Kendig v. Kendig

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

Heidi Noel Kendig, Respondent,

v.

Arthur C. Kendig, M.D., Appellant.

Appellate Case No. 2015-002457

Appeal From Richland County
Dorothy Mobley Jones, Family Court Judge

Unpublished Opinion No. 2018-UP-213
Heard April 9, 2018 – Filed May 16, 2018

AFFIRMED AS MODIFIED

Katherine Carruth Goode, of Winnsboro, for Appellant.

Charles D. Lee, III, of McLaren & Lee, of Columbia, for
Respondent.

PER CURIAM: Arthur Kendig (Husband) appeals the family court's final order,
arguing the family court erred in (1) denying Husband's motion for mistrial and
making findings based on the family court's belief that Husband was disrespectful;
(2) failing to make a ruling on the issue of transportation of the parties' children;
(3) inequitably dividing the marital estate; (4) awarding Heidi Noel Kendig (Wife)
alimony of $7,000 per month and moving, personal, and vehicle expenses; (5)
ordering child support of $3,690 per month and requiring Husband to maintain life
insurance as security for child support until the children reach the age of
twenty-four; and (6) awarding Wife attorney's fees. We affirm as modified.

FACTS
Husband and Wife married in Columbus, Ohio on October 26, 2003. Wife had a
degree in Music-Vocal Performance, worked in jewelry sales, and sang part-time
with the Toledo Opera. Husband graduated from medical school in June 2003 and
began a three year internal medicine residency program at the Cleveland Clinic in
Cleveland, Ohio. After the parties were married, Wife moved to Cleveland. The
parties moved to Iowa City, Iowa during the summer of 2007 where Husband
completed a three year fellowship program in Cardiology followed by a one year
Electrophysiology fellowship at the University of Iowa. During the early years of
the parties' marriage, Wife worked in jewelry sales; however, after the birth of the
parties' first child in 2008, Wife did not remain employed outside the home. The
parties' second child was born in 2010. Husband was then hired by South Carolina
Heart Center to work as an Electrophysiologist beginning July 2011.

Upon moving to South Carolina, the parties purchased a home in Elgin. On June
17, 2012, Wife discovered emails exchanged between Husband and his paramour
from March to May of 2012 which included a video of her wearing a bikini and
several references to emotional and physical intimacy. On October 6, 2012,
Husband moved out of the marital home. Thereafter, Wife hired an investigation
service and obtained evidence that Husband spent many nights with his paramour
between October 12 and 28, 2012.

Wife commenced this action by summons and complaint filed on December 4,
2012. During the pendency of the action, the family court awarded Wife
temporary custody, temporary exclusive use of the marital home and automobile,
and temporary unallocated support and other expenses, including mortgage and
health insurance for Wife and the children. After Wife filed a motion for
supplemental temporary relief, the family court increased the temporary
unallocated support awarded to Wife based on Husband's misrepresentation of his
income at a previous hearing. On April 8, 2014, the family court filed an order
granting the divorce and approving the parties' agreement as to equitable division
of personal property and automobiles, the children's health insurance, and custody
and visitation schedule. The family court reserved jurisdiction to hear and
determine the remaining outstanding issues.
At trial, Wife explained she could not resume a career in opera because of the
unpredictable schedule and her lack of vocal training since the marriage. Wife
believed she could not go back to full-time jewelry sales because the inflexible
hours would prevent her from taking care of the children after school. Wife
testified she was capable of earning a salary of approximately $20,000; however,
those earnings would be negated by any daycare or after-school care expenses.
She believed it was important she receive training or education in order to obtain a
higher paying job. Wife testified Husband failed to pay the mortgage as ordered
by the family court, resulting in foreclosure on the house.

After Wife's testimony, Husband's counsel informed the family court that Husband
would be his only witness; however, Husband was absent the morning he was
scheduled to testify. Husband's counsel attempted to enter Husband's deposition
into evidence in lieu of his in-court testimony, arguing Rule 32(a), SCRCP,
allowed a party's deposition to be used for any purpose, even in his voluntary
absence. The family court denied the request, stated it was willing to wait for
Husband, and expressed its concern that Husband would not be heard on the issues.
The family court expressed its irritation and admitted to raising its voice after
Husband's counsel continued to argue the deposition should be entered into
evidence in lieu of Husband's in-court testimony.

