Hayduk v. Hayduk

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Matthew J. Hayduk, Appellant,
v.
Emily Rudisill Hayduk, Respondent.
Appellate Case No. 2018-001833
Appeal From Greenville County
Tarita A. Dunbar, Family Court Judge
Opinion No. 5889
Heard June 16, 2021 – Filed January 12, 2022
AFFIRMED
David Alan Wilson, of Wilson & Englebardt, LLC, of
Greenville, for Appellant.
J. Falkner Wilkes, of Greenville, for Respondent.
LOCKEMY, A.J.: Matthew Hayduk (Husband) appeals the family court's order
dismissing his action for divorce based on his failure to meet the residency
requirements of section 20-3-30 of the South Carolina Code (2014) and awarding
attorney's fees to Emily Hayduk (Wife). We affirm.
FACTS
Husband and Wife married in Maine on June 25, 2011. They had two children:
Child 1, born in August 2011 and Child 2, born in October 2014 (collectively,
Children). On June 23, 2017, Husband filed a complaint for divorce on grounds of
adultery and sought separate support and maintenance, child support, child
custody, and visitation. He alleged he and Wife separated on September 10, 2016.
In addition, Husband asserted he was a resident of Greenville County, South
Carolina.1
After Wife failed to answer, Husband filed an affidavit of default on August 2,
2017; however, the record does not indicate an entry of default. On August 7,
2017, Wife moved to dismiss Husband's complaint for lack of personal
jurisdiction. Wife argued Husband failed to meet the residency requirements of
section 20-3-30 and the court lacked jurisdiction of the issues pertaining to
Children under section 63-15-330 of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA).2 The family court held a hearing on April 3, 2018,
and April 13, 2018, to address these jurisdictional issues. At the outset, Wife
conceded Husband served her in South Carolina.
From the time the couple married in June 2011 until early 2014, they lived with
Wife's parents—the Rudisills—in Eden, North Carolina. For a short period from
early to late 2014, Wife, Husband, and Child 1 lived in a home on East Meadow
Road in Eden; Wife's friend had inherited the home and allowed them to live there
rent-free provided they paid the taxes and maintained the property. However, Wife
and Husband had to move out sooner than expected when the homeowner decided
to rent to a paying tenant instead. At that point, they moved back in with the
Rudisills.
Wife explained that in 2011, while she was pregnant with Child 1, she and
Husband began looking at homes in Eden and planned to purchase one. Wife
stated she and Husband found a home on Center Church Road in Eden and made
an arrangement with the homeowner that if they paid the back taxes, the home
would belong to them. She stated they obtained an ownership interest in the home
when they paid the back taxes in cash at the Rockingham County Courthouse in
2011 and the owner of record allowed them to renovate and live in the property;
however, Wife acknowledged this interest was not recorded. Wife explained the
home needed renovation to make it "livable," and the renovation process took
longer than expected.
1
Wife filed a separate action in North Carolina on July 7, 2017, seeking
emergency ex parte custody of Children.
2
See generally S.C. Code Ann. §§ 63-15-300 to -394 (2010). Section 63-15-330
sets forth the circumstances under which a South Carolina family court has
jurisdiction in a child custody proceeding.
Child 2 was born in October 2014. Wife explained that in December of 2014, she,
Husband and Children traveled to South Carolina to visit Husband's parents at their
home on Ansley Court in Greer and they stayed there until the spring of 2015.
They then returned to Eden and moved into the home on Center Church Road.
Wife explained that although the home needed more work, enough had been done
to make the home habitable. She testified they moved all of their belongings and
furniture into the house on Center Church Road, the four of them stayed there
regularly, and Husband kept all of his vehicles there.
