Huggins v. Huggins

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

Celestine Huggins, Respondent,

v.

Kenneth Huggins and Garry Conyers, Defendants,

Of whom Kenneth Huggins is the Appellant.

Appellate Case No. 2015-001803

Appeal From Sumter County
Angela R. Taylor, Family Court Judge

Unpublished Opinion No. 2018-UP-357
Heard March 13, 2018 – Filed August 15, 2018

AFFIRMED

John Stephen Keffer, of Young, Keffer & Donnald, PA,
of Sumter, for Appellant.

Richard Thomas Jones, of Jones Seth & Jones, LLP, of
Sumter, for Respondent.

PER CURIAM: In this divorce action, Kenneth Huggins (Husband) appeals,
arguing the family court erred in (1) allowing Celestine Huggins (Wife) to amend
her pleadings; (2) finding he committed adultery; (3) awarding Wife attorney's fees
and costs, including investigative fees; (4) determining his conduct, including
physical cruelty and habitual substance abuse, contributed to the breakup of the
marriage; (5) refusing to award him alimony; and (6) dividing the marital property
and giving Wife substantially more marital property. We affirm.

FACTS

Husband and Wife were married on September 21, 1991. Two children were born
of the marriage. Wife filed for divorce on April 17, 2014, on the grounds of
habitual drunkenness and physical cruelty. Wife requested sole custody of the
parties' minor daughter, child support, and for Husband to contribute to the
payment of uncovered medical expenses for their minor daughter. Wife did not
seek alimony, but sought a larger apportionment of the equitable distribution of the
marital property. She also requested reimbursement of attorney's fees and costs.

In his answer, Husband sought separate support and maintenance from Wife and
joint custody of their minor daughter. He sought equitable distribution of the
marital property and requested both parties waive any interest in the other's
retirement accounts. On October 13, 2014, Husband filed a motion to amend his
pleadings to seek alimony. In his amended answer, Husband alleged Wife
abandoned the marriage, requested that Wife be barred from receiving alimony,
and sought alimony from Wife.

On May 13, 2015, Wife filed a motion to amend her pleadings to request a divorce
on the ground of adultery, reimbursement of private investigator fees, and
termination of her obligation to pay a portion of the mortgage on the marital home.
Wife's motion was hand delivered to Husband on the same date.

A final hearing was held on May 18-19, 2015. The family court's final decree of
divorce was filed on July 10, 2015. Husband filed a motion for reconsideration.
Wife also filed a motion for reconsideration, modification, or amendment of the
final decree of divorce. The family court denied both motions. This appeal
followed.

STANDARD OF REVIEW

On appeal from the family court, this court reviews factual and legal issues de
novo. Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d 486, 486 (2018); Simmons
v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392
S.C. 381, 386, 709 S.E.2d 650, 651-52 (2011). Although this court reviews the
family court's findings de novo, we are not required to ignore the fact that the
family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 384-85, 709 S.E.2d at 651-52. "[D]e novo standard of review does not
relieve an appellant from demonstrating error in the [family] court's findings of
fact." Id. at 385, 709 S.E.2d at 652. Thus, "the family court's factual finding will
be affirmed unless [the] 'appellant satisfies this court that the preponderance of the
evidence is against the finding of the [family] court.'" Id. at 392, 709 S.E.2d at
655.

LAW/ANALYSIS

I. Amended Pleadings

Husband argues the family court erred in allowing Wife to amend the pleadings.
We disagree.

The South Carolina Rules of Civil Procedure, which are applicable to family court
pleadings, state:

If evidence is objected to at the trial on the ground that it
is not within the issue made by the pleadings, the court
may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence
would prejudice him in maintaining his action or defense
on the merits.

Rule 15(b), SCRCP; see Meehan v. Meehan, 407 S.C. 471, 480, 756 S.E.2d 398,
403 (Ct. App. 2014); Pool v. Pool, 329 S.C. 324, 327-28 & n. 5, 494 S.E.2d 820,
822 & n. 5 (1998). "The focal inquiry in allowing amendment of pleadings is
whether doing so will prejudice the opposing party." Pool, 329 S.C. at 328, 494
S.E.2d at 822.