Husband's counsel moved for a mistrial based on the family court's irritation
regarding his position as to Rule 32(a). Husband's counsel argued the family court
could not decide the case because it believed Husband and his counsel had been
disrespectful. The family court explained its irritation by stating it was surprised to
find out so late that Husband would not be testifying because the parties requested
a three day trial, the case was pending for two and a half years, and Husband was
scheduled to testify. After repeating its ruling that it would not allow Husband's
deposition into evidence in lieu of his testimony, the family court denied Husband's
motion for mistrial.

During in-court testimony, Husband testified that when the parties moved to
Columbia they each had significant credit card debt and they were living
"paycheck to paycheck"; however, they purchased a home that was approximately
5,000 square feet and six bedrooms. He explained that after two years at South
Carolina Heart Center, he decided to leave because of the financial condition of the
practice and hospital. Husband explained he ultimately took a position in
Savannah, Georgia, where his base salary was $400,000, because he was subject to
a non-compete clause pursuant to his employment with South Carolina Heart
Center.
In its final order, the family court made extensive findings of fact. It found all
assets not dealt with in the parties' agreement were marital and ordered the assets
to be divided on a 50/50 basis. As to the marital debts, the family court ordered
Wife was solely responsible for two of the four credit card debts, totaling
$11,971.90, and Husband was responsible for the remaining two credit card debts,
totaling $18,128.29. The family court awarded Wife $7,000 per month in alimony,
a maximum of $25,000 in moving expenses, and $5,000 in personal expenses. It
ordered Husband pay $3,690 each month in child support in addition to insurance
coverage and medical expenses. The family court ordered Husband maintain life
insurance in the amount of $1,000,000 as security for child support until the
children reach the age of twenty-four. The family court ordered Husband pay
$83,000 to Wife for attorney's fees, costs, and expenses. This appeal followed.

STANDARD OF REVIEW
"In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011).
"[W]hile this court has the authority to find facts in accordance with its own view
of the preponderance of the evidence, 'we recognize the superior position of the
family court . . . in making credibility determinations.'" Lewis v. Lewis, 400 S.C.
354, 361, 734 S.E.2d 322, 325 (Ct. App. 2012) (quoting Lewis v. Lewis, 392 S.C.
381, 392, 709 S.E.2d 650, 655 (2011)). "Further, de novo review does not relieve
an appellant of his burden to 'demonstrate error in the family court's findings of
fact.'" Id. (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at 655). "Consequently, the
family court's factual findings will be affirmed unless [the] appellant satisfies this
court that the preponderance of the evidence is against the finding of the [family]
court." Id. (quoting Lewis, 392 S.C. at 392, 709 S.E.2d at 655) (alteration in
original).

LAW/ANALYSIS

I. MOTION FOR MISTRIAL
Husband argues the family court erred in denying his motion for a mistrial because
the family court was biased against Husband. He argues all of the family court's
findings of fact and conclusions of law were tainted by the family court's bias and
prejudice against Husband. We disagree.

"[The] family court . . . should . . . grant a new trial if judicial misconduct affected
the proceedings below." Blejski v. Blejski, 325 S.C. 491, 498, 480 S.E.2d 462, 466
(Ct. App. 1997).
The family court did not err by denying Husband's motion for a mistrial because
the evidence shows the family court was not biased against Husband. The family
court's irritation was justified because counsel misrepresented Husband's intention
to testify and counsel continued to argue he was entitled to introduce the deposition
in lieu of Husband's testimony after the family court stated its ruling several times.
After Husband's counsel moved for a mistrial, the family court stated it would rule
fairly and would never make a case punitive. Further, the family court expressed
concern that Husband's issues would not be heard and attempted to make any
necessary accommodations in order to hear Husband's testimony. Husband did not
prove he was prejudiced by the family court's irritation because all of the family
court's rulings were supported by the evidence in the record. We find no error.

II. TRANSPORTATION

Husband argues the family court erred in failing to address the issue of
transportation of the parties' children for Husband's visitation. We disagree.

In its final order, the family court expressly denied Husband's request that Wife be
required to help pay for transportation. The ruling is supported by evidence in the
record that Husband voluntarily moved to Georgia, he continuously failed to
exercise visitation rights, and Wife was not in a stable position to commit to a
particular transportation schedule but was willing to negotiate. We find no error.
Lewis, 400 S.C. at 361, 734 S.E.2d at 325 ("[T]he family court's factual findings
will be affirmed unless [the] appellant satisfies this court that the preponderance of
the evidence is against the finding of the [family] court." (quoting Lewis, 392 S.C.
at 392, 709 S.E.2d at 655)).