Wife testified Husband's mother eventually came to own the home and deeded the
home to Wife on October 5, 2015. Wife acknowledged, however, that there was
no recorded deed showing this. Wife stated that when they originally acquired the
Center Church Road home, her understanding was that she, Husband, and Child 1
would live there "for a couple [of] years, flip and sell [it] and move closer to
Greensboro." Wife explained Greensboro was about a forty-five-minute drive
from Eden. She stated she and Husband "had always talked about wanting to be
closer to Greensboro" because it was a larger city, was where Children went to
school, and where Husband would have to fly out of for his work with Delta.
Wife testified she enrolled Child 1 in preschool in Eden for the 2015–2016 school
year. During the summer of 2016, Wife went to training in Charlotte for a
Montessori teaching position and continued to live at the Center Church Road
home. Wife began teaching at the Greensboro Montessori School in the fall of
2016 and Children were both enrolled there. Wife testified she and Husband
separated in September 2016 and she moved all of her things out of the home and
moved back to the Rudisills' with Children. She stated all of Husband's belongings
were still in the home after she moved out and that Husband's visitation with
Children always occurred at the home on Center Church Road. She averred
Husband gave her no indication that his home was actually not with Wife but with
his parents in South Carolina.
Wife testified that through 2016, she and Husband were heavily involved in
Rockingham County politics. She stated Husband encouraged her to run for the
Rockingham County School Board in 2014. Wife testified Husband was on a
committee for the Rockingham County Republican Party and accompanied her to
all of the Republican Party events in Rockingham County. She stated he donated
to the campaigns of several North Carolina politicians and was "extremely
involved in Rockingham County and North Carolina politics."
Regarding Wife's tax returns, she testified Husband controlled their financial life
and she was "not privy to any kind of tax returns, other than the ones that he filed
for [her] when [she] was working in Eden." She stated those were North Carolina
tax returns. Wife acknowledged she signed a South Carolina tax return for
Children after she and Husband separated, but she stated he told her to sign it and
she felt she had no choice but to do so.
Rinda Rudisill, Wife's mother, testified that from June 2011 until 2014 Wife,
Husband, and Child 1 lived at the Rudisills' home in Eden, North Carolina.
Rudisill testified that in December of 2014, Wife, Husband, and Children left to
visit his parents in South Carolina for Christmas. According to Rudisill, they
extended their stay in Greer because Husband "got mad at" Wife's father and they
did not return until about June of 2015. She testified that when they left, they took
only suitcases with what they would need for the trip and nothing indicated they
were leaving for a long time. Rudisill stated Wife's father replaced the wiring and
plumbing in the Center Church Road home and Wife, Husband, and Children
moved into the home when they returned to Eden. Rudisill averred Wife and
Husband's long-term plan was to stay at that home. Rudisill testified Husband
never gave her the impression he considered the Center Church Road home to be
his second home. She recalled Wife, Husband, and Children lived at the home
until September 2016 when Wife and Children moved back with the Rudisills.
Additionally, Mary Tabor, a friend of Husband and Wife, testified she met
Husband and Wife in Eden in 2014 and that Husband regularly attended political
events in Rockingham County in Eden. Tabor recalled that when she visited the
Center Church Road home in May 2016 and in the fall of 2016, Husband was
present and appeared to be living there.
Husband testified his "flag was planted" in Greenville, South Carolina in 2011 and
had never moved from there. Husband testified that he had always considered his
parent's home on Ansley Court in Greer, South Carolina, to be his permanent
residence. He stated he and Wife intended to "end up back in Greenville" until
they found a place to put their "flagpole." Husband noted Wife's military ID card
and DEERS enrollment listed the Ansley Court home as her address. He stated the
last time he, Wife, and Children were together in South Carolina was in August
2015 for a family vacation in Edisto.
Husband testified he had worked as an airline pilot for Endeavor Air, a Delta
Airlines subsidiary, since November 2015. Husband explained his crew was based
in LaGuardia in New York City and he commuted by traveling from the airport of
his choosing. Husband testified he was also a commissioned officer in the United
States Army Corps of Engineers. He stated he joined the Army in September 1999
and never had a break in service but, at times, he was on inactive reserve status.
