  We disagree.  The family court acted within its discretion in denying both parties' requests for attorney's fees and costs.  See Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988) (stating the family court has the discretion to decide whether or not to grant a party's request for attorney's fees).  In its supplemental order, the family court stated it took into account the parties' ability to pay an attorney's fee award and determined that after including child support obligations and other financial responsibilities of the parties, they would have similar ability to pay their own attorney's fees and the guardian ad litem fees.  Although, as Wife argued in her brief, Husband may be in a better financial condition than she is, by her own admission she was voluntarily underemployed when the case went to trial.  The family court also considered that each party prevailed on some issues but not on others.  Although we may differ with the family court's consideration of the fact that Husband received temporary custody of the child, there appears to be no dispute that the custody issue was close and the change in custody between the temporary and final hearings attest to this point. 

5. Wife takes issue with a finding in the family court's supplemental order issued after the hearing on the parties' cross-motions to alter or amend that she agreed not to move the child out of state without Husband's consent.  Wife argues she only agreed to Husband's request that he be given sufficient advance notice of her intent to move if, in the future, she decided to relocate with the child.  Wife expressed concern that the finding in the supplemental order would prevent the family court from ever allowing her to relocate with the child unless Husband agreed to the move.  We find no error.  In the divorce decree, the family court an order prepared by Family Court Judge Alvin D. Johnson, with the exception that Husband would have four weeks of visitation in the summer instead of three weeks.  Among the terms in Judge Johnson's order is the provision that if the custodial parent moves greater than fifteen miles from the location at which the child is to be picked up for visits, she must still have the child at that location until written agreement for another location is obtained or the family court orders otherwise.  Under the terms of the divorce decree, as well as South Carolina law, Wife may, without Husband's consent, move with the child outside the State of South Carolina if she obtains an order from the family court allowing the relocation.  See S.C. Code Ann. § 63-3-530(A)(25) (2010) ("The family court has exclusive jurisdiction . . . to modify or vacate any order issued by the court.").   

AFFIRMED.

WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.