Goldman v. Goldman

`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

Mitchell D. Goldman, Appellant,

v.

Jane Goldman, Respondent.

Appellate Case No. 2018-000958

Appeal From Dorchester County
Anne Gue Jones, Family Court Judge

Unpublished Opinion No. 2021-UP-014
Submitted December 1, 2020 – Filed January 20, 2021

AFFIRMED

Kenneth Eldon Peck, of The Peck Law Firm, L.L.C., of
Mount Pleasant, for Appellant.

Sabrina R. Grogan, of Sabrina R. Grogan, Attorney at
Law, of Mt. Pleasant, and Kevin Roger Eberle, of
Charleston, both for Respondent.

PER CURIAM: Mitchell Goldman (Husband) appeals the family court's final
order, reducing his alimony payment to Jane Goldman (Wife) from $4,750 to $1,500
per month and ordering him to pay Wife attorney's fees and expert witness fees. On
appeal, Husband argues the family court erred in (1) awarding Wife attorney's fees
and expert fees because she did not receive a beneficial result and is in a better
financial position than Husband; (2) not awarding him attorney's fees when he
received a more favorable result than Wife; (3) not making the alimony reduction
retroactive; and (4) only reducing Husband's alimony payment to $1,500 per month
instead of terminating it or further reducing it based on the decrease in his income
and the increase of Wife's income. We affirm.

I. FACTS
The parties divorced in 2004 after twenty-seven years of marriage. Husband enjoyed
a long career as a medical doctor, while Wife was a homemaker and stay-at-home
mother. Pursuant to the parties' court-approved agreement, Husband agreed to pay
Wife $5,500 in monthly, permanent periodic alimony. Wife reentered the workforce
at the age of fifty-four shortly before the parties' divorce. Since 2005, she has
worked for the South Carolina Department of Juvenile Justice as a social worker. In
2007, Husband filed an action to reduce or terminate his monthly alimony payment,
and in 2009, pursuant to an agreement reached by the parties, the family court issued
a final order reducing Husband's alimony payment to $4,750 per month but
providing Husband could not seek to modify this alimony obligation until he turned
sixty-six. At the time of the alimony adjustment, Wife made $36,348 per year, and
Husband made at least $350,000 per year.

On December 28, 2016, anticipating his retirement and months before his sixty-sixth
birthday, Husband filed this action requesting to terminate or reduce his alimony
obligation. Wife answered, asking the court to dismiss Husband's complaint and to
award her attorney's fees and costs. However, Wife stipulated that Husband had
reached retirement age and his retirement was appropriate. The parties were unable
to reach a settlement and proceeded to trial. The evidence showed (1) Husband
worked until his retirement in September 2017, making at least $350,000 per year
since 2009 and $456,043 in 2015; (2) at the time of trial, Wife still worked as a social
worker, earning $42,285 per year; (3) due to Husband's retirement, he only had
$3,587.40 in gross monthly income from retirement, social security, dividends, and
rental income, and he had monthly expenses of $6,552.39, not including his alimony
obligation but including over $2,000 in life insurance premiums on policies held for
his current wife's benefit; (4) Wife's gross monthly income was $4,853.82 from her
employment, social security, and dividends, and Wife had monthly expenses of
$4,217.51; (5) Husband had over $375,000 in retirement and investment accounts,
he used $172,000 he received for the sale of his portion of a medical practice to pay
off the mortgage on his home and the rental home he owns, and he had ownership
interests in three pieces of real property valued at $519,000; and (6) Wife had
$212,000 in a retirement account, she contributed $2,000 a month to her retirement
account based on a financial planner's advice, and she still had mortgage, car, and
other unsecured debt payments. Husband testified he never intended to pay Wife
alimony forever, he "always meant that it would go away after [he] retired," and he
believed the fair thing would be to terminate his alimony obligation.