Husband was on inactive reserve status at the time of the hearing, and his unit
assignment was in Pennsylvania. Husband testified that during his marriage, he
had two long tour assignments and several shorter tours of forty-five days or less.
From June of 2012 to August of 2013, Husband was stationed in Enid, Oklahoma,
and from May of 2016 until November of 2016, he was stationed in Harrisburg,
Pennsylvania. Prior to leaving for training in Oklahoma, Husband was staying
with Wife at the Rudisills' home in Eden. Husband stated that after completing
training in Oklahoma, he "bounced back and forth" between the Rudisills' and his
home unit in Pittsburgh. Husband stated he was fully released from active duty in
December of 2013, at which point he returned to Eden with Wife and Child 1, and
began looking for work. He explained he took security assignments and instructor
positions during that time.
In June or July of 2015, Husband was notified that he was to be placed on active
military duty and deployed to the Republic of Kosovo in January of 2016;
however, the deployment never took place. In August 2015, Husband accepted a
job with Delta and received orders from the U.S. Army National Guard unit in
Pennsylvania. He stated he spent some days of the week flying for Delta and some
days working for the Army. Husband testified that during this time, Wife and
Children lived with the Rudisills in Eden. Husband agreed he supported Wife
when she ran for the school board, and he admitted he contributed funds to the
campaign of a North Carolina congressional representative.
When asked whether he lived at the Center Church Road home, Husband stated he
never disputed he "laid his head there." He testified his mother purchased the
Center Church road home in 2012 or 2013 because the investment required to pay
the back taxes on the home was more than he had available. He stated his mother
still owned the home and he still had personal items there. However, he denied
owning an interest in the property.
The family court admitted a copy of two Rockingham County voter profiles in
Husband's name. The first document reflected a "register date" of March 12, 2012,
and showed the East Meadow Road address in Eden, North Carolina; the second
reflected a register date of October 12, 2016, and listed the Center Church Road
address in Eden, North Carolina as his home. This voting record showed Husband
voted in the primaries and general elections in 2012 and 2014 and in the general
election in 2016 in Eden, North Carolina. Husband stated he did not recall voting
in the 2012 and 2016 general elections in Eden. A copy of a "request to cancel
voter registration" was included with the exhibit, and the reason selected on the
form was "I no longer live in North Carolina." This request showed a filing date of
May 8, 2017.
The family court issued an order dismissing the complaint, finding Husband failed
to show he resided in South Carolina for at least one year prior to filing the divorce
action. The family court characterized the issue as a question of personal
jurisdiction in its order and concluded it "d[id] not have jurisdiction over the
parties in this action" pursuant to section 20-3-30. The family court noted,
"Husband was argumentative during cross-examination, which caused the [c]ourt
to doubt [his] credibility," and "evasive" when answering questions about the home
on Center Church Road and the date of the parties' separation. The family court
further opined that although Husband seemed able to recall "intricate details of his
life and employment," when questioned about his voting record, he could not
recall. The family court found "the testimony and evidence presented by Wife
indicate[d] both parties intended for North Carolina to be their marital home" and
found "Wife's testimony more credible than Husband's in regard to intent of
domicile." The court found Husband "intended to come back home and lay his
head down with his wife and children, not his parents, when he was not deployed."
In addition, the family court concluded Husband's voting records provided "clear
evidence" that he considered North Carolina his domicile until May 2017. The
family court determined Wife was entitled to attorney's fees and costs in the
requested amount of $7,241.04. Finally, the family court concluded it lacked
jurisdiction over the minor children under the UCCJEA.
Husband moved to reconsider, arguing the family court erred by finding it lacked
jurisdiction over the divorce and by awarding attorney's fees to Wife. He argued
the family court erred by placing significant emphasis on his purported North
Carolina voting record and ignored exhibits showing the parties intended South
Carolina to be their home. Husband argued Wife failed to produce a financial
declaration and the family court could not properly assess her financial condition
or the other required factors for an award of attorney's fees.