Five days prior to the final hearing, Wife filed her motion to amend her pleadings
to request a divorce on the ground of adultery, reimbursement of private
investigator fees, and termination of her obligation to pay a portion of the
mortgage on the marital home. Her motion was hand-delivered to Husband on the
same date.
Husband argues on appeal that the family court should have denied Wife's request
to amend her pleadings or continued the matter until he could have answered the
amendment. He argues allowing Wife to amend her pleadings was unduly
prejudicial to him. He further asserts that for the family court to find he committed
adultery and then use that as a reason to deny him alimony and award Wife
attorney's fees and costs, including investigative fees, is "extremely unjust."

Husband did not file a response or make any written objection to the motion prior
to the hearing. During the first day of trial, Wife presented testimony from two
private investigators, Husband's alleged mistress, and herself about Husband's
adultery. Husband did not object to any of the testimony about the adultery or the
exhibits coming before the court. At the conclusion of the testimony about the
adultery, Wife asked for her previously-filed motion to amend her pleadings be
granted or that the pleadings be conformed to the evidence presented. Husband
objected to the court considering "that behavior," but not to "the testimony as to the
behavior." Husband's attorney stated:

[E]ven if we would have objected the [c]ourt would have
considered that because the issue of alimony is at issue so
it's not like we could have kept that out anyway. I think
regardless of whether it's asked for in the pleadings it can
be considered. Alimony is at issue, which is why I didn't
object to it because it was going to come in regardless.

The court found Husband had not objected to the evidence so it was tried without
objection, and the court granted Wife's motion to amend her pleadings. We find
the issue was tried by consent.

II. Adultery

Husband argues the family court erred in finding he committed adultery. We
disagree.

"Proof of adultery as a ground for divorce must be 'clear and positive and the
infidelity must be established by a clear preponderance of the evidence.'" Brown v.
Brown, 379 S.C. 271, 277-78, 665 S.E.2d 174, 178 (Ct. App. 2008) (quoting
McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct. App. 1987)).
"A 'preponderance of the evidence' is evidence which convinces as to its truth." Id.
at 278, 665 S.E.2d at 178 (quoting DuBose v. DuBose, 259 S.C. 418, 424, 192
S.E.2d 329, 331 (1972)). "Because of the 'clandestine nature' of adultery,
obtaining evidence of the commission of the act by the testimony of eyewitnesses
is rarely possible, so direct evidence is not necessary to establish the charge." Id.
(quoting Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct. App. 1987)).
"Accordingly, adultery may be proven by circumstantial evidence that establishes
both a disposition to commit the offense and the opportunity to do so." Id.

Husband argues Wife offered testimony from two private investigators who
testified Husband was seen at his alleged mistress' house on two separate
occasions, but neither investigator stated Husband spent the night at her house.
Therefore, he argues the family court's finding that he committed adultery was not
supported by a clear preponderance of the evidence.

At trial, Husband testified he had never spent the night at his alleged mistress'
house; however, the mistress testified he had spent the night there "maybe three,
two, three or four times." The private investigator testified he found Husband at
his alleged mistress' house in the early morning hours, exiting her house with a
coffee cup, having his own key to her house, and changing clothes at her house.
The alleged mistress further testified they take long walks together, she visited
Husband's mother in the hospital with him, and they talk on the phone on a regular
basis.

