Thornton v. Thornton ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Michael P. Thornton, Respondent,
v.
Anita L. Thornton, Appellant.
Appellate Case No. 2016-001177
Appeal From Dorchester County
William J. Wylie, Jr., Family Court Judge
Opinion No. 5688
Heard October 1, 2018 – Filed October 23, 2019
AFFIRMED AS MODIFIED
Megan Catherine Hunt Dell, of Dell Family Law, P.C., of
Charleston; and Theresa Marie Wozniak Jenkins, of
Theresa Wozniak Jenkins, Attorney at Law, LLC, of
Charleston, both for Appellant.
Michael P. Thornton, of Ridgeville, pro se.
WILLIAMS, J.: In this domestic relations matter, Anita L. Thornton (Wife)
appeals the family court's final divorce decree, arguing the family court erred in (1)
identifying, valuing, and apportioning marital assets and debts; (2) miscalculating
Wife's child support obligation; (3) awarding primary custody of the parties' two
children to Michael P. Thornton (Husband); (4) failing to find Wife prejudiced by
a "structural" error related to a hearing on her petition to enforce visitation; (5)
relying too heavily on the guardian ad litem's (GAL) conclusions; (6) relying on
the forensic consultant, Dr. Marc Harari's conclusions, which were based on
information provided by the GAL; (7) granting Husband a divorce on the ground
of adultery; (8) failing to find a conflict of interest regarding a personal
relationship between Husband and an employee of the Dorchester County Clerk of
Court; and (9) requiring the parties to pay their own attorney's fees, requiring Wife
to pay a greater percentage of the GAL's fees and Dr. Harari's fees, and requiring
Wife to pay the private investigator's fees. We affirm as modified.1
FACTS/PROCEDURAL HISTORY
Husband and Wife married on November 16, 1996. The parties have two
emancipated children. In 2011, Husband introduced Wife to his co-worker,
Charles Stringfellow (Stringfellow). Stringfellow and his son spent significant
time with Husband, Wife, and the parties' children. Wife indicated Husband
encouraged her relationship with Stringfellow. Wife and Stringfellow began to
spend time alone together, and Wife talked with Stringfellow about the problems
she and Husband had in their relationship. In April or May 2012, Husband became
suspicious of Wife's activities after he witnessed Wife consistently coming home
late at night and discovered phone calls and text messages between Wife and
Stringfellow. When Husband confronted Wife, she denied engaging in an
extramarital affair. Husband hired Steven Russell, a private investigator, to follow
Wife and document her activities because Husband believed Stringfellow was
Wife's paramour. Russell observed Wife and Stringfellow at Stringfellow's
apartment on a number of occasions.
In August 2012, Husband filed for divorce on the ground of adultery. That action
was administratively dismissed, and Husband filed a new complaint on January 9,
2014, again seeking a fault-based divorce on the ground of adultery. Wife
answered and counterclaimed against Husband, seeking a divorce on the ground of
one year's continuous separation.
The family court held an eight-day final merits hearing over the course of three
months and subsequently issued a final order and decree of divorce (the Final
Order), granting Husband a divorce on the ground of Wife's adultery. The Final
Order awarded joint custody of the minor children to the parties with Husband as
the primary legal and physical custodian. The Final Order required Wife to pay
1
Appellant conceded at oral argument that the issues concerning equitable
distribution, grounds for divorce, and fees and costs are the only issues remaining
before this court due to the emancipation of the parties' children.
sixty-seven percent of the GAL's fees2 and sixty-seven percent of Dr. Harari's
fees.3 Wife was also required to reimburse Husband $3,770 for his private
investigator's fees. Each party was responsible for his or her own attorney's fees.
As to equitable distribution, the Final Order found Wife was entitled to one-half of
the value of Husband's 401K Account (the 401K Account) as of May 12, 2014
($56,040.69), which amounted to $28,020.35. The Final Order also required each
party to pay one-half of a $27,100 debt owed to the 401K Account (the Loan), so
the family court reduced Wife's portion of the 401K Account and awarded Wife
$14,470 from the 401K Account. The Final Order subsequently required Wife to
pay one-half of the $12,254.95 remaining balance of the Loan (the Remaining
Loan Balance). Each party was ordered to pay one-half of the outstanding debt
owed to Verizon Wireless (the Verizon Debt). Wife was awarded one-half of
Husband's pension plan (the Pension Plan) upon its vesting on June 8, 2016
($72,034.08), which amounted to $36,017.04. The Final Order required Husband
to pay Wife $6,623.95 for her equity in a Jayco Hornet Camper (the Camper).