The family court denied the motion, clarifying it had "considered all of the
evidence and put more weight on the evidence presented by [Wife] and . . . the
testimony of her witnesses[, s]pecifically, [Wife's] evidence regarding [Husband's]
public North Carolina voting record." The court noted the record showed Husband
voted in North Carolina until November 2016 and found that under North Carolina
law, a voter must be domiciled in the specific North Carolina precinct where he is
registered. This appeal followed.3
ISSUES ON APPEAL
1. Did the family court err by finding Husband failed to satisfy the residency
requirement of section 20-3-30?
2. Did the family court err by awarding Wife attorney's fees and costs?
STANDARD OF REVIEW
This court reviews family court matters de novo. Lewis v. Lewis, 392 S.C. 381,
386, 709 S.E.2d 650, 652 (2011); Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d
486, 486 (2018). Notwithstanding this broad scope of review, we recognize the
family court is "in a superior position to assess the demeanor and credibility of
witnesses." Lewis, 392 S.C. at 390, 709 S.E.2d at 654. Further, the appellant
maintains the burden of showing "that the preponderance of the evidence is against
the finding of the [family] court." Id. at 388, 709 S.E.2d at 653.
LAW/ANALYSIS
I. Jurisdiction
Husband first contends Wife couched her motion only as a motion to dismiss under
Rule 12(b)(2), SCRCP, for lack of personal jurisdiction and the inquiry should
have ended when the family court determined it had personal jurisdiction. He
asserts the issue of residency implicated in rem or subject matter jurisdiction and
Wife did not contest that issue specifically. Husband argues the preponderance of
the evidence did not support the family court's finding that he had not resided in
South Carolina for at least one year prior to filing the divorce action. He contends
the family court relied heavily on his North Carolina voting record and erred by
finding he could not maintain his domicile in South Carolina if he voted in North
Carolina.4 We disagree.
3
Husband did not appeal the family court's determination that it did not have
jurisdiction over the minor children under the UCCJEA.
4
Although Husband referenced the Servicemembers Civil Relief Act,
50 U.S.C. § 3901–4043, in his reply brief, we find this issue is unpreserved for our
review because he failed to raise this argument to the family court. See Elam v.
"Before the family court can exercise subject matter jurisdiction over a marriage
and grant a divorce, the plaintiff or defendant must have been a domiciliary of
South Carolina." Roesler v. Roesler, 396 S.C. 100, 106, 719 S.E.2d 275, 279 (Ct.
App. 2011).
In order to institute an action for divorce from the bonds
of matrimony the plaintiff must have resided in this State
at least one year prior to the commencement of the action
or, if the plaintiff is a nonresident, the defendant must
have so resided in this State for this period; provided, that
when both parties are residents of the State when the
action is commenced, the plaintiff must have resided in
this State only three months prior to commencement of
the action.
§ 20-3-30 (emphasis added); cf. Roy T. Stuckey, Marital Litigation in South
Carolina § 1.C. (5th ed. 2020) (interpreting the residency requirement of section
20-3-30 as an issue of in rem jurisdiction); id. ("In rem jurisdiction refers to the
court's power over the subject of the litigation, for example, the marriage . . . . The
family court acquires jurisdiction over the marriage, and the power to grant a
divorce, when one or both parties meet the statutory requirements to become
residents of South Carolina."). "The term 'reside' as used in the foregoing statute is
equivalent in substance to 'domicile.'" Gasque v. Gasque, 246 S.C. 423, 426, 143
S.E.2d 811, 812 (1965). "Domicile 'means the place where a person has his true,
fixed[,] and permanent home and principal establishment, to which he has,
whenever he is absent, an intention of returning.' The true basis and foundation of
domicile is the intention, the quo animo, of residence." Roesler, 396 S.C. at 107,
719 S.E.2d at 279 (citation omitted) (quoting Gasque, 246 S.C. at 426, 143 S.E.2d
at 812).
