Robinson v. Robinson

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

David Robinson, Appellant,

v.

Evelyn R. Robinson, Respondent.

Appellate Case No. 2011-192548

Appeal From Greenville County
Billy A. Tunstall, Jr., Family Court Judge

Unpublished Opinion No. 2014-UP-193
Heard April 7, 2014 – Filed May 7, 2014

AFFIRMED

Andrew G. Goodson, of Younts, Alford and Goodson, of
Fountain Inn, for Appellant.

Marion W. Fore, Jr., and J. Falkner Wilkes, both of
Greenville, for Respondent.

PER CURIAM: This action arises out of the divorce of David Robinson
(Husband) and Evelyn Robinson (Wife). Husband appeals the family court's order
and decree of divorce, arguing the family court erred in: (1) equitably distributing
the parties' marital property; (2) awarding Wife permanent periodic alimony; and
(3) awarding Wife attorney's fees. We affirm.

FACTS/PROCEDURAL HISTORY

Husband and Wife were married in August 1960. In early 2009, Wife learned that
Husband was having an affair. In July 2009, Husband filed a complaint for a
decree of separate maintenance and support, requesting an equitable division of the
marital property and debts. The parties separated in August in 2009, when
Husband moved out of the marital home. That same month, Wife filed an answer
and counterclaim, seeking a divorce on the ground of Husband's adultery, a
restraining order, alimony, division of the marital property and debt, and attorney's
fees and costs.

The family court entered an order and decree of divorce, granting Wife a divorce
on the ground of Husband's adultery. In the order, the family court awarded Wife
sixty-five percent of the marital estate, including the marital home valued at
$205,000 and all of the furnishings within the home. In addition, the family court
awarded Wife $700 per month in permanent periodic alimony and $6,000 in
attorney's fees. Husband filed a motion for reconsideration, which the family court
denied. This appeal followed.

LAW/ANALYSIS

I. Equitable Division

Husband challenges the family court's equitable division of the marital property on
several grounds.1 We address each of his arguments in turn.

1
In his appellate brief, Husband argued the family court failed to consider the
value of a detached garage adjacent to the marital home when dividing the marital
property. At oral argument, Husband's counsel conceded the appraised value of
the marital home, which was accepted by the family court, included the value of
the detached garage. Therefore, we exclude this matter from our discussion of the
equitable division of the marital property. See Barrow v. Barrow, 394 S.C. 603,
610 n.3, 716 S.E.2d 302, 306 n.3 (Ct. App. 2011) (excluding matters conceded at
oral argument from discussion of the issues on appeal).
Husband initially argues the family court erred in failing to identify and value the
contents of the marital home. Throughout the divorce proceedings, the parties
heavily disputed the identity and value of the contents of the marital home. In the
final order, the family court did not specify the contents of the marital home that
were marital property, nor did it value the contents individually or collectively.
Instead, the family court summarily disposed of the issue by awarding Wife the
marital home and "all the furnishings therein." In his motion for reconsideration,
Husband challenged the order solely on the ground the family court failed to
equalize the overall division of marital property. Husband did not request the
family court to specifically identify and value the contents of the marital home.
See Browder v. Browder, 382 S.C. 512, 523, 675 S.E.2d 820, 826 (Ct. App. 2009)
(finding wife's argument that the family court erred in failing to value certain items
when equitably distributing the marital estate was not preserved for appellate
review where the issue was not raised to or ruled upon by the trial court).
Accordingly, we find Husband failed to preserve this issue for appellate review.

Next, Husband argues the family court erred in equitably dividing the marital
property because it failed to address the fifteen factors listed in section 20-3-
620(B) of the South Carolina Code. Husband did not raise this issue in his motion
for reconsideration; therefore, it is not preserved for appellate review. See Bodkin
v. Bodkin, 388 S.C. 203, 227, 694 S.E.2d 230, 243 (Ct. App. 2010) ("An issue may
not be raised for the first time on appeal. In order to preserve an issue for appeal, it
must be raised to and ruled upon by the trial court." (citation and quotation marks
omitted)).