With regards to the former marital home (the Home), both parties requested and
the family court ordered Husband to remove Wife's name from the mortgage,
refinance the Home within ninety days, and pay Wife one-half of the equity. Wife
filed a Rule 59(e), SCRCP, motion seeking reconsideration, which the family court
denied. This appeal followed.
ISSUES ON APPEAL
I. Did the family court err in identifying, valuing, and apportioning marital
assets and debts?
II. Did the family court err in granting a divorce to Husband on the ground of
adultery?
III. Did the family court err in requiring the parties to pay their own attorney's
fees, requiring Wife to bear a greater portion of the fees incurred by the
GAL and Dr. Harari, and requiring Wife to reimburse Husband for the
private investigator's fees?
2
The family court calculated sixty-seven percent of the GAL's fees to be
$13,531.63
3
The family court calculated sixty-seven percent of Dr. Harari's fees to be
$7,872.50.
STANDARD OF REVIEW
The appellate court reviews decisions of the family court de novo. Stoney v.
Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam). In a de novo
review, the appellate court is free to make its own findings of fact but must
remember the family court was in a better position to make credibility
determinations. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 651–52
(2011). "Consistent with this de novo review, the appellant retains the burden to
show that the family court's findings are not supported by a preponderance of the
evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers, 420 S.C.
411, 416, 803 S.E.2d 469, 471 (Ct. App. 2017). On the other hand, evidentiary and
procedural rulings of the family court are reviewed for an abuse of discretion.
Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2.
LAW/ANALYSIS
I. Equitable Distribution
Wife argues the family court erred in the equitable division of the Loan, the 401K
Account, the Camper, the Pension Plan, the Verizon Debt, and the Home.
"In reviewing a division of marital property, an appellate court looks to the overall
fairness of the apportionment." Brown v. Brown, 412 S.C. 225, 235, 771 S.E.2d
649, 655 (Ct. App. 2015). "Even if the family court commits error in distributing
marital property, that error will be deemed harmless if the overall distribution is
fair." Doe v. Doe, 370 S.C. 206, 213–14, 634 S.E.2d 51, 55 (Ct. App. 2006).
A. The Loan
Wife argues the family court erred in (1) finding the Loan was a marital debt and
(2) equitably apportioning the Loan. We affirm the family court's finding that the
Loan was a marital debt and the apportionment of the 401K Account, but we
modify the family court's apportionment of the Loan.
1. The Loan as Marital Property
"For purposes of equitable distribution, a 'marital debt' is a debt incurred for the
joint benefit of the parties regardless of whether the parties are legally liable or
whether one party is individually liable." Wooten v. Wooten, 364 S.C. 532, 546,
615 S.E.2d 98, 105 (2005). Subsection 20-3-620(B)(13) of the South Carolina
Code (2014) requires the family court to consider "existing debts incurred by the
parties or either of them during the course of the marriage" when equitably
apportioning the parties' marital property. Subsection 20-3-620(B)(13) "creates a
rebuttable presumption that a debt of either spouse incurred prior to the beginning
of marital litigation is a marital debt and must be factored in the totality of
equitable apportionment." Pruitt v. Pruitt, 389 S.C. 250, 264, 697 S.E.2d 702, 710
(Ct. App. 2010). "Therefore, when a debt is proven to have accrued before the
commencement of marital litigation, the burden of proving the debt is non-marital
rests on the party who makes such an assertion." Schultze v. Schultze, 403 S.C. 1,
8, 741 S.E.2d 593, 597 (Ct. App. 2013).