"The question of domicile is largely one of intent to be determined under the facts
and circumstances of each case." Gasque, 246 S.C. at 427, 143 S.E.2d at 812.
Generally, "temporary absence from one's domiciliary state solely because of
government work or employment does not effect a change of domicile within the
S.C. Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80 (2004) ("Issues and
arguments are preserved for appellate review only when they are raised to and
ruled on by the [family] court.").
meaning of the divorce laws, in the absence of clear proof of an intent to abandon
the old domicile and acquire a new one." Id. (emphasis added).
Initially, although the family court's order characterized the question of residence
under section 20-3-30 as one of personal jurisdiction, both parties agreed prior to
the hearing that the court would determine whether Husband established residency
pursuant to section 20-3-30 and whether "jurisdiction for divorce [wa]s proper here
as well." Husband does not dispute he was required to satisfy the prerequisites of
section 20-3-30 to maintain a divorce action in South Carolina. Therefore,
Husband waived any objection to the family court's consideration of the issue.
We find the family court did not err in concluding Husband established Eden as his
domicile. Husband and Wife provided conflicting testimony as to Husband's
residence. Where the testimony conflicts, we agree with the family court's
credibility findings because we recognize the family court was in a better position
to assess the witnesses' credibility and weigh their testimonies. See Brown v.
Brown, 379 S.C. 271, 277, 665 S.E.2d 174, 178 (Ct. App. 2008) ("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 . . . .'"
(quoting DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972))).
Applying the credibility findings to the evidence, we find the preponderance of the
evidence shows Husband failed to establish he resided in South Carolina for at
least one year prior to filing his complaint. We acknowledge Husband introduced
several forms of documentation indicating his address as Ansley Court in Greer,
South Carolina—principally his 2016 and 2017 tax returns, his driver's license,
several bank account and credit card statements, and his pilot's certification. He
also testified he provided the Ansley Court address to the Army when he enlisted
and never changed it. This evidence, however, is not conclusive of Husband's
intent. Husband's parents owned and resided in the Ansley Court home, and no
evidence showed Husband owned property in South Carolina. Husband agreed
that in late 2011, he and Wife discussed a desire to become established somewhere.
Although Husband did not state they discussed finding a permanent home in North
Carolina, Wife said they did and that they looked for a home to purchase in Eden.
Although they never actually purchased the Center Church Road home, Husband's
mother purchased it in 2012 or 2013 and Husband, Wife, and Children moved in
after initial renovations on the home were completed around August of 2015. Wife
stated they moved in the home with the intent to remain there for several years and
then move to another area of North Carolina that was closer to the airport and
Children's schools. With the exception of the period in winter and spring of 2015,
Wife remained in Eden, North Carolina, whenever Husband was away on a
military assignment, and when Husband was not away for employment or on
military orders, he stayed in Eden with Wife. Even by Husband's account, neither
he nor Wife lived in South Carolina for the first three-and-a-half years of their
marriage. Wife, whose testimony the family court found to be more credible than
Husband's, testified they intended for their stay in Greer to be temporary and they
only lived there from December 2014 until May of 2015. Furthermore, Wife and
Rudisill testified Husband was still living at the Center Church Road home when
Wife moved out in September of 2016.5
Next, we find the facts of this case are distinguishable from those presented in
Gasque. In Gasque v. Gasque, our supreme court found the husband, a native of
South Carolina who resided in Washington, D.C., for fourteen years in connection
with his employment with the United States Government, never abandoned his
domicile in South Carolina. 246 S.C. at 427, 143 S.E.2d at 812. There, the
husband "steadfastly maintained at all times that his legal residence was in the
State of South Carolina where he was born, reared, and continuously resided until
