Michelle Johnson v. Jon Johnson

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

Michelle Lynne Messina Johnson, Respondent-
Appellant,

v.

Jon Alex Johnson, Appellant-Respondent.

Appellate Case No. 2023-000874

Appeal from Pickens County
Jessica Ann Salvini, Family Court Judge

Unpublished Opinion No. 2026-UP-259
Heard April 14, 2026 – Filed June 3, 2026

AFFIRMED AS MODIFIED IN PART, REVERSED
IN PART

Melissa D. Spivey, of The Spivey Law Group, LLC, of
Mauldin, for Appellant-Respondent.

Robert Scott Dover, of Pickens, for
Respondent-Appellant.

PER CURIAM: In this cross-appeal, Appellant-Respondent Jon Alex Johnson
(Husband) argues the family court erred by: (1) ordering Husband to pay retroactive
child support and spousal support; (2) granting Respondent-Appellant Michelle
Lynne Messina Johnson (Wife) permanent periodic alimony in the amount of $1,000
a month; (3) requiring Husband to pay private investigator fees and reimburse his
daughter $2,100; (4) dividing the marital estate inequitably; (5) awarding Wife
attorney's fees; and (6) setting an unreasonable payment schedule. Wife challenges
the family court's denial of her motion to extend the time to sell the marital home.
We affirm as modified in part and reverse in part.
HUSBAND'S APPEAL

I. As to whether the family court erred by awarding Wife retroactive alimony
and child support, we hold the family court did not err because Husband concealed
his new employment and, by his own testimony, was aware that he had a strong
potential to make a similar income at his new employment. Thus, it was an error to
reduce the child support and alimony obligations in a temporary order, and the
family court redressed the error in its final order. See S.C. Code Ann.
§ 63-3-530(A)(25) (2010) (providing that the family court has exclusive jurisdiction
"to modify or vacate any order issued by the court"); Terry v. Terry, 400 S.C. 453,
457, 734 S.E.2d 646, 648 (2012) ("The family court at the final hearing has the
authority to redress any error from the temporary order.").

II. As to whether the family court erred by awarding Wife permanent periodic
alimony instead of lump sum alimony, we hold the family court did not err because
there were no special circumstances that warranted a lump sum alimony award. See
Rogers v. Rogers, 432 S.C. 168, 192, 851 S.E.2d 447, 460 (Ct. App. 2020)
("Generally, alimony should place the supported spouse, as nearly as is practical, in
the same position he or she enjoyed during the marriage." (quoting Allen v. Allen,
347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001))); Johnson v. Johnson, 296
S.C. 289, 301, 372 S.E.2d 107, 114 (Ct. App. 1988) ("If a claim for alimony is well
founded, the law favors the award of permanent, periodic alimony."); Carroll v.
Carroll, 309 S.C. 22, 24, 419 S.E.2d 801, 802 (Ct. App. 1992) ("Lump sum alimony
is appropriate upon a finding of special circumstances. Lump sum awards are not
favored and should be given only in exceptional cases or when consented to. Such
an award must be supported by some impelling reason for its necessity or
desirability." (citation omitted)); Murdock v. Murdock, 243 S.C. 218, 225, 133
S.E.2d 323, 326 (1963) (affirming a lump sum alimony award because a special
circumstance existed when the spouse ordered to pay alimony was unwilling to
provide support in regular installments); Dearybury v. Dearybury, 351 S.C. 278,
280, 569 S.E.2d 367, 368 (2002) (affirming a lump sum alimony award because a
special circumstance existed when the spouse ordered to pay alimony might be
unable to make regular payments due to self-employment at a start-up company,
rendering future earnings uncertain); Richardson v. Richardson, 309 S.C. 31, 36,
419 S.E.2d 806, 809 (Ct. App. 1992) (holding a special circumstance existed when
there was an agreement between the parties for an award of lump sum alimony).

III. As to whether the family court erred by setting Wife's alimony amount at
$1,000 a month, we hold the family court did not err because Husband failed to carry
his burden of showing the family court committed an error or that the preponderance
of the evidence is against the family court's findings. Husband asserts Wife inflated
her expenses and the parties did not enjoy a high standard of living during the
marriage, warranting a lower alimony award. However, the record reflects that
Wife's inflated expenses and the parties' marital debt were accounted for in the
alimony award of $1,000 a month. Husband offers no explanation as to why the
award is still too high even with those facts taken into consideration in the family
court's award. Greene v. Greene, 439 S.C. 427, 439–40, 887 S.E.2d 157, 164 (Ct.
App. 2023) ("The appellant bears the burden of convincing the appellate court that
the family court committed error or the preponderance of the evidence is against the
family court's findings.").

IV. As to whether the family court erred by ordering Husband to pay the private
investigator's fee to testify in court, we affirm the family court's order because the
private investigator's testimony was necessary for Wife to meet her burden of
proving Husband had an affair. We note Husband maintained his position that the
breakdown of marriage was not due to his infidelity throughout the course of the
action before the family court. Further, Husband also maintained that he did not
have an affair with the individual named by Wife. The private investigator testified
Husband had an affair with that individual—testimony that was necessary for Wife
to establish Husband had an affair and that Husband used marital funds for his affair.
See Brown v. Brown, 379 S.C. 271, 277, 665 S.E.2d 174, 178 (Ct. App. 2008)
(providing that to receive a divorce on the ground of adultery, the spouse seeking
the divorce must establish by clear and convincing evidence that infidelity occurred);
id. at 278, 665 S.E.2d at 178. ("[A]dultery may be proven by circumstantial evidence
that establishes both a disposition to commit the offense and the opportunity to do
so.").

