Ryan v. Ryan

THIS OPINION
HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

William Francis
Ryan, Jr., Respondent,

v.

Lois Jean Ryan, Appellant.

Appeal From Oconee County

 Tommy B. Edwards, Family Court Judge

Unpublished Opinion No. 2009-UP-104

Heard January 21, 2009 – Filed March 2,
2009

REVERSED AND REMANDED

Candy M. Kern-Fuller, of Piedmont, for
Appellant.

Robert K. Whitney, of Seneca, for
Respondent.

PER CURIAM:  In
this action for separate support and maintenance, Lois Jean Ryan (Wife) appeals
the family court's award of alimony, apportionment of marital property, and
award of attorney's fees.  We reverse and remand.

FACTS / PROCEDURAL HISTORY

Wife
and William Francis Ryan (Husband) were married approximately twenty years
before they separated in 2005.  Husband subsequently filed this action
requesting separate maintenance and support, division of the marital property,
and attorney's fees. 

After
a hearing, the family court issued a final order of separate maintenance.  In
its order, the family court awarded Husband alimony and attorney's fees,
awarded Wife the marital home, ordered Wife to provide Husband medical
insurance, and equally apportioned the marital property.  This appeal
followed.

LAW / ANALYSIS

I. ALIMONY

Wife argues the family court erred in awarding Husband
alimony without weighing the factors set forth in section 20-3-130(C) of the
South Carolina Code (Supp. 2008).  Specifically, Wife asserts the family court
should have considered Husband's fault contributing to the breakup of the
marriage.  Moreover, Wife asserts Husband's adultery barred an award of
alimony.  Finally, Wife argues even if the family court did not err in awarding
Husband alimony, the amount of the award was grossly disproportionate.

The
family court judge may grant alimony in such amounts and for such term as the
judge considers appropriate under the circumstances.  Smith v. Smith,
327 S.C. 448, 462, 486 S.E.2d 516, 523 (Ct. App.1997).  The family court is
required to consider the following factors in making an alimony award: (1)
duration of the marriage; (2) physical and emotional health of the
parties; (3) educational background of the parties; (4) employment history and
earning potential of the parties; (5) standard of living established during the
marriage; (6) current and reasonably anticipated earnings of the parties; (7)
current and reasonably anticipated expenses of the parties; (8) marital and
nonmarital properties of the parties; (9) custody of children; (10) marital
misconduct or fault; (11) tax consequences; and (12) prior support obligations;
as well as (13) other factors the court considers relevant. S.C.Code Ann. § 20-3-130(C)
(Supp. 2008).  The court must consider all relevant factors in determining
alimony.  Davis v. Davis, 372 S.C. 64, 80, 641 S.E.2d 446,
454 (Ct. App. 2006); see also Patel v. Patel, 347 S.C. 281,
290, 555 S.E.2d 386, 391 (2001) (finding the trial court's denial of alimony
was erroneous because the court did not address "several important factors"
when determining no alimony should be awarded).  "Our inquiry on appeal is
not whether the family court gave the same weight to particular factors as this
court would have; rather, our inquiry extends only to whether the family court
abused its considerable discretion in assigning weight to the applicable
factors." Allen v. Allen, 347 S.C. 177, 186, 554 S.E.2d 421, 425
(Ct. App. 2001).

Here,
both Husband and Wife testified at the hearing that Husband's misconduct or
fault contributed to the breakup of their marriage.  Specifically, Husband
testified he and Wife separated because his "son had [him] arrested for
assault and battery."  Wife also pursued two restraining orders against
husband because of his abusive behavior toward their son. 

The
family court, however, did not consider this testimony in determining alimony. 
In fact, the order provides: "neither party alleged marital misconduct on
the other that could constitute fault grounds for divorce."  Pursuant to
section 20-3-130(C)(10), the family court should have considered fault, even
though it was not used as a basis for divorce or separate maintenance. 
Accordingly, we remand this issue to the family court and direct the court to redetermine
alimony, considering all relevant factors, especially including Husband's
fault.

