Okamura v. Aguirre

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Elizabeth Okamura, Respondent,

v.

Carlos Aguirre, Appellant.

Appellate Case No. 2017-000017

Appeal From Pickens County
William J. Wylie, Jr., Family Court Judge

Unpublished Opinion No. 2019-UP-198
Submitted May 1, 2019 – Filed June 5, 2019

AFFIRMED

J. Falkner Wilkes, of Greenville, for Appellant.

David Christopher Shea, of Shea and Barron, of
Columbia; and Ruth Hindman DiPasquale, of Ruth Law
Firm, LLC, of Greenville, both for Respondent.

PER CURIAM: Carlos Aguirre (Husband) appeals the family court's final
divorce order, arguing the family court erred (1) by awarding Elizabeth Okamura
(Wife) $1,500 per month in permanent periodic alimony, (2) in its imputation of
Husband's income, (3) in its valuation of the marital business for purposes of
dividing the marital property, and (4) by awarding Wife attorney's fees and costs.
We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the family court erred in its analysis and award of permanent
periodic alimony to Wife: Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486,
487 (2018) ("[T]he proper standard of review in family court matters is de
novo . . . ."); McMillan v. McMillan, 417 S.C. 583, 590, 790 S.E.2d 216, 220 (Ct.
App. 2016) ("[T]his [c]ourt has jurisdiction to find facts in accordance with its own
view of the preponderance of the evidence; however, this broad scope of review
does not require the [c]ourt to disregard the findings of the family court, which is
in a superior position to make credibility determinations." (second and third
alteration by McMillan court) (quoting Crossland v. Crossland, 408 S.C. 443, 451,
759 S.E.2d 419, 423 (2014))); Buist v. Buist, 410 S.C. 569, 574, 766 S.E.2d 381,
383 (2014) ("The appellant retains the burden to demonstrate the error in the
family court's findings of fact."); Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d
650, 655 (2011) ("[T]he family court's factual findings will be affirmed unless
'appellant satisfies [the appellate] court that the preponderance of the evidence is
against [such findings].'" (quoting Finley v. Cartwright, 55 S.C. 198, 202, 33 S.E.
359, 360-61 (1899))); Butler v. Butler, 385 S.C. 328, 336, 684 S.E.2d 191, 195 (Ct.
App. 2009) ("Permanent[] periodic alimony is a substitute for support [that] is
normally incidental to the marital relationship."); Hinson v. Hinson, 341 S.C. 574,
577, 535 S.E.2d 143, 144 (Ct. App. 2000) ("Alimony should ordinarily place the
supported spouse, as nearly as is practical, in the same position he or she enjoyed
during the marriage."); Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.
App. 2001) (stating the family court has a duty to formulate an alimony award that
is "fit, equitable, and just if the claim is well-founded"); S.C. Code Ann.
§ 20-3-130(C) (2014) (requiring the family court to consider the following
statutory factors in making an alimony award: (1) the duration of the marriage; (2)
the physical and emotional health of the parties; (3) the educational background of
the parties; (4) the employment history and earning potential of the parties; (5) the
standard of living established during the marriage; (6) the current and reasonably
anticipated earnings of the parties; (7) the current and reasonably anticipated
expenses and needs of the parties; (8) the marital and nonmarital properties of the
parties; (9) custody of children; (10) marital misconduct or fault; (11) tax
consequences; (12) prior support obligations; and (13) any other factors the court
considers relevant); Allen, 347 S.C. at 184, 554 S.E.2d at 425 (providing "[n]o one
factor is dispositive" in making an alimony award.)

