Budreau v. Budreau

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

Carole Leigh Budreau, Respondent,

v.

Lawrence Thomas Budreau, Appellant.

Appellate Case No. 2011-185426

Appeal From Greenwood County
W. Marsh Robertson, Family Court Judge

Unpublished Opinion No. 2012-UP-516
Submitted August 1, 2012 – Filed September 12, 2012

AFFIRMED

Billy J. Garrett, Jr., of the Garrett Law Firm, P.C., of
Greenwood, and Debra S. Tedeschi, of the Tedeschi Law
Firm, P.A., of Columbia, for Appellant.

Scarlet B. Moore, of Scarlet B. Moore, of Greenville, for
Respondent.

PER CURIAM: Husband appeals the family court's order granting Wife a
divorce on the grounds of adultery, arguing (1) insufficient evidence of inclination
exists; (2) the award of alimony should be reversed because insufficient evidence
supports imputing an annual income of $48,000.00 to Husband; and (3) the order
contains insufficient evidence to support awarding Wife attorney fees. We affirm1
pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the court erred in finding sufficient evidence of inclination:
Gorecki v. Gorecki, 387 S.C. 626, 633, 693 S.E.2d 419, 422 (Ct. App. 2010)
("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."); Brown v. Brown, 379 S.C. 271,
278, 665 S.E.2d 174, 178 (Ct. App. 2008) ("[A]dultery may be proven by
circumstantial evidence that establishes both a disposition to commit the offense
and the opportunity to do so."); Bodkin v. Bodkin, 388 S.C. 203, 212, 694 S.E.2d
230, 235 (Ct. App. 2010) ("Because the family court is in a superior position to
judge the witnesses' demeanor and veracity, its finding should be given broad
discretion." (citation and internal quotation marks omitted)); Gorecki, 387 S.C. at
633-34, 693 S.E.2d at 423 (finding when "the evidence is conflicting and
susceptible of different inferences, it becomes the family court's duty to determine
not only the law of the case but the facts as well because the family court observed
the witnesses and could determine how much credence to give each witness's
testimony"); McElveen v. McElveen, 332 S.C. 583, 599, 506 S.E.2d 1, 9 (Ct. App.
1998) (affirming the family court's finding that the husband failed to present
sufficient evidence to prove his wife committed adultery, and noting, "the able trial
[court], which heard several days of testimony and observed first-hand the
demeanor of the many witnesses in this case, was in a better position than this
court to determine the credibility of those witnesses").

2. As to whether the court erred in imputing an annual income of $48,000.00 to
Husband: Grumbos v. Grumbos, 393 S.C. 33, 42, 710 S.E.2d 76, 81 (Ct. App.
2011) ("It is well-settled in South Carolina that an award of alimony should be
based on the payor spouse's earning potential rather than merely his current,
reported earnings." (citation and internal quotation marks omitted)); id. ("If the
obligor spouse has the ability to earn more income than he is in fact earning, the
court may impute income according to what he could earn by using his or her best
efforts to gain employment equal to his capabilities, and an award of alimony
based on such imputation may be a proper exercise of discretion even if it exhausts
the obligor spouse's actual income." (citation and internal quotation marks
omitted)); Spreeuw v. Barker, 385 S.C. 45, 65-66, 682 S.E.2d 843, 853-54 (Ct.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
App. 2009) (upholding the income the family court imputed to the father in a child
support case because the veracity of the father's financial declaration was
questionable and the family court's calculation of income was supported by
evidence).

3. As to whether the order contains sufficient evidence to support the award of
attorney fees: Buist v. Buist, Op. No. 4982 (S.C. Ct. App. filed June 6, 2012)
(Shearouse Adv. Sh. No. 19 at 124, 135-36) (finding the issue of whether the
family court made sufficient findings of fact regarding the Glasscock2 factors was
not preserved because the husband did not object to the wife's affidavit of attorney
fees).

AFFIRMED.

SHORT, KONDUROS, and LOCKEMY, JJ., concur.

2
Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991).