Kennedy v. Kennedy

699 S.E.2d 184, 389 S.C. 494
CourtCourt of Appeals of South Carolina
DecidedJuly 21, 2010
Docket4713
StatusPublished
Cited by5 cases

This text of 699 S.E.2d 184 (Kennedy v. Kennedy) 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
Kennedy v. Kennedy, 699 S.E.2d 184, 389 S.C. 494 (S.C. Ct. App. 2010).

Opinion

389 S.C. 494 (2010)
699 S.E.2d 184

Kevin Patrick KENNEDY, Sr., Appellant,
v.
Dawn KENNEDY, Respondent.

No. 4713.

Court of Appeals of South Carolina.

Heard May 18, 2010.
Decided July 21, 2010.

*497 Kenneth Philip Shabel, of Spartanburg, for Appellant.

J. Edwin McDonnell, of Spartanburg, for Respondent.

WILLIAMS, J.

In this appeal, Kevin Kennedy (Husband) contends the family court erred (1) in awarding Dawn Kennedy (Wife) permanent periodic alimony; (2) in dividing the parties' marital debts; and (3) in denying Husband's request for attorneys' fees. We affirm.

FACTS

Husband and Wife married on July 28, 1990. They had one child, Luke Kennedy (Luke), during the course of their marriage, who was emancipated prior to the final hearing. The parties separated on November 28, 2006, when the police arrested Husband for criminal domestic violence for threatening to kill Wife. Husband filed for divorce on January 4, 2007, and Wife counterclaimed requesting a divorce on the grounds of physical cruelty and habitual drunkenness. Husband then amended his complaint, requesting a divorce on the grounds of adultery and seeking to bar Wife's claim for alimony. The family court subsequently allowed the parties to amend their pleadings to also request a divorce based on one-year's continuous separation.

At the final hearing on April 16, 2008, the family court received testimony from the parties and their witnesses regarding the discord in the parties' marriage; the allegations of substance abuse, physical abuse, and adultery; and the source of several debts acquired during the marriage, specifically *498 during the period of Husband's incarceration. In a separate order dated September 12, 2008, the family court granted the parties a divorce based on one-year's continuous separation. The family court ordered Husband to pay Wife $300 per month in alimony and divided the marital estate on a 50/50 basis with each party responsible for debt acquired in his or her name. The family court denied Husband's request for attorneys' fees, finding Wife did not have the financial ability to pay Husband's fees. This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this court has the authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact the family court had the opportunity to see the witnesses, hear "the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972) (internal quotations and citations omitted).

ISSUES ON APPEAL

Husband claims the family court erred on three grounds in its final order, namely the following: (1) its award of alimony to Wife; (2) its allocation of marital debt; and (3) its denial of attorneys' fees to Husband.

LAW/ANALYSIS

I. Alimony

Husband argues he presented clear evidence of Wife's adultery; thus, the family court erred in granting Wife alimony. Alternatively, if this court finds insufficient evidence exists to establish Wife's adultery, Husband contends the $300 alimony award is excessive in light of Husband's fixed income. We disagree.

*499 Proof of adultery must be "clear and positive and the infidelity must be established by a clear preponderance of the evidence." McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App.1987) (internal quotations and citations omitted). When the evidence is conflicting and susceptible of different inferences, the family court has the duty of determining not only the law of the case, but the facts as well, because it had the benefit of observing the witnesses and determining how much credence to give each witness's testimony. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985).

Husband contends the clear preponderance of the evidence establishes Wife committed adultery. He points to three witnesses who testified at the final hearing regarding Wife's alleged adulterous relationship with Adam Jackson (Jackson). Two of the witnesses, Brittney and Adam Clark, stated Wife told them about her extramarital relationship. Husband's son from a prior marriage, Kevin Kennedy, Jr. (Kevin Jr.) testified he was in the parties' home during Husband's incarceration when he heard "stuff going on in the bedroom" and knocked on the parties' bedroom door. When Wife opened the door in her bathrobe, Kevin Jr. said he saw her paramour, Jackson, under the covers in the parties' bed.

Conversely, Wife denied engaging in an extramarital relationship and claimed she had no personal interaction with Jackson whatsoever. The parties' son, Luke, also testified at the final hearing about the allegations of his mother's adultery. He stated he was in the home the night Kevin Jr. claimed he witnessed Wife cheating on Husband and testified that Jackson was never in the home as Kevin Jr. claimed. Additionally, Wife's best friend, Patricia Diaz, stated she and Wife shared many intimate secrets and details of their personal lives over the course of their friendship, and Wife never told her she was having an affair. After hearing this testimony at the final hearing, the family court determined Wife had not committed adultery.

Based on this conflicting testimony, we believe the family court was in the best position to judge the witnesses' credibility and veracity on the issue of adultery, and thus, we find the family court did not abuse its discretion in denying Husband's *500 request for a divorce on the grounds of adultery. See Cox v. Cox, 296 S.C. 414, 415, 373 S.E.2d 694, 694 (Ct.App.1988) (finding when there is conflicting evidence as to whether a party committed adultery, the appellate court should not disregard the findings of the family court who saw and heard the witnesses and was in a better position to evaluate the witnesses' testimony).

Turning to Husband's argument regarding the excessiveness of the alimony award, we find the $300 monthly alimony award to be reasonable.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dearybury v. Dearybury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002). In determining whether alimony is appropriate, we recognize "[t]he purpose of alimony is to provide the ex-spouse a substitute for the support which was incident to the former marital relationship." Love v. Love, 367 S.C. 493, 497, 626 S.E.2d 56, 58 (Ct.App.2006) (internal quotations and citations omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Jackson
Court of Appeals of South Carolina, 2020
Taylor v. Taylor
Court of Appeals of South Carolina, 2015
Crossland v. Crossland
759 S.E.2d 419 (Supreme Court of South Carolina, 2014)
Simcox-Adams v. Adams
758 S.E.2d 206 (Court of Appeals of South Carolina, 2014)
Altman v. Altman
Court of Appeals of South Carolina, 2013

Cite This Page — Counsel Stack

Bluebook (online)
699 S.E.2d 184, 389 S.C. 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-kennedy-scctapp-2010.