Husband testified that in May 2012 he obtained the Loan for $27,100 for marital
purposes. He admitted he did not tell Wife about the Loan. Husband presented
undisputed testimony that he used the Loan funds to pay various marital bills and
to repay loans from his parents that were obtained by Husband and Wife to pay
marital bills such as their mortgage payment. Husband asserted he made all of the
payments towards the Loan, and the current Loan balance is $12,254.95 (the
Remaining Loan Balance). Wife did not present any evidence regarding the nature
of the Loan or contradicting Husband's testimony about the use of its funds to rebut
the presumption that the Loan was a marital debt. See Pruitt, 389 S.C. at 264, 697
S.E.2d at 710 (finding subsection 20-3-620(B)(13) "creates a rebuttable
presumption that a debt of either spouse incurred prior to the beginning of marital
litigation is a marital debt and must be factored in to the totality of the equitable
apportionment"). We find Wife has failed to meet her burden of proving the Loan
is non-marital. See Schultze, 403 S.C. at 8, 741 S.E.2d at 597 ("[W]hen a debt is
proven to have accrued before the commencement of the marital litigation, the
burden of proving the debt is non-marital rests on the party who makes such an
assertion."). Therefore, we find the family court did not err in classifying the Loan
as a marital debt or in finding Husband and Wife are equally responsible for the
Loan.
2. Apportionment of the 401K Account and the Loan
The family court erred in reducing Wife's portion of the 401K Account by one-half
of the amount of the Loan while also requiring Wife to pay one-half of the
Remaining Loan Balance. Requiring Wife to pay one-half of the Remaining Loan
Balance while simultaneously reducing her portion of the 401K Account by half of
the Loan would result in overpayment by Wife. Thus, we modify the family
court's apportionment of the Remaining Loan Balance to make Husband
responsible for the entire Remaining Loan Balance. We affirm the family court's
apportionment of the 401K Account with Husband receiving $41,570.34 and Wife
receiving $14,470.35. This apportionment satisfies Wife's responsibility for
one-half of the Loan.
B. The Camper
Wife argues the family court erred in its valuation of the Camper. Specifically,
Wife argues it was an error of law for the family court to average the values for the
Camper assigned by Husband and Wife.
Wife testified the parties bought the Camper in 2007 or 2008 for $24,000. Wife
asserted the Camper had a current value of $16,955, and Husband testified the
Camper's current value was approximately $9,000 to $10,000. The parties did not
present an appraisal to the family court and failed to provide other credible
evidence of valuation. In the Final Order, the family court determined the
Camper's value was $13,247.90 by averaging the values provided by the parties
and awarding Wife $6,623.95, one-half of the value. We find the family court
erred in averaging the values provided by the parties to arrive at a value, but upon
our de novo review, we find the value of $13,247.90 is appropriate and within the
range of the evidence presented. See Ferguson v. Ferguson, 300 S.C. 1, 5, 386
S.E.2d 267, 269 (Ct. App. 1989) (finding it is inappropriate for the family court to
average the property values testified to by the parties to arrive at a value),
superseded by statute on other grounds, S.C. Code Ann. § 20-3-130(D) (2014), as
recognized by Gilfillin v. Gilfillin, 344 S.C. 407, 544 S.E.2d 829 (2001)); Pirri v.
Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (2006) ("A family court may accept
the valuation of one party over another, and the court's valuation of martial
property will be affirmed if it is within the range of evidence presented.").
Therefore, we find Wife is entitled to $6,623.95, one-half of the Camper's value.
C. The Pension Plan
Wife argues the family court erred in awarding her a specific, numerical amount of
the Pension Plan because the total value of the Pension Plan used by the family
court is not supported by the evidence. We agree.
A nonvested pension plan is subject to equitable distribution. Ball v. Ball, 314 S.C.
445, 447, 445 S.E.2d 449, 450 (1994). However, because "the distribution of the
other assets is not affected by the award of the nonvested pension plan, its exact
dollar value is not crucial." Id. at 447, 445 S.E.2d at 451. "Rather, the court must
only determine the portion of the plan to which the spouse is entitled." Id. at 447–
48, 445 S.E.2d at 451. While benefits do not have to be vested to be subject to
equitable division, "they are not marital property unless they are earned during the
marriage." Mullarkey v. Mullarkey, 397 S.C. 182, 189, 723 S.E.2d 249, 253 (Ct.
App. 2012); Shorb v. Shorb, 372 S.C. 623, 629, 643 S.E.2d 124, 127 (Ct. App.
