Sowell v. Sowell ( 2004 )

THIS OPINION HAS NOT PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

---

George A. Sowell, Appellant,

v.

Mayme Gust Sowell, Respondent.

---

Appeal From Horry County
H. T. Abbott, III, Family Court Judge

---

Unpublished Opinion No. 2004-UP-340
Submitted May 12, 2004 – Filed May 18, 2004

---

AFFIRMED

---

Robert Lucas Lumpkin, Jr., of Georgetown; Thomas M. Neal, III, of Columbia, for Appellant.

Deborah Harrison Sheffield, of Columbia, for Respondent.

PER CURIAM:  George A. Sowell (Husband) appeals from the family court judge’s modification of a spousal support award to Mayme Gust Sowell (Wife).  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Husband and Wife were divorced in September 1983, after 27 years of marriage. At the time of the divorce, Husband was 53 years old and employed as a physician, while Wife was 48 years old and unemployed.  After considering the various appropriate factors, the court ordered Husband to pay alimony to Wife in the amount of $3,000 per month.

Ten years later, in December 1993, Husband brought an action to reduce Wife’s alimony award.  On January 20, 1994, the parties entered into a consent order in which Wife’s alimony award would be reduced and the amount of the reduction held in abeyance pending her remarriage.  The amount held in abeyance was then to be paid to Wife when she remarried, at which time Husband’s alimony obligation would end.  Wife’s remarriage, however, did not occur.  Thereafter, in May 1994, Husband filed an amended complaint seeking a reduction, suspension or termination of the alimony payments based upon an alleged substantial change in the parties’ financial conditions.  A hearing was held on the matter in August 1996. At that time, Husband alleged he had diluted his income due to his advancing age and his inability to continue to work the number of hours he previously worked in his medical practice. He further alleged he had “reduced and plan[ned] to eliminate his obstetrical practice.”  On October 10, 1996, the family court judge issued an order maintaining the monthly $3000 alimony award.  The judge found Husband’s reduction in income was insufficient to warrant a reduction in alimony.  Specifically, he found the reduction in Husband’s income was contemplated by him inasmuch as Husband testified he anticipated reducing his hours as he approached retirement. The judge further found Husband anticipated use of his retirement funds to supplement his reduced income.  The family court judge found Husband’s reduction in income should have been anticipated by the parties at the time of the alimony award in 1983. 

In August 2001, Husband filed another action seeking a reduction in the $3,000 alimony award.  Husband sought this change in his support obligation based on both his reduction of income and Wife’s improved financial condition.  After a hearing, the family court judge issued an order reducing the alimony award from $3000 per month to $2000 per month.  The judge noted Husband’s net worth had decreased from $1,076,000 in 1996 to $925,000 in 2002, as he withdrew his retirement to supplement his income, while Wife’s net worth increased from $492,000 in 1996 to $865,000 in 2002. [1]   However, he determined Husband’s retirement was foreseeable and within the purview of the parties. On the other hand, he found fluctuations in the stock market were not anticipated, and Wife’s substantially changed financial condition resulting from fortuitous investments warranted a modification in alimony.  The judge found both parties were well represented and both had positions of merit.  He therefore denied attorney’s fees for either party.  The family court judge subsequently denied Husband’s motion to alter or amend the judgment. 

Husband appeals, arguing the family court judge erred in making certain findings concerning his financial condition, and in failing to further reduce or eliminate his alimony obligation.  He further asserts error in the denial of attorney’s fees.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find the facts in accordance with its own view of the preponderance of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).  This broad scope of review does not, however, require this court to disregard the findings of the family court.  Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002).  Rather, because the family court is in a superior position to judge the witnesses’ demeanor and veracity, its findings should be given broad discretion.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  

LAW/ANALYSIS

I. Modification of Alimony Award

Husband argues that, in determining the amount to reduce the alimony award, the family court judge committed reversible error in including the valuation of a life insurance policy as well as Husband’s current wife’s interest in their marital home in the value of Husband’s assets.  Husband also argues the family court judge erred in failing to either further reduce or terminate the alimony award.  We disagree.

          A.      Life insurance policy

Husband argues the family court judge erred in including the value of a life insurance policy in determining his assets.  Specifically, Husband argues the policy should not have been considered because it is the subject of an irrevocable trust and he has no access to the funds.

It is undisputed that in 1985, Husband placed certain life insurance policies in a trust for the benefit of his children.  In determining Husband’s net worth to have decreased from $1,076,000 in 1996 to $925,000 in 2002, the family court judge stated he included $80,000 for the cash value of life insurance in the $925,000 figure.  The judge recognized Husband testified “this money was placed into an Irrevocable Unfunded Life Insurance Trust for his children prior to the 1996 hearing to which he has no access to withdraw funds.”  However, the judge stated his inclusion of this policy was merely for comparison purposes, as Husband had included the value of this policy on his 1996 financial declaration. 

We find the family court judge properly considered the $80,000 cash value of the life insurance policy when determining Husband’s 2002 net worth inasmuch as Husband had included this figure on his 1996 financial declaration, even though he had transferred this policy to the trust prior to 1996.  Therefore, as stated by the judge in the final order, the inclusion of the cash value of the policy in the instant case was merely to compare Husband’s current financial situation with his 1996 finances.  The family court judge could not properly compare the change in Husband’s financial condition without including this same asset as listed on his 1996 financial declaration.

B.        Interest in marital home

Husband argues the family court judge erred in including the full value of his home, including his current wife’s one-half interest in the home, in determining his assets. 

In determining Husband’s current net worth, the family court judge considered Husband’s interest in his marital home to be 100 percent.  Akin to the situation with the life insurance policy, however, the judge stated the inclusion of the marital home in the calculation of Husband’s net worth was “solely for the purpose of comparison.” 