The court noted in its order that "[a]lthough [Husband] and [his alleged mistress]
denied an adulterous relationship, the court [did] not find their denials credible."
The court explained that Husband's truck was observed at the alleged mistress'
residence on at least two occasions, the alleged mistress testified Husband stayed
overnight at her home on two separate occasions, and Husband lived about ten
minutes away so there was no reason for him to stay at her house. Regardless, the
court found the parties had been separated in excess of one year; therefore, the
court granted Wife a divorce on the statutory ground of one year's continuous
separation, not on the ground of adultery. We find Husband failed to meet his
burden of showing this court the preponderance of the evidence is against the
finding of the family court. See Stoney, 422 S.C. at 595, 813 S.E.2d at 487
(holding the de novo standard of review "does not abrogate two long-standing
principles still recognized by our courts during the de novo review process: (1) a
trial judge is in a superior position to assess witness credibility, and (2) an
appellant has the burden of showing the appellate court that the preponderance of
the evidence is against the finding of the trial judge.").
III. Attorney's Fees and Costs

Husband argues the family court erred in awarding Wife attorney's fees and costs,
including investigative fees. We disagree.

"The award of attorney's fees in a domestic action rests within the sound discretion
of the family court." Reiss v. Reiss, 392 S.C. 198, 210, 708 S.E.2d 799, 805 (Ct.
App. 2011). The family court should consider four factors in deciding to award
attorney's fees and costs: "(1) the party's ability to pay his/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).

"Reimbursable expenses include reasonable and necessary expenses incurred in
obtaining evidence of a spouse's infidelity." Chastain v. Chastain, 381 S.C. 295,
306, 672 S.E.2d 108, 114 (Ct. App. 2009). If the court determines attorney's fees
and costs are appropriate, it should consider the following factors when
determining the amount to award: "(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." Glasscock v. Glasscock, 304 S.C. 158,
161, 403 S.E.2d 313, 315 (1991).

Husband argues the family court did not make specific findings of fact on the
record for each of the required factors although he does not specify which factors
the court did not address. He asserts Wife earns well over $100,000 annually
while he only earns approximately $60,000 annually. Husband requests this court
find the family court's award of attorney's fees and costs should be set aside, or in
the alternative, remanded to the family court for proper evaluation.

The family court noted Wife's attorney's fees were $24,542.01 and her private
investigator fees were $2,512.25. Husband's attorney's fees were $6,050. The
court then properly considered the appropriate factors when deciding to award
fees: (1) both parties were gainfully employed and can pay their attorney's fees; (2)
Wife obtained beneficial results in that she kept her retirement accounts, obtained
an equitable interest in the marital assets, and established Husband contributed to
the breakup of the marriage; (3) Wife's financial declaration states she has monthly
expenses of $6,095.50 and Husband's financial declaration states he has monthly
expenses of $6,257; however, the court questioned the accuracy of Husband's
expenses; and (4) the only testimony about the effect of the fees on the parties'
standard of living was that Wife still owed money to her attorney. The court also
considered the factors for determining the amount of fees and costs to award: (1)
the case was not extremely difficult; (2) the fees incurred by Wife were reasonable;
(3) both parties' attorneys practice extensively in family court; (4) Wife obtained
beneficial results; and (5) the fees Wife's attorney charged are customary in the
area. Therefore, the court ordered Husband to pay Wife's private investigator fees
of $2,512.25 and contribute $6,500 toward Wife's attorney's fees.

We find the court did not make a specific findings as to the time devoted to the
case or the contingency of compensation. Also, the court should not have
considered Wife's retention of her retirement benefits in awarding attorney's fees.
However, under our own view of the preponderance of the evidence, we find Wife
is entitled to attorney's fees and costs, and Husband has failed to show the
preponderance of the evidence is against the finding of the family court.

IV. Husband's Conduct

Husband argues the family court erred in determining his conduct, including
physical cruelty and habitual substance abuse, contributed to the breakup of the
marriage. We disagree.

"[M]arital misconduct is an appropriate consideration when apportioning the
marital estate." Dixon v. Dixon, 334 S.C. 222, 235, 512 S.E.2d 539, 546 (Ct. App.
1999); see S.C. Code Ann. § 20-3-620(B)(2) (2014) (requiring the family court to
consider when apportioning the marital estate "marital misconduct or fault of either
or both parties, whether or not used as a basis for a divorce as such, if the
misconduct affects or has affected the economic circumstances of the parties, or
contributed to the breakup of the marriage"). "Fault is an appropriate factor for
consideration in determining alimony in cases where the misconduct affected the
economic circumstances of the parties or contributed to the breakup of the
marriage." Smith v. Smith, 327 S.C. 448, 463, 486 S.E.2d 516, 523-24 (Ct. App.
1997).

