Hawkins v. Hawkins

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

Wendell Leon
Hawkins, Appellant/Respondent,

v.

Elizabeth Leigh
Bannister Hawkins, Respondent/Appellant.

Appeal From Greenville County

Gerald C. Smoak, Jr., Family Court Judge

Unpublished Opinion No. 2010-UP-510

Submitted November 1, 2010 – Filed
November 30, 2010

AFFIRMED IN PART AND REVERSED IN PART

Joseph M. Ramseur, Jr., and Megan G. Sandefur, both of Greenville,
for Appellant/Respondent.

James T. McLaren and C. Dixon Lee, of Columbia, both for
Respondent/Appellant.

PER CURIAM: In this cross-appeal from the family court, Wendell
Leon Hawkins (Husband) asserts the family court erred in failing to require
reimbursement of temporary alimony and spousal support.  Husband further
asserts the family court erred in equitably apportioning the parties' assets
and debts, and in ordering Husband to pay attorney's fees to Elizabeth Leigh
Bannister Hawkins (Wife).  Wife also appeals, arguing the family court erred in
failing to include Husband's law practice as marital property for purposes of
equitable division.  We reverse[1] in part and affirm in part the family court's order pursuant to Rule 220(b),
SCACR, and the following authorities:

1.  As to whether the family court
erred in finding that Husband was not entitled to reimbursement of previously
paid temporary alimony and spousal support during the pendency of the
litigation, we reverse and find Husband is entitled to reimbursement of
previously paid temporary alimony and spousal support in the amount of $24,000: See S.C. Code Ann. § 20-3-130(A) (Supp. 2009) ("No 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."); Pruitt v. Pruitt, 389 S.C. 250,
273, 697 S.E.2d 702, 714-15 (Ct. App. 2010) (holding husband was
entitled to the reimbursement of alimony payments made after the wife's
adulterous activity, but not to alimony payments made prior to the adultery); see
also Griffith v. Griffith, 332 S.C. 630, 642, 506 S.E.2d 526, 532
(Ct. App. 1998) ("The establishment of adultery as a defense to alimony is
a bar to all alimony under section 20-3-130(A), and requires the reimbursement
of court-ordered temporary spousal support."); Watson v. Watson,
291 S.C. 13, 22-24, 351 S.E.2d 883, 889-90 (Ct. App. 1986) (reducing wife's
equitable distribution award by the amount of pendent lite support paid by the
husband where the husband established wife committed adultery at merits
hearing).    

2.  As to whether the family court
erred in equitably apportioning the parties' assets and debts, we find this
issue abandoned on appeal. See Pruitt, 389 S.C. at 269, 697
S.E.2d at 712 ("Short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.")
(internal quotation and citation omitted); Blanding v. Long Beach Mortg. Co., 379
S.C. 206, 224, 665 S.E.2d 608, 618 (Ct. App. 2008) (stating an issue first
raised in a motion to alter or amend the judgment is not preserved for review). 
Even if not abandoned, Husband failed to prove the debt incurred on the Chase
credit card was nonmarital.  See Pruitt, 389 S.C. at 259-60, 697
S.E.2d at 707 (asserting the court's equitable division of marital
property will not be disturbed on appeal absent an abuse of discretion); Wooten
v. Wooten, 364 S.C. 532, 547, 615 S.E.2d 98, 105 (2005)  ("When
a debt is incurred after the commencement of litigation but before the final
divorce decree, the family court may equitably apportion it as a marital debt
when it is shown the debt was incurred for marital purposes, i.e., for
the joint benefit of both parties during the marriage.") (citation
omitted); Mosley v. Mosley, Op No. 4759 (S.C. Ct. App. Filed Nov. 10,
2010) (Shearouse Adv. Sh. No. 46 at 41) ("[T]he court's broad scope of
review does not relieve the appellant of the burden of proving to this Court
that the family court committed error."). 

3.  As to whether the family court
erred in ordering Husband to pay $50,000 towards Wife's attorney's fees, we
affirm.  See Dickert v. Dickert, 387 S.C. 1, 10, 691 S.E.2d 448,
452-53 (2010) (finding whether to award attorney's fees is a matter within the sound discretion of the trial
court and will not be reversed on appeal absent an abuse of discretion); Susan R. v. Donald R., 389
S.C. 107, 117, 697 S.E.2d 634, 639-40 (Ct. App. 2010) ("A party's
fault in causing a divorce is not a factor to be
considered when awarding attorney's fees.") (internal quotation and
citation omitted);  Nienow v. Nienow, 268 S.C. 161, 172, 232 S.E.2d
504, 510 (1977) (holding award of attorney's fees was proper where there
was a financial disparity between the parties and the burden of attorney's fees
would necessarily decrease the wife's standard of living); E.D.M. v. T.A.M.,
307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992) ("In determining whether
an attorney's fee should be awarded, the following factors should be
considered: (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.") (internal citation omitted); Glasscock
v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) ("[T]he
six factors . . . in determining a reasonable attorney's fee:  (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.") (internal citation omitted). 

4.  As to whether the family court
erred in failing to identify Husband's interest in his law practice as marital
property subject to equitable division, we affirm.  See Dawkins v.
Dawkins, 386 S.C. 169, 172, 687 S.E.2d 52, 54 (2010) ("An
appellate court should approach an equitable division award with a presumption
that the family court acted within its broad discretion."); Dickert,
387 S.C. at 7, 691 S.E.2d at 451 (holding that due to the intangible nature of
the goodwill asset, "enterprise goodwill" in a professional practice
is not subject to equitable distribution); Donahue v. Donahue, 299
S.C. 353, 359, 384 S.E.2d 741, 745 (1989) (stating goodwill "attaches
to the person of the professional man or woman as a result of confidence in his
or her skill and ability . . . . It does not possess value or constitute an
asset separate and apart from the professional's person, or from his individual
ability to practice his profession. It would be extinguished in the event of
the professional's death, retirement or disablement."); Casey v. Casey,
293 S.C. 503, 504, 362 S.E.2d 6, 7 (1987) (recognizing the speculative nature
of goodwill and holding that goodwill dependent upon an owner's future earnings
could not be made part of the marital estate subject to equitable distribution.). 

Accordingly, the judgment herein is

AFFIRMED IN PART and REVERSED IN PART.

THOMAS, PIEPER, and GEATHERS, JJ., concur.

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