The record shows that in May 2001, Husband transferred a one-half interest in his home to his current wife.  Husband testified his wife did not pay him anything for this transfer of interest.  Similar to our findings regarding the inclusion of the life insurance policy when determining Husband’s current net worth, we find the family court judge properly considered the full value of Husband’s current marital home.  The full value of his home was listed on Husband’s 1996 financial declaration; thus the family court was within its discretion in taking into account the full value of the home in determining whether there was a change in circumstances.  This is especially true as the family court judge noted he included the home “solely for the purpose of comparison.” [2]

          C.      Further reduction or termination of alimony

Husband also argues the family court judge erred in failing to further reduce or terminate Wife’s alimony award.  He contends Wife no longer has a need, or at least not a significant need, for alimony, and he is no longer in a position to pay it. [3]

An award of periodic alimony may be modified based on a change of circumstances pursuant to S.C. Code Ann. § 20-3-170 (1985). In order to justify modification or termination of an alimony award, the changes in circumstances must be substantial or material. Eubank v. Eubank, 347 S.C. 367, 372, 555 S.E.2d 413, 416 (Ct. App. 2001) (citing Thornton v. Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997)).  Further, the change in circumstances must be unanticipated.  Kelley v. Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729 (Ct. App. 1996).  Several considerations relevant to the initial setting of an alimony award may be applied in the modification context as well, including the parties’ standard of living during the marriage, each party’s earning capacity, and the supporting spouse’s ability to continue to support the other spouse.  Id.  The modification of alimony is within the sound discretion of the family court and will not be overturned absent an abuse of that discretion.  Riggs v. Riggs, 353 S.C. 230, 236, 578 S.E.2d 3, 6 (2003).

We find a further reduction or outright termination of Husband’s alimony obligation is not warranted in this case.  Though Husband argues his circumstances have changed and his net worth has decreased since his retirement, we note the 1996 order clearly found Husband anticipated use of his retirement funds to supplement his reduced income, and Husband’s reduction in income should have been anticipated by the parties at the time of the alimony award in 1983.  Further, Husband testified that at the time of the 1996 action he anticipated a reduction in hours he worked as he approached retirement and he planned to eliminate his obstetrical practice, at which time he would have to use his retirement funds to supplement his income. He further admitted that at the 1996 hearing, as well as the 1983 hearing, he knew he would have to invade his retirement funds at some point and that his “game plan” all along was to use these funds upon retirement.  Thus, the record supports the family court judge’s finding in this matter that Husband’s retirement was contemplated by the parties. 

Further, we find the family court judge’s modification of the alimony award from $3000 to $2000 in the instant case was more than reasonable.  Wife’s 2002 financial declaration showed a monthly income, including the $3,000 in alimony, of $3,251 after taxes. She listed total monthly expenses of $2,914.  Thus, with a $1,000 reduction in alimony Wife should have a net income somewhat less or almost in line with her expenses.  Husband, on the other hand showed a net monthly income of $5,735 in 2002, and expenses of $6,764, including his $3,000 monthly alimony payments to Wife.  With a decrease by $1,000 in his monthly alimony payments, Husband likewise should be able to meet his monthly expenses.   This court is not unmindful of Husband’s complaint that he is having to withdraw from his retirement to achieve his income stream, however, the modification as ordered by the family court judge will not require Wife to deplete her assets so Husband will not have to reduce his own, a measure clearly contemplated by the parties and the court.  We find the reduction in alimony as ordered by the court provides Husband some relief, without serving as a disincentive to Wife from saving and investing her money.  Accordingly, we find no error in the family court judge’s determination to reduce Husband’s monthly alimony obligation from $3000 to $2000.

II. Attorney’s Fees

Husband argues the family court judge erred in failing to award him attorney’s fees.  We disagree.

In determining whether to award attorney’s fees, the family court should consider the following factors: (1) the party’s ability to pay his or her own 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). The decision of whether to award attorney’s fees is in the discretion of the trial court, which will not be overturned absent an abuse of that discretion. Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).

The fact that Husband’s attorney obtained a beneficial result in the form of a reduction in monthly alimony payments does not require an award of attorney’s fees in this case.  Wife was also benefited by the representation from her attorney in that she did not suffer the extent of a decrease in alimony sought by Husband.  Further, as the family court judge found Husband’s net worth was $925,000, Husband still has the ability to pay his own fees. Finally, there is no evidence his financial condition has deteriorated to the point that paying his attorney’s fees would be a hardship or that it would detrimentally impact his standard of living. [4]   We find the judge acted within his discretion in deciding not to award attorney’s fees because “both parties were well represented and the relative positions both [had] merit.”  Accordingly, we find the family court judge did not err in declining to award attorney’s fees to Husband.

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.

---

[1] The parties agreed at the outset of the hearing in this matter that Husband was alleging a change of circumstances since the 1996 order, and therefore the court would consider events occurring after the 1996 order in determining whether there was a substantial change in circumstances warranting modification. 

[2] Furthermore, we consider Husband’s argument that the court should not have included in Husband’s assets the transferred one-half interest in the marital home to his current wife, which occurred only four months prior to the institution of this action, to be without merit. Husband testified he gratuitously transferred the interest to his current wife for no consideration.  While Husband was clearly entitled to make such a transfer, the family court judge properly considered this voluntary transfer in determining Husband’s net assets.

[3] We note Husband only sought a reduction of alimony in his complaint, not a termination of alimony.  Further, there is no indication in the record before us that Husband argued to the family court that he was entitled to a termination of this support obligation.

[4] Husband has provided no evidence of the amount of his attorney’s fees.