The family court found Husband's retirement was "a substantial change in
circumstances warranting a reduction in his alimony obligation" but did not warrant
ending his alimony obligation. The family court therefore decreased Husband's
alimony obligation to $1,500 per month. The family court further found Wife could
not pay her attorney's fees without dipping into her retirement funds; Husband was
in a better financial position than Wife; and Wife received beneficial results because
although Husband received a reduction in his alimony obligation, he sought a
complete termination of alimony. Thus, the family court found Wife was entitled to
attorney's fees and costs, but "since both parties have received some beneficial
results, [Wife was] not entitled to have all of her attorney's fees paid by [Husband]."
The family court ordered Husband to pay Wife's attorney's fees in the amount of
$25,000—out of a total $33,854.04 in attorney's fees she incurred—and $4,000 in
expert fees, for a total of $29,000. This appeal follows.

II. STANDARD OF REVIEW
Generally, on appeal from the family court, this court reviews factual and legal issues
de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011);
Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court
reviews the family court's findings de novo, we are not required to ignore the fact
that the family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 385–86, 709 S.E.2d at 651–52. Additionally, appellate courts review the
"family court's evidentiary or procedural rulings . . . using an abuse of discretion
standard." Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018).

III. ATTORNEY'S FEES
Husband argues the family court erred in awarding Wife attorney's and expert
witness fees and not awarding him attorney's fees because (1) due to his retirement,
Wife's income exceeds his, and she has substantial retirement savings; (2) he
received the beneficial result in the case because his alimony obligation was
significantly reduced, and Wife did not receive the relief she requested, namely the
dismissal of his claims; (3) Wife "is in an equal or superior financial position" to
Husband as she "has disposable income each month," while he runs a deficit, and
the assets attributed to him are shared jointly with his new wife; and (4) Wife's
standard of living would not be impacted by paying her own fees and costs because
she has disposable monthly income and has accumulated a "windfall created by the
alimony payment[s]" since the entry of the family court order. We disagree.

The family court did not err in awarding Wife attorney's and expert witness fees and
not awarding such fees to Husband. See Couch v. Couch, 431 S.C. 170, 180, 847
S.E.2d 260, 265 (Ct. App. 2020) (providing to determine whether an attorney's fee
should be awarded, the family court should consider: "(1) the party's ability to pay
his/her own attorney's fee; (2) beneficial results obtained by the attorney; (3) the
parties' respective financial conditions; (4) effect of the attorney's fee on each party's
standard of living." (quoting E.D.M. v. T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d
812, 816 (1992))). First, the evidence shows Wife does not have an ability to pay
her own attorney's fees as (1) her total attorney's fees of $33,854.04 amounts to over
three-fourths of her yearly salary of $42,285; (2) she testified paying her attorney's
fees would be an "incredible hardship"; and (3) she already has over $130,000 in
debt, including a mortgage on her home. Husband, on the other hand, is better able
to pay his own attorney's fees as he only has a minor debt of $1,200 to Home Depot;
he has more money in retirement and investment accounts than Wife—$375,000
compared to $212,000; he does not have a mortgage on his home or rental home; he
can bring in money by renting out his rental home at market rates; and he has
interests in other property. See McMurtrey v. McMurtrey, 272 S.C. 118, 121, 249
S.E.2d 503, 505 (1978) ("There is no limitation that alimony payments be made
solely from current earnings."). Husband testified he would have to start depleting
his retirement account to pay alimony to Wife. That may be true, but based on his
real estate holdings and retirement and investment accounts, he is still better able to
pay attorney's fees than Wife. Thus, as to the parties' ability to pay attorney's fees,
we find this factor weighs in Wife's favor.

Second, as to who received the beneficial outcome in this case, we note in his
complaint, Husband asked for his alimony obligation to be terminated or reduced,
and his alimony obligation was greatly reduced from $4,750 to $1,500. In this sense,
Husband received a beneficial result. However, we acknowledge Husband offered
Wife several, less lucrative settlement offers than the result reached by the family
court; Wife made a settlement offer to Husband that included Husband paying her
$1,500 per month in alimony, the amount ultimately ordered by the court1; and

