CourtListener 10155560•Durden v. Durden
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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
George A.
Durden, Appellant/Respondent,
v.
Shirley N.
Durden, Respondent/Appellant.
Appeal From Dorchester County
Robert N. Jenkins, Sr., Family Court
Judge
Unpublished Opinion No. 2009-UP-159
Submitted March 2, 2009 Filed March 31,
2009
AFFIRMED
George A. Durden, pro se, of Greenwood, for Appellant/Respondent.
David L. Devane, and Ben F. Mack, both of Summerville, for
Respondent/Appellant.
PER CURIAM: George A. Durden (Husband) and Shirley N.
Durden (Wife) both appeal the family courts final order, reducing Husbands
alimony to $325 per month and ordering each party responsible for their own
attorney fees and cost. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:
I. Husbands Appeal
1.
As to whether this court should defer to the factual findings of the family
court when this court has the right to review the evidence de novo: Ray v.
Ray, 374 S.C. 79, 83, 647 S.E.2d 237, 239 (2007) (holding this court has
the authority to find facts in accordance with its view of the preponderance of
the evidence, but this broad scope of review does not require this court to
disregard the findings of the family court who saw and heard the parties, and
is in a better position to evaluate their credibility).
2. As
to whether Wifes financial declaration reflects a true statement of her
financial position, and whether the trial court erred in: (1) considering Husbands
share of his disability retirement annuity as a source of income for awarding
alimony, (2) amending a draft of its final order, and (3) requiring Husband to
pay a 5% service fee on his alimony: McDavid v. McDavid, 333 S.C. 490, 497,
511 S.E.2d 365, 368-69 (1999) (holding any matter not raised and ruled upon by
the family court cannot be considered by this court on appeal).
3. As
to whether the family court erred in not eliminating alimony due to the Husbands
substantial change of circumstances: Eubank v. Eubank, 347 S.C. 367,
372, 555 S.E.2d 413, 415 (Ct. App. 2001) (The question of whether to increase
or decrease support due to changed circumstances is within the sound discretion
of the family court and such conclusions will not be disturbed on appeal absent
an abuse of discretion.).
4. As to whether
the family court erred in denying his request for retroactive alimony reduction: Thornton v. Thornton, 328 S.C. 96, 115, 492 S.E.2d 86, 96 (1997) (The
decision to order retroactive support rests within the sound discretion of the
family court and should not be reversed absent an abuse of discretion by the
family court.).
5. As to whether
the family court erred in denying his request for attorneys fees: Simpson
v. Simpson, 377 S.C. 527, 538, 660 S.E.2d 278, 284 (Ct. App. 2008) (The
award of attorneys fees is within the sound discretion of the family court and
absent an abuse of discretion, will not be disturbed on appeal.).
II. Wifes
Appeal
1.
As to whether the family court erred in reducing Husbands alimony payment to
Wife and in considering Wifes entitlements from the sale of the marital home
in its decision to reduce Husbands alimony: Eubank, 347 S.C. at 372,
555 S.E.2d at 415 (The question of whether to increase or decrease support due
to changed circumstances is within the sound discretion of the family court and
such conclusions will not be disturbed on appeal absent an abuse of
discretion.); Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174
(Ct. App. 2004) (holding the family court may consider several factors in its
determination to modify alimony, including the parties standard of living
during the marriage, each partys earning capacity, and the supporting spouses
ability to continue to support the other spouse); Blakely v. Blakely, 249
S.C. 623, 625, 155 S.E.2d 857, 858 (1967) (stating an error must be material
and prejudicial to the substantial rights of the appellant in order for an
alimony order to be reversible).
2.
As to whether the family court erred in denying Wifes request for an award of
attorneys fees: Simpson, 377 S.C. at 538, 660 S.E.2d at 284 (The award
of attorneys fees is within the sound discretion of the family court and
absent an abuse of discretion, will not be disturbed on appeal.).
AFFIRMED.[1]
HEARN, C.J., PIEPER and LOCKEMY, concur.
[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.
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