V. As to whether the family court erred by ordering Husband to reimburse his
daughter $2,100, we reverse the family court because the check was not part of the
marital estate and the court did not have the authority to apportion nonmarital
property. S.C. Code Ann. § 20-3-630(A) (2014) ("The term 'marital property' . . .
means all real and personal property which has been acquired by the parties during
the marriage . . . ."); S.C. Code Ann. § 20-3-630(B) (2014) ("The court does not have
jurisdiction or authority to apportion nonmarital property."). Daughter was not a
party to this case or even involved in this case because she was an adult at the time
the action commenced. Thus, the check was not part of the marital estate, a fact the
parties and the family court acknowledged.

VI. As to the equitable division of the marital estate, we affirm the family court's
findings. We hold the valuation of the guns and the home contents was supported
by credible testimony in this record. We note that Husband's testimony on these
values was speculative at best while Wife's testimony reflected a thoughtful
investigation of the value of the items. See Stoney v. Stoney, 422 S.C. 593, 595, 813
S.E.2d 486, 487 (2018) ("We observed that de novo review allows an appellate court
to make its own findings of fact; however, this standard does not abrogate [the] []
long-standing principle[] still recognized by our courts during the de novo review
process: [] a trial judge is in a superior position to assess witness credibility . . . .").
As to the fair market value of the marital home, we agree that the family court should
have assigned a value to the home. See Gardner v. Gardner, 368 S.C. 134, 136, 628
S.E.2d 37, 38 (2006) ("In making an equitable distribution of marital property, the
court must (1) identify the marital property, both real and personal, to be divided
between the parties; (2) determine the fair market value of the identified 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."). However, we decline to reverse
for assignment of the home's value because the profit from the sale of the home is
set to be divided equally and thus, the division of the marital assets would not
change. See Stephens v. Draffin, 327 S.C. 1, 6, 488 S.E.2d 307, 309 (1997) ("Error
without prejudice does not warrant reversal."). As to the RC hobby cars, the
equitable division chart already listed the item as awarded to Wife for $4,000 and
Husband offers no argument as to why this was an error. See Greene, 439 S.C. at
439–40, 887 S.E.2d at 164 ("The appellant bears the burden of convincing the
appellate court that the family court committed error or the preponderance of the
evidence is against the family court's findings."). As to the student loan debt,
Husband failed to provide any evidence as to how much, if any, of Wife's premarital
student loans had yet to be paid off. Hardy v. Hardy, 311 S.C. 433, 437, 429 S.E.2d
811, 814 (Ct. App. 1993) ("[T]he burden of proving a spouse's debt as non-marital
rests upon that party who makes such assertion."). Finally, Husband's arguments
related to the values of certain accounts or whether Wife had sold the Toyota Ring
and gun safe are not preserved because Husband did not raise these arguments in his
motion to reconsider. See Rummage v. BGF Indus., 434 S.C. 441, 455, 865 S.E.2d
380, 388 (Ct. App. 2021) (providing that a "rule of appellate preservation instructs
an issue must be raised to and ruled upon to be preserved for appellate review").

VII. As to the award of attorney's fees to Wife, we affirm the award and its
amount for the contempt action. However, for the attorney's fees award for the
divorce action, we affirm the decision to award attorney's fees to Wife but modify
the award amount to reflect that Wife had already paid her counsel $6,000. Thus,
the appropriate award to Wife for the divorce action is $27,276.40. Srivastava v.
Srivastava, 411 S.C. 481, 489, 769 S.E.2d 442, 447 (Ct. App. 2015) ("[I]f the family
court decides to award attorney's fees to a particular party, the family court should
weigh the following factors as set forth in Glasscock v. Glasscock in considering
how much to award in attorney's fees and costs: '(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.'" (quoting Farmer v. Farmer, 388 S.C. 50,
57, 694 S.E.2d 47, 51 (Ct. App. 2010))).

VIII. As to the payment schedule, we affirm the family court's order with the
following modification: Husband must pay, in addition to the $1,000 a month in
alimony, $752 a month toward any obligations remaining after the sale of the marital
residence. Husband's financial declaration revealed that after expenses, he had
$1,752 remaining each month. The current payment schedule requires Husband to
pay $1,782 in spousal support and to his financial obligations remaining after the
sale of the marital home—thirty dollars more than his remaining funds after
expenses. Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014)
("In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo.").

WIFE'S APPEAL

Wife abandoned her appeal by failing to cite any legal authority to support her
proposition and making only short, conclusory arguments. See First Sav. Bank v.
McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (holding the appellant
abandoned an issue when he failed to provide arguments or supporting authorities
for his assertion). Accordingly, we do not reach the merits of Wife's appeal.

For the reasons stated above, the family court's order is

AFFIRMED AS MODIFIED IN PART, REVERSED IN PART.
GEATHERS, HEWITT, and CURTIS, JJ., concur.