2007) ("[T]his [c]ourt has consistently held that both vested and nonvested
retirement benefits are marital property if the benefits are acquired during the
marriage and before the date of filing."); S.C. Code Ann. § 20-3-630(A) (2014)
("[M]arital property . . . means all real and personal property which has been
acquired by the parties during the marriage and which is owned as of the date of
filing or commencement of the marital litigation."). This court has held when there
are successive actions, the date of filing or commencement of marital litigation that
should be used in determining whether property is marital "is triggered by the
'same litigation which brings about the equitable division.'" Chanko v. Chanko,
327 S.C. 636, 639–40, 490 S.E.2d 630, 632 (Ct. App. 1997) (quoting Shannon v.
Shannon, 301 S.C. 107, 112, 390 S.E.2d 380, 383 (Ct. App. 1990)); id. at 638–640,
490 S.E.2d at 631–32 (finding that the family court did not err in using the date of
the subsequent filing of an action for equitable division—instead of the date of a
previous action that was stricken for failure to timely prosecute— in determining
what constituted marital property).
At the hearing, Husband testified the Pension Plan did not vest until June 8, 2016,
and at that time, the lump sum value of the Pension Plan would be $72,034.08.
The family court awarded Wife one-half of that amount—$36,017.04—upon the
vesting of the Pension Plan. However, other documentation indicated different
lump sum values because the Pension Plan was not yet vested. We find the family
court erred in awarding Wife an exact dollar amount from the Pension Plan
because the value of the Pension Plan upon vesting was unknown. We modify the
family court's order to award Wife one-half of the Pension Plan accrued between
the date of the parties' marriage, November 16, 1996, and the date of the second
filing, January 9, 2014, as of the time the Pension Plan vests. See Shorb, 372 S.C.
at 629, 643 S.E.2d at 127 ("[N]onvested retirement benefits are marital property if
the benefits are acquired during the marriage and before the date of filing.");
Chanko, 327 S.C. at 339–40, 490 S.E.2d at 632 (finding that when determining if
property is marital the date of filing or the commencement of litigation from the
case that brings about the equitable division should be used by the family court).
D. The Verizon Debt and the Home
Wife argues the family court erred in finding the Verizon Debt was not a marital
debt and in failing to include an affirmative obligation for Husband to pay Wife
fifty percent of the equity in the Home. We find these arguments are without merit
because the Final Order divided the Verizon Debt as a marital debt and ordered
each party to pay fifty percent of the debt, and the Final Order required Husband to
pay Wife fifty percent of the equity in the Home within ninety days.
In considering the overall fairness of the equitable distribution—with the
aforementioned modifications—we find the overall equitable distribution is fair.
See Brown, 412 S.C. at 235, 771 S.E.2d at 655 ("In reviewing a division of marital
property, an appellate court looks to the overall fairness of the apportionment.").
II. Ground for Divorce
Wife argues the family court erred in granting Husband a divorce on the ground of
adultery because Husband failed to prove she possessed the inclination and
opportunity to commit adultery. We disagree.
"Proof of adultery as a ground for divorce must be 'clear and positive and the
infidelity must be established by a clear preponderance of the evidence.'" Brown v.
Brown, 379 S.C. 271, 277–78, 665 S.E.2d 174, 178 (Ct. App. 2008) (quoting
McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct. App. 1987)).
"Because of the 'clandestine nature' of adultery, obtaining evidence of the
commission of the act by the testimony of eyewitnesses is rarely possible, so direct
evidence is not necessary to establish the charge." Id. at 278, 665 S.E.2d at 178
(quoting Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88 (Ct. App. 1987)).
"[A]dultery may be proven by circumstantial evidence that establishes both a
disposition to commit the offense and the opportunity to do so." Brown, 379 S.C.
at 278, 665 S.E.2d at 178; see also Nemeth v. Nemeth, 325 S.C. 480, 484, 481
S.E.2d 181, 183 (Ct. App. 1997) ("Circumstantial evidence showing the
opportunity and inclination to commit adultery is sufficient to establish a prima
facie case." (emphasis omitted)). In general, this "proof must be sufficiently
definite to identify the time and place of the offense and the circumstances under
which it was committed." Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74
(Ct. App. 1985). "[H]owever, evidence placing a spouse and a third party together
on several occasions, without more, does not warrant a finding of adultery."
