Sweeney v. Sweeney

800 S.E.2d 148, 420 S.C. 69, 2017 WL 1293987, 2017 S.C. App. LEXIS 35
CourtCourt of Appeals of South Carolina
DecidedApril 5, 2017
DocketAppellate Case No. 2014-001850; Opinion No. 5479
StatusPublished
Cited by6 cases

This text of 800 S.E.2d 148 (Sweeney v. Sweeney) 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
Sweeney v. Sweeney, 800 S.E.2d 148, 420 S.C. 69, 2017 WL 1293987, 2017 S.C. App. LEXIS 35 (S.C. Ct. App. 2017).

Opinion

WILLIAMS, J.:

Mark M. Sweeney (Husband) appeals the family court’s final divorce decree, arguing the court erred in (1) awarding alimony to Irene M. Sweeney (Wife), (2) apportioning nonmar-ital property, (3) miscalculating the amount of rental proceeds he deposited in the parties’ joint account during the pendency of litigation, (4) holding him in contempt, and (5) awarding Wife attorney’s fees. Wife cross-appeals, asserting the family court erred in (1) failing to impute her income at the minimum wage, (2) awarding an insufficient amount of alimony, (3) overvaluing marital property, (4) crediting Husband for rental proceeds, and (5) failing to consider all of the necessary [75]*75factors in determining her attorney’s fees. We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

Husband and Wife were married on February 18, 1984. At that time, the couple lived in New Orleans, Louisiana, where Wife worked as a teacher and Husband was a graduate student at Tulane University. In early 1986, they relocated to Greenville, South Carolina, where Wife continued teaching and Husband began working at Fluor Daniel, a large construction firm. Husband subsequently took a job at the South Carolina Department of Commerce in 1990, but he returned to Fluor Daniel in 1996.

In 2000, Husband left Fluor Daniel to start a site selection consulting company named McCallum Sweeney Consulting (MSC), which eventually became successful. Husband and Wife soon amassed a large amount of investment assets, retirement accounts, and whole life insurance policies. By November 2013, Husband reported a gross monthly income of approximately $34,100.

During the marriage, the parties raised three children, all of whom are now emancipated. When their first two children were born in 1984 and 1990, Wife took approximately eight months off from teaching to stay at home. Wife, however, did not return to work after the youngest child was born in 1995. In addition to the marital home in Greenville, the parties purchased two homes in Columbia and Charleston, which were used by their eldest son and daughter when they attended college.

In mid-February 2012, Husband moved out of the marital home and into an apartment. On February 29, 2012, Husband filed an action in the family court, requesting a no-fault divorce, equitable distribution, and joint custody of the couple’s then sixteen-year-old child. Wife answered and counterclaimed, seeking a divorce on the ground of adultery, possession of the marital home, joint custody of the minor child, equitable distribution, alimony, and attorney’s fees.

On August 20, 2012, the family court issued a temporary order. In its order, the court incorporated the parties’ stipulation not to dispose of any marital property during the pen-dency of the action. Regarding contested issues, the court required Husband to pay $4,000 per month to Wife in tempo[76]*76rary support. Additionally, the court ordered that “[e]ach party ... be advanced $76,000.00 from the parties’ joint savings account (the Morgan Stanley account) to cover any expenses incurred up until the merits hearing, inclusive of attomey[’s] fees, expert fees[,] or investigative fees.” Husband was also to provide the court with an accounting of all rental income or refunds related to the Columbia and Charleston investment homes at the merits hearing.

On August 2, 2013, Wife petitioned the family court for a rule to show cause why Husband should not be held in contempt for removing $41,561.90 from the Morgan Stanley account from October 2012 to July 2013 in willful violation of the temporary order.1 Husband later admitted he withdrew the funds to pay for education and various expenses of the parties’ children.

The family court held a merits hearing concerning the divorce action over five days in 2013 and 2014. At trial, Husband stated he began having an affair with a woman from Illinois in April 2012, but only after he had separated from Wife. According to Husband, his relationship with Wife actually ended in 2007, but they continued living together in the marital home until their children were emancipated. In an earlier deposition, however, Husband admitted to visiting his paramour for about three years prior to his separation from Wife.

On July 22, 2014, the family court issued a final divorce decree, granting Wife a divorce on the ground of Husband’s adultery. In the final decree, the court divided the marital estate, apportioning 55% to Husband and 45% to Wife. The court awarded the marital home to Wife, while allocating the Columbia and Charleston properties to Husband. Additionally, the court apportioned a health savings account (HSA) established for the parties’ eldest son to Husband.

The court noted Wife reported $6,979 in post-separation monthly expenses on her financial declaration.2 Excluding [77]*77postage, parking, vacations, and individual retirement account (IRA) contributions, the court found Wife had approximately $5,500 in post-separation monthly expenses. After imputing an income of $1,500 per month to Wife, the court ordered Husband to pay $5,000 per month to Wife in permanent, periodic alimony.

With regard to Wife’s contempt petition, the family court found Husband in willful contempt of its temporary order for making unauthorized withdrawals from the Morgan Stanley account. The court required Husband to reimburse $30,591.29 to Wife—45% of the $72,480.65 that Husband withdrew from the account since the temporary order, with a $4,500 credit for rental proceeds from the Charleston home he deposited into the account. The court also required Husband to pay $3,310 in compensatory attorney’s fees to Wife relating to the contempt action.

Finally, the court awarded $15,000 in attorney’s fees and costs related to the divorce action to Wife. Husband and Wife each filed a motion to alter or amend judgment, and the family court denied the motions on August 13, 2014. This cross-appeal followed.

STANDARD OF REVIEW

In appeals from the family court, the appellate court reviews factual and legal findings de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). Although we have the authority to make our own findings of fact, “we recognize the superior position of the family court judge in making credibility determinations.” Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). Therefore, the appellant bears the burden of convincing this court that the family court committed error or the preponderance of evidence is against the court’s findings. Id.

LAW/ANALYSIS

I. Husband’s Appeal

On appeal, Husband argues the family court erred in (1) awarding alimony to Wife, (2) apportioning nonmarital property, (3) miscalculating the amount of rental proceeds he deposited in the Morgan Stanley account during the pendency of [78]*78litigation, (4) holding him in contempt, and (5) awarding Wife attorney’s fees. We address each argument in turn.

A. Alimony

Husband first argues the family court erred in awarding permanent, periodic alimony to Wife. We disagree.

“Permanent, periodic alimony is a substitute for support which is normally incidental to the marital relationship.” Butler v.

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Cite This Page — Counsel Stack

Bluebook (online)
800 S.E.2d 148, 420 S.C. 69, 2017 WL 1293987, 2017 S.C. App. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeney-v-sweeney-scctapp-2017.