Shehan v. Shehan

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

Angela Jo Branyon Shehan, Respondent,

v.

Richard Allen Shehan, Appellant.

Appellate Case No. 2010-174446

Appeal From Pickens County
Timothy M. Cain, Family Court Judge

Unpublished Opinion No. 2012-UP-353
Heard May 22, 2012 – Filed June 13, 2012

AFFIRMED

J. Falkner Wilkes, of Greenville, for Appellant.

David James Brousseau, of McIntosh, Sherard, &
Sullivan, of Anderson, for Respondent.

PER CURIAM: Richard Allen Shehan (Husband) appeals from an order of the
family court (1) finding Angela Jo Branyon Shehan (Wife) entitled to equitable
distribution of certain assets that were subject to an antenuptial agreement between
the parties, and (2) awarding Wife attorney fees and costs. We affirm.
1. After de novo review, we find the trial court did not err in finding a change
of circumstances existed warranting the agreement not be enforced as to certain
property that may have otherwise been covered by the agreement. In appeals from
the family court, an appellate court reviews factual and legal issues de novo.
Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "De novo
review permits appellate court fact-finding, notwithstanding the presence of
evidence supporting the trial court's findings." Lewis v. Lewis, 392 S.C. 381, 390,
709 S.E.2d 650, 654-55 (2011). However, while this court has the authority to find
facts in accordance with our own view of the preponderance of the evidence, "we
recognize the superior position of the family court judge in making credibility
determinations." Id. at 392, 709 S.E.2d at 655. Further, de novo review does not
relieve an appellant of his "burden to demonstrate error in the family court's
findings of fact." Id. "Consequently, the family court's factual findings will be
affirmed unless appellant satisfies this court that the preponderance of the evidence
is against the finding of the [family] court." Id. (alteration in original) (internal
citation and quotation marks omitted).

First, we find no merit to Husband's assertion that the record does not support the
family court's finding that Husband used his income to purchase assets, while Wife
primarily used her income to support the family's general living expenses. The
record is replete with evidence that Wife's income was predominantly used on
medical and dental bills, clothing, groceries, childcare, school supplies, family
vacations, gifts, and furnishings for the home, and that she was unable to purchase
real property because she did not have the money to do so. Additionally, there is
evidence Husband used his income for the acquisition of real property and farm
equipment, as well as to purchase items for the sole enjoyment of his hobbies.
Considering the family court judge's superior position in making credibility
determinations, we find Husband has not met his burden of demonstrating error in
the family court's findings of fact.1

We further find no error in the family court's determination that a change in
circumstances warranted invalidating the provisions of the agreement as to certain
property. Our courts have adopted the following test to determine whether a
prenuptial agreement should be enforced: "(1) Was the agreement obtained through
fraud, duress, or mistake, or through misrepresentation or nondisclosure of material
facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances
changed since the agreement was executed, so as to make its enforcement unfair

1
We note the trial court made a credibility finding in favor of Wife concerning her
allegation of physical cruelty by Husband, even though Husband denied the same.
and unreasonable?" Hardee v. Hardee, 355 S.C. 382, 389, 585 S.E.2d 501, 504
(2003) (internal quotation marks omitted). Where the change in circumstances
relied upon to avoid enforcement of an antenuptial agreement is completely
foreseeable to the party seeking to avoid enforcement, our courts have found the
facts and circumstances at the time of enforcement have not changed to the extent
that enforcement of the agreement is unfair or unreasonable. See id. at 390-91, 585
S.E.2d at 505 (holding our supreme court upheld this court's determination that the
facts and circumstances of wife's worsening health had not changed to such an
extent that it was unreasonable or unfair to enforce the agreement where wife had
serious health problems at the time she signed the antenuptial agreement, the
agreement specifically noted wife's health problems, it was completely foreseeable
to wife that her health would worsen, and wife's attorney advised her not to sign
the agreement because of her health problems).

A review of the antenuptial agreement in this matter shows it generally
contemplated both parties would be able to acquire assets. More importantly, the
agreement specifically states that "[e]ach of the parties recognize the obligation of
mutual support and agree that nothing contained herein is an attempt to interfere
with that obligation." (emphasis added). The evidence shows that, contrary to this
agreement, Husband did not provide mutual support to the marriage. Rather, he
focused much of his income on purchasing assets held in his name alone, while
Wife's income was primarily consumed by non-asset producing support of the
family. Further, we disagree with Husband's assertion that the change in
circumstances was completely foreseeable because, as noted, the prenuptial
agreement anticipates that both parties would be able to acquire assets after the
marriage, and both parties would provide "mutual support" to the marriage. The
evidence shows Husband did not live up to the provision of mutual support in the
agreement and Wife was foreclosed from acquiring her own assets as a result.
Thus, we find the facts and circumstances have changed since execution of the
prenuptial agreement so as to make enforcement of the provision concerning
acquisition of property by the parties during the marriage unfair and unreasonable.

Because our analysis concerning the change in circumstances is dispositive, we
need not address the court's alternate rulings on transmutation and special equity.
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 when disposition of a prior issue is dispositive).
2. As to Husband's contention the family court erred in awarding attorney fees
and costs to Wife, we likewise find no reversible error.2 The decision to award
attorney's fees is within the family court's sound discretion, and although appellate
review of such an award is de novo, the appellant still has the burden of showing
error in the family court's findings of fact. Chisholm v. Chisholm, 396 S.C. 507,
510, 722 S.E.2d 222, 223-24 (2012). In deciding whether to award attorney fees
and costs, the court should consider the following factors: (1) the ability of the
party to pay his or her own fees; (2) beneficial results obtained; (3) the financial
conditions of the parties; and (4) the effect a fee award will have on the 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).

We first note that Husband fails to point out how he "prevailed on the majority of
issues," as he contends, and we find no support for this conclusory assertion in the
record before us. Additionally, as previously noted, we decline to reverse the
family court's decision to invalidate provisions of the agreement as to certain
property and the award of a portion of that property to Wife. Here, the family
court properly considered the E.D.M. factors and determined an award of attorney
fees and costs was appropriate. Accordingly, we find no abuse of discretion in the
court's decision to award Wife attorney fees and costs.

For the foregoing reasons, the order of the family court is

AFFIRMED.

FEW, C.J., and HUFF and SHORT, JJ., concur.

2
Husband does not challenge on appeal the reasonableness of the amount of fees
awarded, but only the family court's decision to award Wife attorney fees and
costs.