Gorecki v. Gorecki, 387 S.C. 626, 633, 693 S.E.2d 419, 422 (Ct. App. 2010).
Sexual intercourse is not required to establish adultery; sexual intimacy is
sufficient to support a finding of adultery. Nemeth, 235 S.C. at 486, 481 S.E.2d at
184.
We find the family court properly granted a divorce to Husband on the ground of
adultery because Husband presented clear and positive proof of Wife's infidelity.
See Brown, 379 S.C. at 277–88, 665 S.E.2d at 178. Husband testified he began to
suspect Wife was committing adultery when she began consistently coming home
late at night and he discovered Wife's late night and early morning phone calls and
text messages with Stringfellow. Russell, Husband's private investigator, testified
Wife went to Stringfellow's apartment at 8:48 P.M. on June 23, 2012, and remained
in the apartment behind closed doors until 1:20 A.M. on June 24, 2012. Around
1:00 A.M. the same night, Clayton, another private investigator, witnessed
Stringfellow walk Wife to her car and observed Wife and Stringfellow exchange a
kiss. Russell tracked Wife's car to Stringfellow's apartment complex again on June
26, 2012, and noted Wife and Stringfellow remained in Stringfellow's apartment
from 8:38 P.M. until 11:46 P.M. After Stringfellow's son discovered Russell's
surveillance that evening, Russell noted Wife and Stringfellow acted "consistent
with someone having been caught" when they exited Stringfellow's apartment.
Russell also noted Stringfellow had changed clothes and Wife appeared
disheveled. Finally, Russell testified that on another occasion during his
investigation he personally observed Wife and Stringfellow spend the night
together at Wife's mother's house.
Conversely, Wife testified that she and Stringfellow were friends and Husband
encouraged her to spend time with Stringfellow and to confide in Stringfellow
about issues in their marriage. She indicated she exercised with Stringfellow and
played tennis with Stringfellow and his son. Wife testified that during the six
months before the parties' separation, she began to disengage emotionally from her
relationship with Husband. Wife denied kissing Stringfellow before her separation
from Husband, and she averred that she did not begin a romantic relationship with
Stringfellow until January 2013, after Husband filed for divorce the first time.
We find this evidence establishes Wife's inclination and disposition to commit
adultery with Stringfellow and her opportunity to do so at Stringfellow's apartment
on June 23, 2012, and June 26, 2012. See Nemeth, 325 S.C. at 484, 481 S.E.2d at
183 ("Circumstantial evidence showing the opportunity and inclination to commit
adultery is sufficient to establish a prima facie case." (emphasis omitted)).
Therefore, we affirm the family court's grant of a divorce to Husband on the
ground of adultery.4
4
Because our finding that the family court properly granted Husband a divorce on
the ground of adultery is dispositive, we decline to address Wife's argument that
the family court erred in declining to consider an alternate ground for divorce
III. Fees and Costs
Wife argues the family court erred in requiring each party to pay his or her own
attorney's fees, failing to consider whether the GAL's fees were reasonable,
requiring Wife to pay a greater percentage of the GAL's fees and Dr. Harari's fees,
and requiring Wife to reimburse Husband for the fees incurred from his private
investigator. We disagree.
Section 20-3-130(H) of the South Carolina Code (2014) authorizes the family court
to order payment of litigation expenses such as attorney's fees, expert fees, and
investigation fees to either party in a divorce action. In determining whether to
award attorney's fees, the family court should consider the following factors: "(1)
the party's ability to pay his/her own attorney's fee; (2) [the] beneficial results
obtained by the attorney; (3) the parties' respective financial conditions; and (4)
[the] effect of the attorney's fee on each party's standard of living." E.D.M. v.
T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992). In awarding attorney's
fees, the family court must make specific findings of fact on the record for each of
the required factors. McKinney v. Pedery, 413 S.C. 475, 489, 776 S.E.2d 566, 574
(2015). "When a party's uncooperative conduct in discovery and litigation
increases the amount of the other party's fees and costs, the [family] court can use
this as an additional basis" in its decision of whether to award attorney's fees.