his acceptance of government employment." Id. at 428, 143 S.E.2d at 812. The
court found the husband's testimony that he considered himself a resident of South
Carolina and never intended to become a resident of any other state was
"substantiated by documentary evidence showing repeated and consistent
declarations" that he resided in South Carolina. Id. Our supreme court concluded
the husband's domicile of origin was South Carolina and no evidence showed he
ever intended to abandon it while "temporarily serving in the employ of the United
States Government in Washington, D.C." Id. at 428, 143 S.E.2d at 813. Unlike
Gasque, here, Husband did not live in North Carolina because of government
employment or work. Husband served in the military throughout his marriage, but
his military service never required him to reside in North Carolina. The military
fully released Husband from active duty in December of 2013, at which point he
returned to Eden with Wife and Child 1, and began looking for work. Husband did
not specifically seek employment in South Carolina at that time. He eventually
5
Notwithstanding Husband's testimony that he and Wife separated in May of 2016,
Husband's complaint, which stated the couple separated in September of 2016, is
conclusive as to the date of separation. See Postal v. Mann, 308 S.C. 385, 387, 418
S.E.2d 322, 323 (Ct. App. 1992) ("[P]arties are judicially bound by their pleadings
unless withdrawn, altered[,] or stricken by amendment or otherwise. The
allegations . . . in a pleading are conclusive as against the pleader and a party
cannot subsequently take a position contradictory of, or inconsistent with, his
pleadings . . . .").
obtained employment with Delta in late 2015. Delta permitted him to commute
from the airport of his choosing and his unit assignment with the military was in
Pennsylvania. Thus, neither his employment nor his military duties required his
presence in North Carolina. Instead, he testified he lived in Eden because that was
where his Wife and Children were. Therefore, we find this case is distinguishable
from Gasque because Husband did not reside in Eden due to his military service or
any other government employment.
Finally, we conclude the family court did not err in considering Husband's North
Carolina voting record and did not give the records undue weight in reaching its
decision. Notwithstanding our de novo standard of review, "an appellant is not
relieved of his burden to demonstrate error in the family court's findings of fact."
Lewis, 392 S.C. at 392, 709 S.E.2d at 655; see also Bailey v. Bailey, 293 S.C. 451,
453, 361 S.E.2d 348, 350 (Ct. App. 1987) ("The weight to be given evidence lies
within the province of the fact finder, here the family court."). We find the fact
Husband was registered to vote in North Carolina is particularly significant.
Husband's voting record demonstrated he voted in two primary elections and the
general election in Rockingham County, North Carolina in 2014 and in the general
election in 2016. The records indicated Husband was registered to vote in North
Carolina and did not file his request to cancel his North Carolina registration until
May 8, 2017, which was only a few weeks before he filed this divorce action. In
our view, regardless of North Carolina voting law, these records were highly
probative of Husband's domicile and demonstrated his intent to abandon his
parents' home in South Carolina and to reside and remain in Eden, North Carolina.
The family court found Husband's testimony that he did not recall voting in North
Carolina was not credible given his ability to recall other aspects of his life and
employment in detail. Indeed, Husband gave detailed accounts of when and where
he traveled on military assignments during the parties' marriage. Thus, the record
supports the family court's credibility findings. Moreover, in 2014, Husband
encouraged Wife to run in the Rockingham County School Board election and
Wife stated he attended all Republican Party political events with her. In addition,
Husband served on a committee for the Rockingham County Republican Party and
contributed to several North Carolina political campaigns. He admitted he was
actively involved with the Republican Party in Eden and participated in political
activities there. Husband's actions, including registering to vote and voting several
times in North Carolina, demonstrated he did not simply reside in Eden but rather,
he intended to establish Eden as his home and become part of its community.