2. As to whether the family court erred in its imputation of Husband's income:
McMillan, 417 S.C. at 590, 790 S.E.2d at 220 ("In appeals from the family court,
this [c]ourt reviews factual and legal issues de novo." (alteration in original)
(quoting Crossland, 408 S.C. at 451, 759 S.E.2d at 423)); Susan R. v. Donald R.,
389 S.C. 107, 114, 697 S.E.2d 634, 638 (Ct. App. 2010) ("Generally, the family
court determines gross income for purposes of calculating [support awards] based
upon the financial declarations submitted by the parties."); id. ("When income
reflected on the financial declaration is at issue, the family court may rely on
suitable documentation to verify income, such as pay stubs, employer statements,
receipts, or expenses covering at least one month."); Sanderson v. Sanderson, 391
S.C. 249, 255, 705 S.E.2d 65, 68 (Ct. App. 2010) ("[T]he family court has the
discretion to impute income to a party with respect to awards of alimony or child
support."); Messer v. Messer, 359 S.C. 614, 629, 598 S.E.2d 310, 318 (Ct. App.
2004) ("It is well-settled in South Carolina that an award of alimony should be
based on the payor spouse's earning potential rather than merely his current,
reported earnings."); Gartside v. Gartside, 383 S.C. 35, 44, 677 S.E.2d 621, 626
(Ct. App. 2009) ("Whether termed voluntary underemployment, imputation of
income, or the failure to reach earning potential, the case law is clear that when a
payor spouse seeks to reduce support obligations based on his diminished income,
a court should consider the payor spouse's earning capacity."); Susan R., 389 S.C.
at 114, 697 S.E.2d at 638 (stating it was proper for the family court to consider
invoices from the husband's business for purposes of calculating his child support
obligation and impute additional income to him when his financial declaration nor
his income tax return reflected any income from the business or his rental
property); Abercrombie v. Abercrombie, 372 S.C. 643 n.4, 649, 643 S.E.2d 697,
700 (Ct. App. 2007) ("Husband failed to even file a financial declaration with the
family court as required by the family court rules. Therefore, he cannot now
complain that the family court improperly relied on Wife's testimony in awarding
alimony.").

3. As to whether the family court erred in its valuation of the marital business:
McMillan, 417 S.C. at 590, 790 S.E.2d at 220 ("In appeals from the family court,
this [c]ourt reviews factual and legal issues de novo." (quoting Crossland, 408 S.C.
at 451, 759 S.E.2d at 423)); Browder v. Browder, 382 S.C. 512, 522, 675 S.E.2d
820, 825 (Ct. App. 2009) ("In making an equitable distribution of marital property,
the court must: (1) identify the marital property to be divided between the parties;
(2) determine the fair market value of the property; (3) apportion the marital estate
according to the contributions, both direct and indirect, of each party to the
acquisition of the property during the marriage, their respective assets and
incomes, and any special equities they may have in marital assets; and (4) provide
for an equitable division of the marital estate, including the manner in which the
distribution is to take place."); id. at 522-23, 675 S.E.2d at 825 (stating the family
"court has broad discretion in valuing marital property"); King v. King, 384 S.C.
134, 144, 681 S.E.2d 609, 614 (Ct. App. 2009) ("A family court may accept the
valuation of one party over another, and the court's valuation of marital property
will be affirmed if it is within the range of evidence presented." (quoting
Abercrombie, 372 S.C. at 647, 643 S.E.2d at 699)).

4. As to whether the family court erred in its award of Wife's attorney's fees and
costs: McMillan, 417 S.C. at 590, 790 S.E.2d at 220 ("In appeals from the family
court, this [c]ourt reviews factual and legal issues de novo." (alteration in original)
(quoting Crossland, 408 S.C. at 451, 759 S.E.2d at 423)); S.C. Code Ann.
§ 20-3-130(H) (2014) (providing that the family court "may order one party to pay
a reasonable amount to the other for attorney['s] fees . . . incurred in maintaining an
action for divorce"); E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816
(1992) (setting forth four factors the family court should consider in determining
whether to award attorney's fees: "(1) the party's ability to pay his[ or ]her own
attorney's fee[s]; (2) beneficial results obtained by the attorney; (3) the parties'
respective financial conditions; [and] (4) [the] effect of the attorney's fee[s] on
each party's standard of living"); Glasscock v. Glasscock, 304 S.C. 158, 161, 403
S.E.2d 313, 315 (1991) (providing that the family court should consider six factors
in determining the reasonableness of attorney's fees: "(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; [and] (6) customary legal fees for similar services"); Spreeuw v. Barker,
385 S.C. 45, 72-73, 682 S.E.2d 843, 857 (Ct. App. 2009) (upholding an award of
attorney's fees to the mother because the father's "uncooperative conduct in
discovery and his evasiveness in answering questions with respect to his financial
situation" greatly contributed to the litigation costs incurred); Anderson v. Tolbert,
322 S.C. 543, 550, 473 S.E.2d 456, 460 (Ct. App. 1996) (requiring "the husband to
reimburse the wife for attorney['s] fees she incurred due solely to
his uncooperative, unreasonable, and contumacious conduct").

AFFIRMED. 1

WILLIAMS, GEATHERS, and HILL, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.