Bojilov v. Bojilov, 425 S.C. 161, 185, 819 S.E.2d 791, 804 (Ct. App. 2018). This
court has found the same equitable considerations that apply to attorney's fees also
apply to costs. Garris v. McDuffie, 288 S.C. 637, 644, 344 S.E.2d 186, 191 (Ct.
App. 1986).
because Husband could not demonstrate by a clear preponderance of the evidence
that she committed adultery prior to their separation. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding an appellate court need not address remaining issues on appeal when the
disposition of a prior issue is dispositive). Further, Wife's two remaining
arguments against a grant of divorce on the ground of adultery related to public
policy and the family court's ability to grant a divorce on the ground of one year's
continuous separation. However, Wife neither raised these arguments to the family
court at the hearing nor in her Rule 59(e), SCRCP, motion. Thus, we find these
arguments are not preserved for this court's review. See Doe v. Roe, 369 S.C. 351,
375–76, 631 S.E.2d 317, 330 ("An issue cannot be raised for the first time on
appeal, but must have been raised to and ruled upon by the trial judge to be
preserved for appellate review.")
A. Attorney's Fees
Wife argues the family court erred in requiring each party to pay his or her own
attorney's fees. We disagree.
Upon our de novo review, we find the evidence in the record supports the family
court's requirement that each party pay his or her own attorney's fees. Both parties
are employed, and while Husband has a higher monthly income than Wife, Wife
received a loan from Stringfellow to "pay all of her fees and expenses for this
litigation." Wife also received portions of the 401K Account, the Pension Plan, the
Camper, and the Home in the equitable apportionment of the parties' marital
property. Following the parties' separation, Husband paid for Wife's health
insurance, and he paid child support to Wife even though he had primary custody
of and was financially responsible for the parties' children. Requiring Husband to
pay Wife's attorney's fees would have been detrimental to the standard of living of
Husband and the parties' children. Additionally, Husband's attorney achieved more
beneficial results in the litigation. See E.D.M., 307 S.C. at 476–77, 415 S.E.2d at
816 (requiring a family court to consider the party's ability to pay his or her own
attorney's fees, the beneficial results obtained by the attorney, the parties'
respective financial conditions, and the effect of the attorney's fee on each party's
standard of living when determining whether to award attorney's fees).
Furthermore, Wife's filing of additional discovery motions and insisting on
pursuing custody despite the children's "unwavering desire" to live with Husband
led to additional costs in the action. See Bojilov, 425 S.C. at 185, 819 S.E.2d at
804 (noting the court may consider increases in a party's fees and costs caused by
the other party's uncooperative conduct in discovery and litigation when
determining whether to award attorney's fees); Bodkin v. Bodkin, 388 S.C. 203,
223, 694 S.E.2d 230, 241 (Ct. App. 2010) ("This court has previously held when
parties fail to cooperate and their behavior prolongs proceedings, this is a basis for
holding them responsible for attorney's fees."). Accordingly, we affirm the family
court's requirement that each party pay his or her own attorney's fees.
B. Reasonableness of the GAL Fees
Wife argues the family court erred in failing to consider whether the GAL's fees
were reasonable.
A court-appointed GAL "is entitled to reasonable compensation, subject to the
review and approval of the [family] court." S.C. Code Ann. § 63-3-850(B) (2010).
Subsection 63-3-850(B) requires the family court to consider the following factors
in determining the reasonableness of the GAL's fees and costs:
(1) the complexity of the issues before the court;
(2) the contentiousness of the litigation;
(3) the time expended by the guardian;
(4) the expenses reasonably incurred by the guardian;
(5) the financial ability of each party to pay fees and
costs; and
(6) any other factors the court considers necessary.
This court has held that "any other factors the court considers necessary" includes
the ultimate work product of the GAL and the completeness of his or her
investigation. Pirayesh v. Pirayesh, 359 S.C. 284, 297, 596 S.E.2d 505, 512–13
(Ct. App. 2004).5
The family court originally authorized the GAL to charge a reasonable fee not to
exceed $5,000 at an hourly rate of $150; however, the GAL requested and received
approval for multiple fee increases throughout the course of the litigation,6 and the
parties agreed to pay Dr. Harari's trial retainer from the GAL's account. At the
conclusion of the GAL's testimony, she indicated her fees totaled $20,196.63.
