Brown v. Brown

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

Robert Brown, Respondent,

v.

Mae Ola Brown, Appellant.

Appeal From Orangeburg County

 Dale Moore Gable, Family Court Judge

Unpublished Opinion No. 2008-UP-165

Submitted March 3, 2008 – Filed March 12,
2008

AFFIRMED

Lawrence Keitt, of Orangeburg, for Appellant.

W. D. Rhoad, of Bamberg, for Respondent.

PER CURIAM:  In
this domestic action, Mae Ola Brown (Wife) appeals the family court’s
order requiring Robert Brown (Husband) to pay alimony retroactive to April 1,
2006.  Wife argues Husband owes her alimony dating back to a temporary divorce hearing on January 15, 2004.  Additionally, Wife argues the family court failed to set forth specific findings of
fact and conclusions of law in deciding not to award retroactive alimony as
required under Rule 26(a) of the South Carolina Rules of Family Court.  We affirm.[1] 

FACTS

Husband and Wife were married on November 7, 1970.  After thirty
two years of marriage, the couple separated in September of 2003.  Husband and
Wife had two children born out of the marriage who are now emancipated.  During
the marriage, Husband worked as a plumber and as of the date of the divorce
hearing, Husband had been working for himself for ten years.  Since 1979, Wife
has worked for Farmers and Merchants Bank in Holly Hill.  Wife and Husband testified
Husband paid their bills during the marriage, including the house payment until
he left their marital home.  Since Husband left the marriage, Wife testified
she has supported herself and borrowed money from family members. 

On September 3, 2003, Husband filed for divorce on the basis of
adultery and sought an equitable division of marital property.  Wife answered
and counterclaimed seeking permanent and temporary alimony.  Further, she
denied Husband’s adultery allegations.  Wife alleged adulterous conduct by
Husband and also sought an equitable division of the marital estate and alimony. 
In a temporary order dated January 26, 2004, the family court did not rule on
whether to award temporary alimony but held this ruling in abeyance pending a
final hearing.  

In its final decree of divorce on April 17, 2006, the family court
found Wife proved by clear and convincing evidence that Husband committed
adultery and granted her a divorce on this ground.  The family court found Husband
failed to prove his allegations of Wife’s adultery and denied granting him a
divorce on the basis of Wife’s adultery or on the ground of one year continuous
separation.  Additionally, the family court ordered Husband to pay $600 per
month in alimony to Wife, retroactive to April 1, 2006.  The family court also
granted Wife exclusive possession of the marital home and ordered Husband to
pay $7,000 in attorney’s fees and costs.  This appeal follows.

STANDARD OF REVIEW

On
appeal from a family court order, this court has authority to correct errors of
law and find facts in accordance with our own view of the preponderance of the
evidence.  E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814
(1992).  However, “[q]uestions concerning alimony rest with the sound
discretion of the [family] court, whose conclusions will not be disturbed
absent a showing of abuse of discretion.”  Kelley v. Kelley, 324 S.C.
481, 485, 477 S.E.2d 727, 729 (Ct. App. 1996).  The family
court abuses its discretion when factual findings are without evidentiary
support or a ruling is based upon an error of law.  Smith v. Doe, 366
S.C. 469, 474, 623 S.E.2d 370, 372 (2005).

DISCUSSION

I. Denial of retroactive
alimony

Wife argues the
family court abused its discretion in denying her retroactive alimony to the
date of the temporary hearing on January 15, 2004.  We disagree.

“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 of the
family court.”  Thornton v. Thornton, 328 S.C. 96, 115, 492
S.E.2d 86, 96 (1997).  “Alimony is a substitute for the support which is
normally incident to the marital relationship.”  Johnson v. Johnson, 296
S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988)  Factors to be
considered in making an alimony award include: (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 and needs 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 other factors the court considers relevant. S.C. Code
Ann. § 20-3-130(C) (Supp. 2007).  Furthermore, when determining an alimony
award, courts may consider the amount received in equitable distribution.  Josey
v. Josey, 291 S.C. 26, 33, 351 S.E.2d 891, 895-96 (Ct. App. 1986). 

On
January 15, 2004, Wife requested alimony during the temporary hearing.  The
family court denied her request based on Husband’s allegations of adultery, and
deferred ruling on whether to award retroactive alimony until the final
hearing.  Wife contends two years and three months lapsed between the initial
hearing and the final hearing, and during that time she borrowed money from her
family to help support herself. 

In
its temporary order, the family court awarded Wife temporary use and possession
of the marital home and its contents.  Thereafter, in its final decree, the
family court found “the parties enjoyed a reasonable standard of living” during
their marriage.  In addition to equitably dividing the marital estate, the
family court noted none of the marital property had any debt associated with it
and granted Wife ownership of the marital home.  Furthermore, the family court
found Wife had inherited an interest in three acres of land with her brothers
from her mother’s estate which was nonmarital property valued at $19,000.  The
family court also awarded Wife $7,000 in attorney’s fees and costs.