Husband argues the family court erred in finding his conduct, including habitual
substance abuse and physical abuse, contributed to the cause of the breakup of the
marriage because Wife never testified she was in fear of her life or fear of serious
bodily harm and the allegations of substance abuse were completely unfounded.
As a result, Husband asserts the family court erred in finding he was not entitled to
alimony and awarding Wife attorney's fees and costs, including investigative fees.
He requests this court set aside the family court's findings, or in the alternative,
remand the case to the family court.

The family court stated that although it did not find Husband's and his alleged
mistress' denials of adultery to be credible, the court found the parties had been
separated for more than one year, so it awarded Wife a divorce on the statutory
ground of one year's continuous separation. The court also stated it found
Husband's "mistreatment of [Wife] and his abuse of alcohol contributed to the
breakup of the parties' marriage." Although the court made these findings and
Husband did not request alimony in his initial pleadings, the court determined
Husband was not entitled to alimony based on its evaluation of the thirteen factors
found in subsection 20-3-130(C), as discussed thoroughly in the next issue. Also,
as to attorney's fees and costs, the court determined Wife was entitled to an award
based on the factors found in E.D.M., 307 S.C. at 476-77, 415 S.E.2d at 816, and
Glasscock, 304 S.C. at 161, 403 S.E.2d at 315, as discussed in the previous issue.
We find Husband failed to show the preponderance of the evidence is against the
finding of the family court, and the family court's finding that Husband contributed
to the breakup of the marriage had little effect on the court's determination as to
alimony and attorney's fees and costs.

V. Alimony

Husband argues the family court erred in failing to award him alimony. We
disagree.

"Alimony is a substitute for the support normally incidental to the marital
relationship." Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423
(2014). "Generally, alimony should place the supported spouse, as nearly as is
practical, in the same position he or she enjoyed during the marriage." Id. (quoting
Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001)).

Subsection 20-3-130(C) of the South Carolina Code (2014) provides the family
court must consider and give appropriate weight to the following factors when
deciding to award alimony:

(1) the duration of the marriage together with the ages of
the parties at the time of the marriage and at the time of
the divorce . . . ; (2) the physical and emotional condition
of each spouse; (3) the educational background of each
spouse . . . ; (4) the employment history and earning
potential of each spouse; (5) the standard of living
established during the marriage; (6) the current and
reasonably anticipated earnings of both spouses; (7) the
current and reasonably anticipated expenses and needs of
both spouses; (8) the marital and nonmarital properties of
the parties . . . ; (9) custody of the children . . . ; (10)
marital misconduct or fault of either or both parties . . . ;
(11) the tax consequences to each party as a result of the
particular form of support awarded; (12) the existence
and extent of any support obligation from a prior
marriage or for any other reason of either party; and (13)
such other factors the court considers relevant.

Subsection 20-3-130(A) (2014) provides that "[n]o alimony may be awarded a
spouse who commits adultery before the earliest of these two events: (1) the formal
signing of a written property or marital settlement agreement or (2) entry of a
permanent order of separate maintenance and support or of a permanent order
approving a property or marital settlement agreement between the parties."

Husband argues the family court should have awarded him alimony because Wife
makes more money than he does; he quit his job to allow Wife to take a more
lucrative job in Atlanta; he does not have the ability to earn more money at his
current job because his employer no longer allows him to work overtime; there was
no evidence presented at trial that the adultery was a factor in the breakup of the
marriage; and there was no evidence presented at trial that Husband habitually
abused alcohol or that he assaulted Wife. Therefore, Husband requests this court
set aside the family court's findings or remand the case to the family court.

