Holmes v. Holmes

732 S.E.2d 213, 399 S.C. 499, 2012 S.C. App. LEXIS 230
CourtCourt of Appeals of South Carolina
DecidedAugust 15, 2012
DocketAppellate Case No.2011-191470; No. 5023
StatusPublished
Cited by18 cases

This text of 732 S.E.2d 213 (Holmes v. Holmes) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holmes v. Holmes, 732 S.E.2d 213, 399 S.C. 499, 2012 S.C. App. LEXIS 230 (S.C. Ct. App. 2012).

Opinion

LOCKEMY, J.

In this appeal from the family court, Robin Holmes (Husband) appeals the family court order requiring he pay Rita Kay Holmes (Wife) $600 per month in alimony. We affirm as modified.

FACTS/PROCEDXJRAL BACKGROUND

Husband and Wife.were married in 1978 and had two children. The parties separated in 2006, and on October 5, 2007, the family court found Wife was entitled to a divorce from Husband based on one year’s continuous separation. The divorce decree incorporated a November 2006 settlement agreement entered into by the parties, which addressed child custody, child support, division of property, and alimony. Pursuant to the settlement agreement, the parties agreed to joint custody of their one minor child, with Wife as the primary custodian.1 At the time of the settlement, Husband’s income was $72,000 per year, and he received a $16,500 bonus.2 Wife’s annual income was $34,000. Based upon these figures, Husband agreed to pay Wife alimony in the amount of $600 per month plus 20% of his gross annual bonus.3 Additionally, Husband agreed to pay Wife $400 per month in child support.

In May 2009, Husband lost his job with Milliken & Company through no fault of his own after his position was eliminated. On March 4, 2010, Husband filed a complaint seeking a [503]*503termination or reduction in his alimony payment, as well as discovery and attorney’s fees.4 Wife subsequently filed an answer and counterclaim denying Husband’s request for termination or reduction in alimony, agreeing to discovery, and denying Husband’s request for attorney’s fees. The family court issued a temporary order on April 1, 2010, reducing Husband’s alimony payment from $600 per month to $150 per month. The family court also required Husband to continue to pay Wife 20% of any bonuses he received. Husband held several jobs between August 2009 and October 2010, and has been employed by American Credit Acceptance since November 2010.

The parties submitted updated financial declarations during a final hearing before the family court in February 2011. In the declarations, Husband reported a gross monthly income of $3,4185 ($41,016 per year), and Wife reported a gross monthly income of $3,5086 ($42,096 per year). In an April 1, 2011 final order, the family court reinstated Husband’s $600 per month alimony payment, but removed the requirement that Husband pay Wife 20% of his gross bonuses each year. The family court found that at the time of the divorce decree, Husband’s child support and alimony obligations equaled 16.7% of his gross income, excluding bonuses. The court further found, based on Husband’s current gross monthly income, a $600 monthly alimony payment would constitute 17.6% of Husband’s gross income. The court noted this was an increase of 0.9%. If the January 2011 bonus was not included in Husband’s income, the family court found a $600 monthly payment would constitute 19.6% of Husband’s gross income. The court noted this was an increase of 2.9%. Based on the above calculations, the family court held these increases were not substantial and Husband should be required to pay Wife $600 per month in alimony. The family court further found Husband failed to show he was unable to pay Wife $600 per [504]*504month. Husband subsequently filed a Rule 59(e), SCRCP, motion to reconsider arguing a $600 per month alimony payment would create an undue hardship. The family court denied Husband’s motion, and this appeal followed.

STANDARD OF REVIEW

“The family court is a court of equity.” Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the appellate court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). “De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the [family] court’s findings.” Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55. However, this broad standard of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of demonstrating error in the family court’s findings of fact. Id. at 387-88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the family court in an equity case unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by this court. See Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55.

LAW/ANALYSIS

Husband argues the family court erred in requiring him to pay Wife $600 per month in alimony. We agree in part.

Generally, the purpose of alimony is to place the supported spouse, to the extent possible, in the position she enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001). However, upon a change in circumstances, the family court may modify an alimony obligation. See Miles v. Miles, 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct.App.2003). Section 20-3-170 of the South Carolina Code provides in pertinent part as follows:

Whenever any husband or wife, pursuant to a judgment of divorce from the bonds of matrimony, has been required to [505]*505make his or her spouse any periodic payments of alimony and the circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments and the court, after giving both parties an opportunity to be heard and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the supporting spouse, decreasing or increasing or confirming the amount of alimony provided for in such original judgment or terminating such payments.

S.C.Code Ann. § 20-3-170 (1985). Changes in circumstances must be substantial or material to justify modification or termination of an alimony award. Miles, 355 S.C. at 519, 586 S.E.2d at 140. Moreover, the change in circumstances must be unanticipated. Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct.App.2004). “The party seeking modification has the burden to show by a preponderance of the evidence that the unforeseen change has occurred.” Kelley v. Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729 (Ct.App.1996).

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Cite This Page — Counsel Stack

Bluebook (online)
732 S.E.2d 213, 399 S.C. 499, 2012 S.C. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-holmes-scctapp-2012.