In
its final ruling, the family court found Wife had a monthly income of $1,375. 
Wife testified she and Husband filed separate tax returns for the past thirteen
years, and in recent years Wife filed as a single, unmarried person.  In
addition, Wife admitted she and Husband had lived “separate lives” for nearly
ten years prior to their divorce.  Though Wife alleged she borrowed money from
her family to make ends meet after Husband moved out, nothing in the record
indicates the total amount loaned or the amount Wife needed to repay.  Moreover,
in regards to Wife’s monthly expenses at the time the couple separated, Wife
testified the couple’s marital home was paid off, but she still incurred
monthly expenses from electric and insurance bills, laundry and dry cleaning,
and life and health insurance.[2] 
Specifically, Wife testified her monthly bills included $70 in home insurance
and between $300 and $350 in utility bills.  However, we note Wife’s financial
declarations, though discussed in testimony, were not included as part of the
record on appeal.  Wife, as appellant, has the burden of presenting a
sufficient record to allow review. See, e.g., Helms Realty, Inc. v.
Gibson-Wall Co., 363 S.C. 334, 339, 611 S.E.2d 485, 447-48 (2005); Harkins
v. Greenville County, 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000). 

We
find the family court properly considered the factors set forth in section
20-3-130(C) in deciding to award alimony and determining when payments would
begin.  Therefore, based on the family court’s consideration of the couple’s standard
of living established during the marriage; each parties’ current and reasonably
anticipated earnings; marital and nonmarital properties of the parties; and the
amount each party received in the equitable distribution of marital property,
we find the family court did not abuse its discretion in denying Wife
retroactive alimony.  Additionally, we note the family court based its alimony
award “upon the length of the marriage, the relative income of the parties and
those other factors necessary to be considered in awarding alimony . . . .”  Accordingly,
we affirm the family court’s order
requiring Husband pay $600 per month in alimony to Wife, retroactive only to
April 1, 2006. 

II.  Rule 26(a) of the South Carolina Rules of Family Court

Wife argues the family
court failed to set forth specific findings of facts and conclusions of law in
deciding not to award retroactive alimony as required under Rule 26(a), SCRFC. 
Instead, Wife argues the family court summarily stated it declined to award
retroactive alimony.  We disagree. 

Rule 26(a), SCRFC,
provides: “An order or judgment pursuant to an adjudication in a domestic
relations case shall set forth the specific findings of fact and conclusions of
law to support the court’s decision.”  However, we note not every violation of
Rule 26(a) requires reversal.  See,
e.g., Holcombe v. Hardee, 304
S.C. 522, 524, 405 S.E.2d 821, 822 (1991); Bowers v. Bowers, 349 S.C.
85, 98-99, 561 S.E.2d 610, 617 (Ct. App. 2002); Griffith v. Griffith,
332 S.C. 630, 646-47, 506 S.E.2d 526, 535 (Ct. App. 1998).  “[W]hen an order
from the family court is issued in violation of Rule 26(a), SCRFC, the
appellate court ‘may remand the matter to the trial court or, where the record
is sufficient, make its own findings of fact in accordance with the
preponderance of the evidence.’” Griffith, 332 S.C. at 646-47, 506 S.E.2d
at 535 (quoting Holcombe v. Hardee, 304 S.C. at 524, 405 S.E.2d at 822).
 In the case sub judice, we find the record on appeal sufficient
for this court to make its own findings.

In
asserting the family court erred by failing to make the specific findings of
fact as required by Rule 26(a), Wife references the family court’s order
rendered in response to her notice of motion and motion for reconsideration.   The
order denying Wife’s motion to reconsider references “matters appearing of
record in the file . . . .”  Therefore, we find it unnecessary for this order
to set forth factual findings and conclusions of law in light of the original
divorce decree’s specific findings of fact and conclusions of law to support
its decision.  Furthermore, as aforementioned, we found the family court, in
the final divorce decree, properly considered the factors set forth in section
20-3-130(C) in its final divorce decree decision of whether to award alimony
and when payments would begin.  For that reason, the family court satisfied
Rule 26(a), SCRFC, and the divorce decree was part of the record on appeal. Therefore,
we find sufficient facts in the record support the family court’s order denying
Wife retroactive alimony.  Accordingly, we affirm the family court’s order in
response to Wife’s motion for reconsideration. 

CONCLUSION

We find the
family court properly considered the alimony factors set forth by statute and
case law in setting an alimony award and in determining when such payments
should begin.  Therefore we find the family court did not abuse its discretion
in denying Wife retroactive alimony to the date of the temporary hearing. 
Additionally, we believe the family court satisfied Rule 26(a), SCRFC in its
final decree of divorce, which was part of the record on appeal.  Accordingly,
the order of the family court is

AFFIRMED.

ANDERSON, SHORT and THOMAS, JJ., concur.

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

[2] Wife testified she took out a loan from the bank to
“help pay my bills,” but indicated the loan had only one year remaining before
she paid it off.