Based on the foregoing, we find the preponderance of the evidence shows Husband
abandoned his parents' South Carolina home when he began living with his Wife
and Children in North Carolina. By registering to vote, becoming involved in local
politics, residing with his Wife and Children in their home in Eden whenever he
was not away for military assignments or his work with Delta, Husband
demonstrated an intent to remain in North Carolina indefinitely. After abandoning
South Carolina as his domicile, he did not return there with the intent to remain
until September 2016 at the earliest, which was less than one year before he filed
this action for divorce. Accordingly, we affirm the family court's finding that
Husband failed to satisfy the residency requirement of section 20-3-30 to maintain
an action for divorce in South Carolina.
II. Attorney's Fees
Husband argues the family court erred by awarding Wife attorney's fees and costs
of $7,241.04. Husband contends Wife was not entitled to an award of attorney's
fees as a matter of law because she was in default. He next asserts the family court
failed to address all relevant factors in deciding whether and how much to award in
attorney's fees and the preponderance of the evidence did not support its findings.
He further argues that because Wife failed to file a financial declaration pursuant to
Rule 20, SCRFC, the family court could not have considered her financial
condition. We disagree.
"[T]his [c]ourt reviews a family court's award of attorney's fees de novo." Stone v.
Thompson, 428 S.C. 79, 92, 833 S.E.2d 266, 272 (2019).
The court, from time to time after considering the
financial resources and marital fault of both parties, may
order one party to pay a reasonable amount to the other
for attorney fees, expert fees, investigation fees, costs,
and suit money incurred in maintaining an action for
divorce from the bonds of matrimony, as well as in
actions for separate maintenance and support, including
sums for services rendered and costs incurred before the
commencement of the proceeding and after entry of
judgment, pendente lite and permanently.
S.C. Code Ann. § 20-3-130(H) (2014).
When deciding whether to award attorney's fees, the family court considers the
following factors: "(1) the party's ability to pay his[or ]her own attorney's fee;
(2) beneficial results obtained by the attorney; (3) the parties' respective financial
conditions; [and] (4) 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). When
determining a reasonable attorney's fee, the family court considers "(1) the nature,
extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5) beneficial
results obtained; (6) customary legal fees for similar services." Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).
As an initial matter, although we acknowledge Rule 20, SCRFC, requires the
parties to file a financial declaration, and Wife does not dispute she failed to do so,
Wife's failure to comply with the rule did not preclude the family court from
granting her request for attorney's fees. See Rule 20(a), SCRFC ("In any domestic
relations action in which the financial condition of a party is relevant or is an issue
to be considered by the court, a current financial declaration in the form prescribed
by the Supreme Court shall be served and filed by all parties."); Rule 20(d),
SCRFC ("Reasonable sanctions may be imposed upon an attorney or a party for
willful noncompliance with this rule."). During the hearing, Wife introduced an
attorney's fee affidavit and requested an award of attorney's fees. Wife testified
she was unemployed and had no income. Husband raised no objection and did not
dispute Wife's testimony. Both parties testified they currently lived with their
respective parents, and Wife testified Children lived with her. This was sufficient
for the family court to consider Wife's financial condition and standard of living
compared to Husband's even though she did not file a financial declaration.
Next, we find the family court did not err in awarding Wife attorney's fees. The
family court listed the E.D.M. factors and noted Glasscock set forth the factors for
determining reasonable attorney's fees. The court stated it considered all of the
factors and found it was appropriate for Husband to pay Wife's attorney's fees and
costs of $7,241.04. As to Wife's ability to pay her own attorney's fee, the record
shows she had no source of income, she lived with Children in her parents' home,
and there was no evidence she had any other assets. As to beneficial results
obtained by the attorney, Wife prevailed on the jurisdiction issue, which we now
affirm. Therefore, Wife's counsel obtained beneficial results. As to the parties'
respective financial conditions, Wife earned no income, and Husband earned $877
per month from his National Guard drill pay, which was his only source of income
at the time. Husband testified he was not "medically cleared to return to fly" for
Endeavor at the time of the 2018 hearing because in 2016 he suffered an
aggravation to a preexisting back injury, for which he received treatment and
physical therapy. Husband stated that when he was able to return to flying,
Endeavor guaranteed him a base pay of $2,000 per month. The foregoing shows
that as to the parties' respective ability to pay, the parties' respective financial
conditions, and the beneficial results obtained, these factors weighed in favor of
awarding attorney's fees to Wife. Finally, as to the effect of the attorney's fee on
each party's standard of living, we find this factor weighed in Wife's favor.
