Wannamaker v. Wannamaker

719 S.E.2d 261, 395 S.C. 592, 2011 S.C. App. LEXIS 208
CourtCourt of Appeals of South Carolina
DecidedAugust 11, 2011
Docket4848
StatusPublished
Cited by1 cases

This text of 719 S.E.2d 261 (Wannamaker v. Wannamaker) 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
Wannamaker v. Wannamaker, 719 S.E.2d 261, 395 S.C. 592, 2011 S.C. App. LEXIS 208 (S.C. Ct. App. 2011).

Opinion

LOCKEMY, J.

In this domestic action, Preston D. Wannamaker (Husband) appeals the family court’s award of alimony to Katherine Thomas Wannamaker (Wife) and the court’s valuation of the *595 parties’ retirement accounts. We affirm in part and reverse in part.

FACTS

Husband and Wife were married in December 1991, and no children were born as a result of the marriage; however, Wife had two children from a previous marriage. During the first seven years of the parties’ marriage, Husband was the primary provider and earned approximately $30,000 per year. Wife did not work outside the home.

Subsequently, Husband lost his job, returned to school, and earned an undergraduate and two master’s degrees. After completing his education, Husband secured employment as an instructor at Midlands Technical College and earned approximately $60,000 per year between 2002 and 2006. When Husband lost his job, Wife secured employment with the State of South Carolina, earning approximately $30,000 per year. Wife’s income was the parties’ primary, but not the sole, means of support while Husband completed his education. Although Wife attended college in the mid-1970s, she never finished her undergraduate degree. The parties separated in January of 2006, and Husband initiated this action for divorce in March 2006.

In June 2006, the family court issued a temporary order providing: “In lieu of alimony to be paid [Wife], Husband is hereby ordered to continue paying $50.00 per month to the Department of Mental, Health” for drug abuse treatment for Wife’s son. The temporary order did not otherwise mandate alimony. Wife received the sole and exclusive use of the marital home, and Husband was ordered to pay the first mortgage, while Wife was ordered to pay the second mortgage.

After a final hearing, the family court issued a final decree of divorce declaring the parties divorced. The family court awarded Wife $500 per month in permanent periodic alimony beginning in May 2008. Although Husband presented expert testimony establishing the present day value of the parties’ accounts, the family court used the date of filing valuation. To effectuate a fifty-fifty equitable division of the marital estate, the family court awarded Wife $42,977 from Husband’s ac *596 count. Husband also received credit for all payments he made on the first mortgage pursuant to the temporary order.

Wife filed a 59(e), SCRCP, motion requesting the family court reconsider its decision to not award her attorney’s fees and credit her the payments she made on the second mortgage. Husband also filed a 59(e) motion maintaining the family court erred in awarding permanent periodic alimony and valuing the parties’ retirement accounts.

After a hearing, the family court amended the final decree of divorce. The amended order awarded Wife credit for the second mortgage payments she made pursuant to the temporary order. The family court also awarded Wife retroactive alimony and required Husband to pay Wife $500 for each month from the date of the temporary order through April 2008. 1 The order further provided the retroactive alimony payment was due upon the sale of the marital home and was to be deducted from Husband’s portion of the net proceeds from the sale. This appeal followed.

STANDARD OF REVIEW

“In appeals from the family court, this Court reviews factual and legal issues de novo.” Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). Accordingly, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 384, 392, 709 S.E.2d 650, 651, 655-56 (2011). However, we recognize that the family court is in a superior position to determine the credibility of the witnesses and the weight of the evidence. See id. at 392, 709 S.E.2d at 655-56. The burden is on the appellant to demonstrate the family court’s findings are against the preponderance of the evidence. Id.

LAW/ANALYSIS

I. Permanent Periodic Spousal Support

Husband argues the family court abused its discretion because it improperly weighed several factors in awarding Wife permanent periodic spousal support. We disagree.

Alimony is a substitute for the support normally incident to the marital relationship and should put the sup *597 ported spouse in the same position, or as near as is practicable to the same position, enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001). If an award of alimony is warranted, the family court has a duty to make an award that is fit, equitable, and just. Id. The family court may grant alimony in such amounts and for such a term as it considers appropriate under the circumstances. Davis v. Davis, 372 S.C. 64, 79, 641 S.E.2d 446, 454 (Ct.App.2006). The family court must consider the following factors: (1) duration of the marriage, (2) the physical and emotional health of the parties, (3) educational background of the parties, (4) employment history and earning potential of the parties, (5) standard of living during the marriage, (6) current and reasonably anticipated earnings of the parties, (7) current and reasonably anticipated expenses of the parties, (8) marital and nonmarital property of the parties, (9) custody of the children, (10) marital misconduct or fault, (11) tax consequences, (12) prior support obligations, and (13) any other factors the family court considers relevant. S.C.Code Ann. § 20-3-130(0 (Supp.2010). However, “[t]he family court is only required to consider relevant factors.” King v. King, 384 S.C. 134, 142, 681 S.E.2d 609, 613 (Ct.App.2009); see also Epperly v. Epperly, 312 S.C. 411, 415, 440 S.E.2d 884, 886 (1994) (remanding for consideration of all relevant factors in section 20-3-130(0).

Husband maintains the family court improperly weighed several factors in awarding Wife permanent periodic alimony. The record reflects the family court considered the relevant statutory factors, but it is difficult to determine how the family court applied those factors because the final decree of divorce merely lists the factors considered without making specific findings of fact and conclusions of law. When an order of the family court violates Rule 26(a), SCRFC, by failing to set forth specific findings of fact and conclusions of law, this court may remand the matter to the family court or make its own findings of fact in accordance with the preponderance of the evidence if the record is sufficient to allow such a review. Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526

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719 S.E.2d 261, 395 S.C. 592, 2011 S.C. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wannamaker-v-wannamaker-scctapp-2011.