In its order, the family court properly considered all thirteen factors set forth in
subsection 20-3-130(C). The court found: (1) the parties had been married for
almost 24 years; (2) neither party had significant health problems; (3) no testimony
was presented regarding the need for either party to have additional training or
education to achieve their respective income potential; (4) both parties were
employed and earning a salary; (5) the parties had a comfortable standard of living
during their marriage and had no debt; (6) both parties had the potential to earn
more money; (7) both parties claimed similar monthly living expenses, but the
court found some of Husband's expenses to be inflated or incorrect; (8) the parties'
marital property included the marital home, joint bank accounts, their vehicles,
other bank accounts, property in Silver, South Carolina, and their retirement
accounts, and the only non-marital property was Wife's new home; (9) Wife had
custody of the parties' daughter; (10) Husband's conduct led to the breakup of the
marriage and the court found Husband's denial of adultery to not be credible; (11)
there was no testimony regarding the tax consequences to either party; (12) neither
party had any support obligations from a prior marriage; and (13) Husband was
capable of supporting himself without financial assistance from Wife, the financial
declaration submitted by Husband was inaccurate and did not reflect Husband's
actual expenses, and Husband's adultery barred him from an award of alimony.
Based on our view of the preponderance of the evidence, we find Husband failed to
show the preponderance of the evidence is against the findings of the family court.
Thus, we affirm the denial of alimony.

VI. Marital Property

Husband argues the family court erred in dividing the marital property and giving
Wife substantially more marital property. We disagree.

"Marital property includes all real and personal property the parties acquired
during the marriage and owned as of the date of filing or commencement of marital
litigation." Brown, 379 S.C. at 281, 665 S.E.2d at 180; S.C. Code Ann. § 20-3-630
(2014). "The ultimate goal of apportionment is to divide the marital estate, as a
whole, in a manner which fairly reflects each spouse's contribution to the economic
partnership and also the effect on each of the parties of ending that partnership."
Id. "The doctrine of equitable distribution is based on a recognition that marriage
is, among other things, an economic partnership." Mallett v. Mallett, 323 S.C. 141,
150, 473 S.E.2d 804, 810 (Ct. App. 1996). "Upon dissolution of the marriage,
property acquired during the marriage should be divided and distributed in a
manner which fairly reflects each spouse's contribution to its acquisition,
regardless of which spouse holds legal title." Id.

Subsection 20-3-620(B) of the South Carolina Code (2014) provides that the
family court is required to consider the following fifteen statutory factors in
making a final equitable apportionment of the marital estate:

(1) the duration of the marriage and the ages of the
parties at the time of the marriage and at the time of the
divorce; (2) marital misconduct or fault of either or both
parties, if the misconduct affects or has affected the
economic circumstances of the parties or contributed to
the breakup of the marriage; (3) the value of the marital
property and the contribution of each spouse to the
acquisition, preservation, depreciation, or appreciation in
value of the marital property, including the contribution
of the spouse as homemaker; (4) the income of each
spouse, the earning potential of each spouse, and the
opportunity for future acquisition of capital assets; (5) the
health, both physical and emotional, of each spouse; (6)
either spouse's need for additional training or education
in order to achieve that spouse's income potential; (7) the
nonmarital property of each spouse; (8) the existence or
nonexistence of vested retirement benefits for either
spouse; (9) whether separate maintenance or alimony has
been awarded; (10) the desirability of awarding to the
spouse having custody of any children the family home
as part of equitable distribution or the right to live in it
for reasonable periods; (11) the tax consequences to
either party as a result of equitable apportionment; (12)
the existence and extent of any prior support obligations;
(13) liens and any other encumbrances on the marital
property and any other existing debts; (14) child custody
arrangements and obligations at the time of the entry of
the order; and (15) any other relevant factors that the
family court expressly enumerates in its order.