III. EQUITABLE DISTRIBUTION
Husband argues the family court erred in its equitable distribution of the marital
estate. Husband does not argue the family court erred by holding the assets in
dispute were marital. However, he argues the family court erred by: (1) failing to
make specific findings with respect to the statutory factors; (2) including
Husband's net bonus in the marital estate when the bonus was spent to pay marital
debt; and (3) failing to give him a credit for $10,000 he paid as an advancement
toward Wife's attorney's fees.

"The doctrine of equitable distribution is based on a recognition that marriage is,
among other things, an economic partnership." Johnson v. Johnson, 296 S.C. 289,
293, 372 S.E.2d 107, 109 (Ct. App. 1988). "On appeal, we must review the
fairness of the overall apportionment, and if equitable, we will uphold it regardless
of whether we would have weighed specific factors differently." Wilburn v.
Wilburn, 403 S.C. 372, 390, 743 S.E.2d 734, 744 (2013).

Moreover, consistent with our constitutional authority for
de novo review, an appellant is not relieved of his burden
to demonstrate error in the family court's findings of fact.
Consequently, the family court's factual findings will be
affirmed unless [the] 'appellant satisfies this court that the
preponderance of the evidence is against the finding of
the [family] court.'

Lewis, 392 S.C. at 392, 709 S.E.2d at 655 (quoting Finley v. Cartwright, 55 S.C.
198, 202, 33 S.E.2d 359, 360-61 (1899)).

In making an equitable apportionment of the marital estate, the family court must
weigh the following fifteen factors "in such proportion as it finds appropriate":

(1) the duration of the marriage together with the ages of
the parties at the time of the marriage and at the time of
the divorce . . . ; (2) marital misconduct or fault of either
or both parties . . . ; (3) the value of the marital
property . . . . The contribution of each spouse to the
acquisition, preservation, depreciation, or appreciation in
value of the marital property, including the contribution
of the spouse as homemaker . . . ; (4) the income of each
spouse, the earning potential of each spouse . . . ; (5) the
health . . . of each spouse; (6) the need . . . for additional
training or education . . . ; (7) the nonmarital property of
each spouse; (8) the . . . vested retirement benefits for
each or either spouse; (9) whether separate maintenance
or alimony has been awarded; (10) the desirability of
awarding the family home as part of equitable
distribution or the right to live therein for reasonable
periods to the spouse having custody of any children;
(11) the tax consequences . . . ; (12) the existence and
extent of any support obligations, from a prior marriage
or for any other reason or reasons, of either party; (13)
liens and any other encumbrances upon the marital
property, . . . and any other existing debts incurred . . .
during the course of the marriage; (14) child custody . . . ;
and (15) such other relevant factors as the [family] court
shall expressly enumerate in its order.

S.C. Code Ann. § 20-3-620(B) (2014).

First, the family court's overall apportionment of the parties' marital assets and
debts is equitable, and it weighed the statutory factors accordingly. It determined
that while Husband made significantly greater financial contributions, Wife made
significantly greater contributions to the marriage and children. The family court
also determined that because Husband unilaterally avoided payment of the parties'
mortgage, resulting in mortgage indebtedness of $60,000 and foreclosure, Husband
should be responsible for all marital debts and liabilities. The family court put
significant emphasis on Husband's high earning capacity, finding Husband was
capable of paying debts while still maintaining a high standard of living and Wife
had little capacity to earn significant income while having custody of the children.
Accordingly, the family court properly considered and gave appropriate weight to
the statutory factors, and the overall apportionment is equitable.

Second, while Husband argues his bonus should not have been included in the
equitable division of the marital assets, he did not present any evidence to prove
the bonus was spent on marital debt. The parties stipulated to the description and
dollar amount of the bonus for the family court to determine whether it was marital
property; however, Husband never indicated the money was no longer available.
Therefore, the court did not err by ruling the bonus was marital property subject to
division.

Finally, the family court ruled Husband was not entitled to a credit for any debts
previously paid because he avoided payment of the mortgage, as ordered by the
court, resulting in foreclosure on the marital home. Further, the family court ruled
the $10,000 was an advancement against equitable apportionment. The family
court found Husband was capable of paying all marital debts and liabilities because
of his elevated income. We find the family court did not err in excluding the
$10,000 Husband paid for Wife's attorney's fees during the pendency of the
litigation from its equitable distribution.

IV. ALIMONY

Husband argues the family court erred by awarding Wife $7,000 per month in
permanent periodic alimony because the family court's findings regarding the
statutory factors were erroneous and the award was punitive. Husband argues the
family court erred by ordering Husband pay all expenses for Wife's leased vehicle,
a maximum of $25,000 for moving expenses, and $5,000 for additional personal
expenses because the awards were not supported by any evidence on the record
and were punitive. We disagree.