Although both parties were living in their respective parents' homes at the time,
Wife earned no income and was also caring for Children; Husband had no formal
child support obligation and no testimony showed he had paid for any of Children's
expenses since he filed this action for divorce. Therefore, this factor weighed in
Wife's favor. Based on the foregoing, the preponderance of the evidence shows
Wife was entitled to attorney's fees and we find the family court did not err in
awarding attorney's fees to Wife.
Husband further argues that after deciding to award Wife attorney's fees, the family
court should have then considered the Glasscock factors in determining how much
to award in fees and costs. Husband raises this argument for the first time on
appeal. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)
("It is axiomatic that 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."). Regardless, we find $7,241.04 was a reasonable fee. See Glasscock,
304 S.C. at 161, 403 S.E.2d at 315 (providing that courts should consider the
following factors in determining a reasonable attorney's fee: "(1) the nature, extent,
and difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5) beneficial
results obtained; (6) customary legal fees for similar services"). In the attorney's
fee affidavit, Wife's attorney attested she was an active member of the South
Carolina bar, ninety percent of her practice involved family law, the time she and
her office spent was necessary to defend Wife in this action, and her fees were
"comparable to fees customarily charged in th[e] area for similar legal services."
Wife's attorney additionally attested she charged an hourly rate of $200 per hour
for attorney tasks and $100 per hour for paralegal tasks. The billing statement
shows Wife's attorney billed for 21.8 hours at the $200 rate and 25.4 hours at the
$100 rate. The attorney's fee affidavit therefore established the time necessarily
devoted to the case, the professional standing of counsel, and customary legal fees
for similar services. See id. As to the nature, extent, and difficulty of the case, the
only issue litigated between the parties was the narrow question of jurisdiction.
Wife incurred a total of $7,241.04 in attorney's fees and Husband incurred $12,000
in attorney's fees. Husband testified his attorney billed $350 per hour for attorney
tasks and $85 per hour for paralegal tasks. It is unclear from the record how many
hours Husband's attorney devoted to the case; however, given Husband incurred
almost $5,000 more in fees for litigating the same issue, we find Wife's attorney's
fees were reasonable based upon the nature, extent, and difficulty of the case.
As to the remaining factors of contingency of compensation—i.e., each party's
ability to pay their own attorney's fees—and beneficial results obtained, as we
stated above, these factors weigh in favor of awarding fees to Wife. See id. at 161
n.1, 403 S.E.2d at 315 n.1 ("'[C]ontingency of compensation' and 'beneficial results
obtained' are to be considered in determining whether an award should be made.");
id. at 161, 403 S.E.2d at 315 ("[T]he contingency to be considered is whether the
party on whose behalf the services were rendered will be able to pay the attorney's
fee if an award is not made."); id. ("[T]he factor 'beneficial results obtained' merely
aids in determining whether an award is appropriate when considering whether the
services of a lawyer facilitated a favorable result.").
Finally, we decline to address Husband's argument that Wife was not entitled to
attorney's fees because she was in default. Husband raised this argument for the
first time on appeal. Therefore, it is unpreserved for our review. See Wilder
Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("It is axiomatic that 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.").
Based on the foregoing, we find the family court did not err in awarding attorney's
fees to Wife.
CONCLUSION
For the foregoing reasons, we affirm the family court's order finding Husband
failed to satisfy the residency requirement of section 20-3-30, which was a
perquisite to maintaining an action for divorce in South Carolina, and awarding
attorney's fees to Wife. Thus, the ruling of the family court is
AFFIRMED.
HEWITT, J., and HUFF, A.J., concur.