Husband argues Wife's retirement accounts should have been considered to be
marital property. He admits he did not request a portion of Wife's retirement
accounts in his pleadings, but states he brought the issue to the court's attention
during his cross examination by opposing counsel. At the close of the trial,
Husband requested that he be allowed to amend his pleadings to conform to the
evidence. The court did not grant or deny the request, but stated it knew what was
in the pleadings and would consider everything that was presented. Finally,
Husband argues the equitable apportionment worksheet should have been omitted
from the divorce decree because it was inaccurate. He asserts he should not have
been given credit for two accounts that belong to the parties' daughter; Wife should
not have been given credit for the parties' son's student loan; and the Silver
property should have been given the tax assessor's valuation of the property. As a
result, he requests this court set aside the family court's findings, or in the
alternative, remand the case to the family court.

Husband also argues the family court should have allowed him to amend his
pleadings pursuant to Rule 15(b) of the South Carolina Rules of Civil Procedure to
conform to the evidence offered about Wife's retirement accounts. We find Rule
15(b) is inapplicable here because in his answer, Husband specifically requested
both parties waive any interest in the other's retirement accounts. Our courts have
held Rule 15(b) covers two situations:

First, if an issue not raised by the pleadings is tried by
express or implied consent of the parties the court may
permit amendment of the pleadings to reflect the issue.
Second, if a party objects to the introduction of evidence
as not being within the pleadings the court may permit
amendment of the pleadings subject to a right to grant a
continuance if necessary.

Collins Entm't Corp. v. Coats & Coats Rental Amusement, 355 S.C. 125, 132, 584
S.E.2d 120, 124 (Ct. App. 2003), aff'd, 368 S.C. 410, 629 S.E.2d 635 (2006)
(quoting Sunvillas Homeowners Ass'n, Inc. v. Square D Co., 301 S.C. 330, 334,
391 S.E.2d 868, 871 (Ct. App. 1990)). Here, the issue prompting Husband's
motion to amend was raised in his answer when he requested both parties waive
any interest in the other's retirement accounts; therefore, the first situation does not
apply. The second situation also does not apply because no objection was made as
to the evidence being outside the pleadings; thus, the family court could not have
permitted an amendment. Additionally, in the final decree of divorce, the family
court found Husband did not present sufficient evidence at the hearing by which
the court could make a determination on how to distribute the parties' retirement
accounts. Therefore, any amendment would have been futile.

Further, we find the family court properly considered all fifteen factors for
equitable distribution in its order. The court found: (1) the parties had been
married for almost 24 years, were married when they were 25 years old, and at the
time of the divorce, Husband was 48 years old and Wife was 47 years old; (2)
Husband was at fault for the breakup of the marriage; (3) the value of the marital
property was set forth in the equitable apportionment worksheet and both parties
contributed to the acquisition of the marital estate; (4) Wife earned $117,000 per
year and Husband earned $66,000 per year and both parties had the ability to earn
more money at their jobs; (5) neither party had any significant health problems; (6)
no testimony was presented regarding the need for either party to have additional
training or education to achieve their respective income potential; (7) the only non-
marital property was Wife's new home; (8) Wife had two retirement accounts with
$231,291 in one and $86,148 in another, and Husband had two retirement accounts
with $38,000 in one and $15,122.82 in another; (9) no spousal support was
awarded; (10) neither party wanted to retain possession of the marital home; (11)
no testimony was presented about the tax consequences to either party; (12) neither
party had support obligations from prior marriages; (13) the parties had a lien on
the marital home and a student loan for their son; (14) Wife has had custody of the
parties' daughter since their separation; and (15) the marital assets should be
equally divided between the parties. In addition, Husband was required to
refinance the house and pay Wife her equitable interest in the home, each party
was to keep their respective retirement accounts as their sole property, the parties
would keep the personal property in his or her possession, each person would keep
their respective vehicles, the remaining property including the accounts would be
distributed as set forth in the equitable apportionment worksheet, the parties would
equally divide the value of the property in Silver, South Carolina, and Husband
would have sole ownership of the daughter's educational fund. Based on our view
of the preponderance of the evidence, we find Husband failed to show the
preponderance of the evidence is against the findings of the family court. Thus, we
affirm the division of the marital property.

CONCLUSION

Accordingly, the family court's order is

AFFIRMED.

SHORT, THOMAS, and HILL, JJ., concur.