Lastly, Husband contends the family court erred in failing to divide the marital
property equally between the parties. The instant case presents circumstances that
allowed the family court to "tilt[ ] the equitable division scale in favor of one
spouse." Avery v. Avery, 370 S.C. 304, 312, 634 S.E.2d 668, 672 (Ct. App. 2006).
The principal asset that "tipped" the equitable division in favor of Wife is the
marital home, which was valued at $205,000. Although Husband was responsible
for paying the mortgage on the marital home during the marriage, Wife testified
she paid the parties' other bills and expenses. Additionally, Husband testified he
recently purchased a $268,000 home for his paramour and himself, and Wife stated
she would not have anywhere to live if not for the marital home. Finally,
Husband's affair led to the breakup of the marriage. Adultery, by itself, does not
justify a lopsided division of the marital estate. See Doe v. Doe, 370 S.C. 206, 215,
634 S.E.2d 51, 56 (Ct. App. 2006) (stating that while marital fault is an appropriate
consideration for equitable apportionment it does not justify a severe penalty).
However, Husband's adultery was one of several factors that supported the fifteen
percent equitable division differential between Husband's portion of the marital
property and Wife's portion. Because the overall apportionment of the marital
property was fair, we find the family court did not abuse its discretion in equitably
dividing the property. See Jenkins v. Jenkins, 345 S.C. 88, 100, 545 S.E.2d 531,
537 (Ct. App. 2001) ("On review, we look to the fairness of the overall
apportionment; if the end result is equitable, it is irrelevant that we might have
weighed specific factors differently than the family court."); id. ("This court will
affirm the family court judge if it can be determined that the judge addressed the
factors under § 20-7-472 [now section 20-3-620(B)] sufficiently for us to conclude
he was cognizant of the statutory factors.").

II. Alimony

Husband argues the family court erred in awarding Wife permanent periodic
alimony. He asserts the family court placed excessive weight on the factor of
marital fault when determining alimony. He further claims Wife overvalued
certain expenses on her financial declaration and she failed to include temporary
alimony as income. We disagree.

When determining alimony, the family court stated it considered all the factors
listed in section 20-3-130(C) and was especially mindful of the following factors:
Wife's age, Wife's inability to increase her income, Husband's adulterous conduct,
which ultimately led to the break-up of the marriage, the fact that Husband's
income was greater than Wife's income, and Wife's financial needs. Husband's
adulterous conduct was one of five factors the family court assigned additional
weight in determining alimony. Cf. Fuller v. Fuller, 370 S.C. 538, 550–51, 636
S.E.2d 636, 643 (Ct. App. 2006) (reversing an alimony award where the family
court found the husband was able to pay and the wife needed alimony, but it did
not address the other factors, particularly the wife's considerable nonmarital
assets). The family court did not assign disproportionate weight to Husband's
adultery or consider it dispositive when determining alimony. See Bodkin, 388
S.C. at 216, 694 S.E.2d at 237 ("Marital fault is only one of the factors the family
court must consider in making an award of alimony." (citation and quotation marks
omitted)).

Further, Husband reported a monthly income of $6,618, in comparison to Wife's
monthly income of $2,476. Wife, a retired teacher, testified she could not return to
work because she was too old and she was no longer licensed to teach. Although
Husband argued Wife overvalued her monthly expenses, he did not identify which
of the expenses were overvalued or offer any explanation. Wife testified her
monthly expenses totaled $3,600, which was $1,124 more than her monthly
income. However, the family court did not award Wife enough alimony to meet
her estimated expenses. Instead, the family court awarded Wife only $700 in
monthly alimony. Finally, Wife testified Husband's affair led to the breakup of the
marriage. Because the family court considered all the factors under section 20-3-
130(C) and assigned appropriate weight to the relevant factors, we believe the
preponderance of the evidence supports the award of alimony. See Way v. Way,
398 S.C. 1, 10-11, 726 S.E.2d 215, 220-21 (Ct. App. 2012) (holding the
preponderance of the evidence supported the award of alimony where there was a
disparity between the parties' incomes and the family court adequately considered
the statutory factors in making its award).

III. Attorney's Fees

Husband argues the family court erred in awarding Wife attorney's fees. We
disagree.

Before the final hearing, Wife filed a motion to compel and the family court
ordered Husband to provide answers to interrogatories and to respond to requests
for production of documents. The family court's order on the motion to compel
notes Husband refused to provide answers or documents despite Wife's numerous
requests. See Bodkin, 388 S.C. at 223, 694 S.E.2d at 241 (recognizing parties may
become responsible for attorney's fees if they fail to cooperate and their behavior
prolongs the proceedings). Furthermore, the family court considered the
appropriate factors in deciding to award attorney's fees, including Wife having
prevailed on many issues and Husband having a substantially greater income than
Wife. See Bennett v. Rector, 389 S.C. 274, 284, 697 S.E.2d 715, 720–21 (Ct. App.
2010) (noting the family court should consider each party's ability to pay their fees,
the beneficial results obtained by the attorney, the parties' financial conditions, and
the fees' effect on the parties' standard of living). Moreover, the family court
exercised its discretion in awarding Wife only a percentage of her requested
attorney's fees. See Lewis v. Lewis, 400 S.C. 354, 372, 734 S.E.2d 322, 331 (Ct.
App. 2012) ("The decision to award attorney's fees is within the family court's
sound discretion, and although appellate review of such an award is de novo, the
appellant still has the burden of showing error in the family court's findings of
fact."). Accordingly, we find the family court did not abuse its discretion in
awarding Wife attorney's fees.
AFFIRMED.

FEW, C.J., SHORT and GEATHERS, JJ., concur.