Wife admits the dispute was complex and contentious. See § 63-3-850(B)(1)–(2)
(requiring the family court to consider the complexity of the issues before the court
and the contentiousness of the litigation when determining the reasonableness of a
GAL's fees and costs). However, Wife argues the GAL expended an unreasonable
amount of time.
Upon a de novo review of the record, the GAL's invoices to the parties reveal a
thorough investigation and extensive involvement in this case. Her involvement
included drafting and submitting reports on her findings, reviewing documents,
interviewing eleven individuals, testifying during the eight-day hearing, paying Dr.
Harari's retainer from her fees after the parties agreed to do so, and responding to
Wife's subpoena for the GAL's entire file and all communications related to the
parties' children. Furthermore, the GAL's billing system applied a default hourly
rate lower than the authorized $150 to many of the charges, resulting in discounts
5
Pirayesh cites to section 20-7-1533 of the South Carolina Code (Supp. 2003).
359 S.C. at 297–98, 596 S.E.2d at 512–13. Section 63-3-850 was formerly cited as
section 20-7-1533.
6
Subsection 63-3-850(A) allows a GAL to exceed the fee initially authorized by
the judge if the GAL provides notice to both parties and obtains the judge's written
authorization.
to the parties, and the GAL credited any interest charges back to the parties.
Therefore, we find no excessive or unnecessary charges. See § 63-3-850(B)(3)–(4)
(requiring the family court to consider the time expended and the expenses
reasonably incurred by the GAL in determining the reasonableness of a GAL's fees
and costs). As noted in our discussion of the attorney's fees, both parties had the
ability to pay the fees. See § 63-3-850(B)(5) (requiring the family court to
consider the financial ability of each party to pay fees and costs in determining the
reasonableness of a GAL's fees and costs). Thus, we find the GAL's fees were
reasonable.
C. Apportionment of the GAL and Dr. Harari's Fees
Wife argues the family court erred in requiring her to pay the majority of the GAL
and Dr. Harari's fees. We disagree.
A de novo review of the record indicates Wife's conduct during the course of the
litigation warrants her being held responsible for a larger proportion of the fees.
Wife refused to comply with the GAL's requests for records and the GAL's request
that she submit to a test to detect alcohol consumption. Wife also insisted on
pursuing custody of the parties' sons despite (1) their "unwavering desire" to live
with Husband and (2) her estrangement from her sons. See Klein v. Barrett, 427
S.C. 74, 89, 828 S.E.2d 773, 781 (Ct. App. 2019) (affirming the family court's
finding that the wife should bear the majority of the fees and costs because she was
in a superior financial position and because "a significant portion of the GAL fee
was incurred solely as a result of [the wife's] continuously submitted documents
and correspondence and other communication to the GAL over the course of [the]
litigation"); see also Garris, 288 S.C. at 644, 344 S.E.2d at 191 (noting the same
equitable considerations that apply to attorney's fees also apply to costs); Bojilov,
425 S.C. at 185, 819 S.E.2d at 804 (noting that the court may consider increases in
a party's fees and costs caused by the other party's uncooperative conduct in
discovery and litigation when determining whether to award attorney's fees).
Accordingly, we affirm the family court's award and allocation of the GAL and Dr.
Harari's fees.
D. Private Investigator Fees
Wife argues the family court erred in requiring her to pay Husband's private
investigator fees. We disagree.
Because Husband provided sufficient evidence to obtain a divorce on the statutory
ground of adultery, we find the family court appropriately required Wife to
reimburse Husband for his private investigator fees. See S.C. Code Ann. §§
20-3-120 and 20-3-130 (2014) (authorizing the family court to order payment of
suit money to either party in a divorce); Ellerbe v. Ellerbe, 323 S.C. 283, 298, 473
S.E.2d 881, 889 (Ct. App. 1996) ("Reimbursable expenses include reasonable and
necessary expenses incurred in obtaining evidence of a spouse's infidelity."). Thus,
we affirm the family court on this issue.
CONCLUSION
Accordingly, the decision of the family court is
AFFIRMED AS MODIFIED.
HUFF and SHORT, JJ., concur.