"Alimony is a substitute for the support normally incidental to the marital
relationship." Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423
(2014). "Generally, alimony should place the supported spouse, as nearly as is
practical, in the same position he or she enjoyed during the marriage." Id. (quoting
Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001)).

Section 20-3-130(C) of the South Carolina Code (2014) provides the family court
"must consider and give weight in such proportion as it finds appropriate" to the
following factors when making an award of alimony:

(1) the duration of the marriage together with the ages of
the parties at the time of the marriage and at the time of
the divorce . . . ; (2) the physical and emotional condition
of each spouse; (3) the educational background of each
spouse, together with need of each spouse for additional
training or education in order to achieve that spouse's
income potential; (4) the employment history and earning
potential of each spouse; (5) the standard of living
established during the marriage; (6) the current and
reasonably anticipated earnings of both spouses; (7) the
current and reasonably anticipated expenses and needs of
both spouses; (8) the marital and nonmarital properties of
the parties . . . ; (9) custody of the children, particularly
where conditions or circumstances render it appropriate
that the custodian not be required to seek employment
outside the home, or where the employment must be of a
limited nature; (10) marital misconduct or fault of either
or both parties, whether or not used as a basis for a
divorce or separate maintenance decree if the misconduct
affects or has affected the economic circumstances of the
parties, or contributed to the breakup of the
marriage . . . ; (11) the tax consequences to each party as
a result of the particular form of support awarded; (12)
the existence and extent of any support obligation from a
prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
"Three important factors in awarding periodic alimony are (1) the duration of the
marriage; (2) the overall financial situation of the parties, especially the ability of
the supporting spouse to pay; and (3) whether either spouse was more at fault than
the other." Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004).

First, the family court's award of $7,000 per month in periodic alimony is
supported by evidence in the record, and there is no evidence in the record to prove
the award is punitive. Husband's income was $400,000 plus an unspecified
year-end bonus. Wife's earning potential was found to be between $15,000 and
$20,000; however, the court determined the benefit of this income would be off-set
by the costs of daycare and after-school care. Moreover, $7,000 is less than one
quarter of Husband's monthly income of $33,000, disregarding the potential for a
year-end bonus. The family court put great emphasis on the elevated standard of
living the parties experienced during the marriage and Wife's emotional and
financial support of Husband while he advanced his career. The family court also
emphasized Husband's lack of contact with the children and his adultery, which
directly and irreparably affected the economic circumstances of Wife and her
ability to provide for the children. Considering the high standard of living the
parties experienced at the time of the demise of the marriage and the vast disparity
between Husband's income and Wife's potential earning capacity, the award of
$7,000 in periodic alimony is supported by the evidence in the record and is not
punitive. We find no error.

Second, the family court's order that Husband pay all costs for Wife's leased
vehicle and expenses associated with Wife and the children's relocation from the
former marital residence up to a maximum of $25,000 and $5,000 for personal
needs and expenses associated with traveling, upon Wife's request, is supported by
the evidence in the record. Husband's failure to pay the mortgage on the former
marital home, as ordered by the family court, and the resulting foreclosure is the
sole reason Wife is required to relocate herself and the children. Further, Wife has
no income or savings to maintain her vehicle to provide safe transportation for the
children or to pay a down payment or security deposit to secure a home. Wife
testified if she pursued a job which required working nights and weekends, it
would be necessary to move in with her mother in California to accommodate child
care. Therefore, the court's order requiring Husband to pay moving and vehicle
expenses is reasonable. We find no error.

V. CHILD SUPPORT AND LIFE INSURANCE
Husband argues the family court erred by ordering Husband pay $3,690 per month
in child support for the parties' two children in addition to insurance and medical
expenses because the award was the product of bias and prejudice against
Husband. We disagree.

Further, Husband argues the family court erred by ordering he maintain life
insurance as security for child support until the children reach the age of
twenty-four. We agree.

The Child Support Guidelines "provide for calculated amounts of child support for
a combined parental gross income of up to $30,000 per month, or $360,000 per
year. Where the combined gross income is higher, courts should determine child
support awards on a case-by-case basis." S.C. Code Ann. Regs. 114-4710(A)(3)
(Supp. 2017).

"The family court may order the payor spouse to obtain life insurance as security
for an alimony or child support obligation if the supported spouse can demonstrate
the existence of special circumstances with reference to her need for the security
and the payor spouse's ability to provide it." Smith v. Smith, 386 S.C. 251, 264,
687 S.E.2d 720, 727 (Ct. App. 2009).