Wife's
argument that Husband's adultery bars the award of alimony is without merit. 
The only testimony at the hearing regarding adultery concerned an affair that
occurred several years before the couple's separation, and the couple
reconciled after Husband's affair.  See Doe v. Doe, 286
S.C. 507, 512, 334 S.E.2d 829, 832 (Ct. App. 1985) (holding husband could not
avail himself of the statute barring alimony to an adulterous spouse when
husband condoned wife's adultery; thus wife was still
eligible for alimony).

We need not address the issue of whether the alimony was grossly
disproportionate because we are remanding this case for a redetermination of
alimony.  See Futch v. McAllister Towing of Georgetown, 335 S.C.
598, 613, 518 S.E.2d 591, 598 (Ct. App. 1991) (holding an appellate court need
not review remaining issues when its determination of a prior issue is
dispositive of the appeal).

II. MARITAL AND
NON-MARITAL PROPERTY

Wife
argues the family court erred by failing to weigh Husband's fault in the
breakup of the marriage in apportioning the marital property.  Wife also argues
the family court erred by apportioning non-marital property.

In determining an
equitable distribution of marital property, the family court must identify,
value, and equitably apportion the property.  Johnson v. Johnson, 288
S.C. 270, 276, 341 S.E.2d 811, 815 (Ct. App. 1986).  The court must consider
several factors in making an equitable distribution.  S.C.
Code Ann. § 20-3-620 (Supp. 2008) (outlining
fifteen factors for the family court to consider in equitable distribution).  Included
in those factors is the marital misconduct or fault of either party.  S.C. Code Ann § 20-3-620(2)
(Supp. 2008).

Here,
as set forth above, the only mention of Husband's fault in the family court
order provides: "neither party alleged marital misconduct on the other
that could constitute fault grounds for divorce."  Because the family
court failed to consider Husband's fault when apportioning marital property, we
reverse and remand this issue for the family court to examine all of the
factors set forth in section 20-3-620 and redetermine the equitable
distribution of the marital property.

We
need not address Wife's argument regarding nonmarital property because we are
remanding the entire issue of apportionment to the family court.  See Futch,
335 S.C. at 613, 518 S.E.2d at 598.

III. ATTORNEY'S FEES

Wife
argues the family court erred by awarding Husband attorney's fees without
making specific findings of fact on the record regarding each of the required
factors to be considered.

In a
family court matter, "[t]he award of attorney's fees . . . will only be
disturbed upon a showing of abuse of discretion."  Upchurch v.
Upchurch, 367 S.C. 16, 28, 624 S.E.2d 643, 648 (2006).  "A
decision lacking a discernible reason is arbitrary and constitutes an abuse of
discretion."  Johnson v. Johnson, 296 S.C. 289, 304, 372
S.E.2d 107, 115 (Ct. App. 1988). 

The
family court has jurisdiction to award reasonable attorney's fees when a claim
for attorney's fees is well-founded.  S.C. Code Ann. §§ 20-3-120-140 (Supp.
2008).  The decision whether to award attorney’s fees is within the
discretion of the family court.  Upchurch, 367 S.C. at 28, 624
S.E.2d at 648.  In determining whether to award attorney's fees, the
family court should consider each party's ability to pay his or her own fees,
the beneficial results obtained, the parties' respective financial conditions,
and the effect of the fee on the parties' standards of living.  E.D.M.
v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). 

Here,
we are reversing and remanding this action to the family court.  Husband's
attorney, therefore, has not obtained beneficial results on appeal.  Accordingly,
we vacate the family court's award of attorney's fees.   

CONCLUSION

As
set forth above, we reverse and remand this action for the family court to
reexamine the issues of alimony, equitable distribution, and attorney's fees.

REVERSED
AND REMANDED.

SHORT
and KONDUROS, JJ., and GOOLSBY, A.J., concur.