[O]rders for child support run until the child turns
eighteen years of age or until the child is married or
becomes self-supporting, as determined by the court,
whichever occurs first, or past the age of eighteen years if
the child is enrolled and still attending high school, not to
exceed high school graduation or the end of the school
year after the child reaches nineteen years of age,
whichever is later; or in accordance with a preexisting
agreement or order to provide for child support past the
age of eighteen years; or in the discretion of the court, to
provide for child support past age eighteen when there
are physical or mental disabilities of the child or other
exceptional circumstances that warrant the continuation
of child support beyond age eighteen for as long as the
physical or mental disabilities or exceptional
circumstances continue.

S.C. Code Ann. § 63-3-530(A)(17) (2010 & Supp. 2017).

We find the family court did not err by awarding $3,690 per month in child
support. The child support guidelines provide for specified child support amounts
based on a combined gross income of up to $360,000 per year. However,
Husband's base income is $400,000 in addition to an undetermined year-end bonus.
Therefore, pursuant to regulation 114-4710(A)(3), the family court determined
child support "on a case-by-case basis." Based on the evidence in the record
regarding Husband's high income and Wife's low earning potential, the award of
$3,690 for the parties' two children is reasonable. No evidence in the record
supports Husband's argument that this award is punitive. We find no error.

However, we find the family court erred by ordering Husband maintain life
insurance as security for child support until the children reach the age of
twenty-four because Husband's child support obligation terminates once the
children reach the age of eighteen, or nineteen pursuant to section
63-3-530(A)(17). There is no evidence in the record to show that child support
should continue to the age of twenty-four. Further, the court made no findings that
exceptional circumstances exist to warrant continuation of child support. The
purpose of ordering the payor spouse maintain life insurance as security for an
award of support is to ensure payment past the payor spouse's death. See Gilfillin
v. Gilfillin, 344 S.C. 407, 414, 544 S.E.2d 829, 832 (2001) (finding the only
method to secure payment of support beyond the life of the payor spouse is life
insurance). However, child support which does not extend past the age of eighteen
or nineteen does not require a method to secure payment once the children reach
the age of majority. We find the family court erred and the order of the family
court is modified to require Husband maintain life insurance until the children
reach the age of eighteen, or nineteen pursuant to section 63-3-530(A)(17).

VI. ATTORNEY'S FEES
Husband argues the court erred by awarding Wife attorney's fees in the amount of
$83,000 because the award was punitive and based on the family court's bias and
prejudice against Husband. We disagree.

Pursuant to section 20-3-130(H) of the South Carolina Code (2014), the family
court has the authority to award attorney's fees in divorce actions. "In determining
whether . . . attorney's fee[s] should be awarded, the following factors should be
considered: (1) the party's ability to pay his[ or ]her own attorney's fee[s]; (2)
beneficial results obtained by the attorney; (3) the parties' respective financial
conditions; (4) [the] effect of the attorney's fee[s] on each party's standard of
living." E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). If
the court determines attorney's fees and costs are appropriate, it should consider the
following factors when determining the amount to award: "(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." Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).

The family court did not err by ordering Husband pay $83,000 in Wife's attorney's
fees, and there is no evidence to show the award was punitive in nature. The
family court properly considered the appropriate factors in deciding to award
attorney's fees. It found Wife was not able to pay her attorney's fees while
Husband was in a "superior financial position" and was capable of paying the
attorney's fees. Wife obtained a beneficial result in that the assets in dispute were
deemed "marital" subject to equitable distribution and she was awarded alimony.
While Husband has very stable and superior financial conditions, Wife lives in a
foreclosed home without the ability to pay for housing, has no income, and
maintains a home for the parties' two children. As to the effect of the attorney's
fees on each party's standard of living, while Husband is capable of paying the
attorney's fees because of his high income, it would be extremely difficult for Wife
to pay the attorney's fees due to her lack of income and her need to provide for the
parties' children. Further, the family court properly considered all factors in
determining the amount of fees and costs to award. The family court found the
case was extremely difficult as a result of the lengthy period of time the case was
pending, the attempts to settle financial issues, and the discovery issues regarding
Husband's misrepresentations of his income and adultery. The family court found
Wife was not able to afford even a portion of the attorney's fees because she has
been required to rely on her award of alimony and child support to provide for
herself and the children. Further, the family court found the equitable
apportionment of the marital property would not result in significant assets for
Wife. Therefore the award of attorney's fees was appropriate. We find no error.

CONCLUSION
Accordingly, the decision of the trial court is

AFFIRMED AS MODIFIED.

SHORT, THOMAS, and HILL, JJ., concur.