1
We acknowledge, however, that Wife's offer also provided Husband could not later
seek to modify this alimony amount and that he would procure a life insurance policy
in Wife's benefit, and the family court's order did not include these provisions.
Husband testified he never planned to pay Wife alimony after he retired, and he
thought paying Wife nothing would be the fair amount of alimony. Thus, Wife
received a beneficial outcome because Husband's alimony obligation was not fully
terminated, and the amount of his modified alimony obligation is what she offered
him in a settlement offer. Furthermore, we note Husband, not Wife, appealed the
family's court's alimony order, asking this court to terminate or further reduce his
alimony obligation. See Taylor v. Taylor, 333 S.C. 209, 218, 508 S.E.2d 50, 55 (Ct.
App. 1998) (finding it "questionable" whether Husband succeeded in an action to
terminate or, in the alternative reduce, his alimony obligation where Husband's
alimony was reduced but not terminated and he appealed from that judgement).
Therefore, although Husband may have succeeded in some sense, we find this factor
weighs in Wife's favor.

Third, as noted above, Husband appears to be in a better financial situation than Wife
as he (1) unlike Wife, has no mortgage payment, (2) has substantially more money
in retirement and investment accounts than Wife, and (3) has no major debt.
Although we acknowledge Wife is still working and brings in more income than
Husband now that he has retired, this is not determinative of whether Wife should
receive attorney's fees and costs or not. See Fitzwater v. Fitzwater, 396 S.C. 361,
372, 721 S.E.2d 7, 13 (Ct. App. 2011) (finding the family court did not err in
awarding husband attorney's fees and costs even though husband's income was
higher than wife's). Moreover, Husband still has a gross monthly income of $3,587
and a net monthly income of $3,159.20 compared to Wife's gross monthly income
of $4,853.52 and net monthly income of $1,675.85.2 Fourth, in accordance with the
parties' ability to pay their attorney's fees and respective financial conditions, we
find the attorney's fees award will not substantially affect Husband's standard of
living, but saddling Wife with her attorney's and expert fees would substantially
affect her standard of living, which has already decreased since the parties' divorce,
as we further discuss below in section V. Thus, we find these factors weigh in Wife's
favor. Accordingly, we find the family court did not err in awarding Wife attorney's
fees and costs, and we affirm as to this issue.

IV. RETROACTIVE REDUCTION IN ALIMONY

2
Wife's net monthly income is so low because she contributes $2,000 to her
voluntary retirement fund per month. However, if Wife did not make this
contribution, her net monthly income would be $3,675.85, about $500 more than
Husband's net income.
Husband argues the family court erred in failing to make its reduction of his alimony
obligation retroactive to the date he filed this action. We disagree.

We find the family court did not abuse its discretion in failing to reimburse Husband
for the alimony payments he made since he filed the action to modify his alimony
obligation. First, the general rule is that a modified alimony obligation begins on
the date the final order is signed and is not retroactive. See Nienow v. Nienow, 245
S.C. 542, 545, 141 S.E.2d 648, 650 (1965) (providing the court can exercise
discretion in determining when temporary alimony will start but "[s]uch alimony
generally commences as of the date the [o]rder is signed"). Moreover, no special
exception applies here to support deviating from the general rule as Wife (1) did not
delay the proceedings but instead offered Husband several settlement offers to end
the case earlier, and (2) did not agree Husband was entitled to reimbursement if his
arguments prevailed at trial. See Hopkins v. Hopkins, 343 S.C. 301, 305–06, 540
S.E.2d 454, 456–57 (2000) (finding husband was entitled to reimbursement of
overpayments of child support because at the temporary hearing, husband sought to
terminate child support payments, but wife asked the court to continue payments
with understanding that if former husband's position was correct then the issue of
support would be established and adjusted); Engle v. Engle, 343 S.C. 444, 453, 539
S.E.2d 712, 716 (Ct. App. 2000) (finding the family court did not abuse its discretion
in failing to award mother retroactive child support where the family court found
father did not intentionally delay the proceedings and mother did delay the
proceedings).

Second, the 2009 order provided Husband could not seek to modify his alimony
obligation until he reached the age of sixty-six; however, Husband filed this action
to reduce or terminate his alimony obligation months before he reached the age of
sixty-six. Because Husband filed this action before his sixty-sixth birthday, it would
be inequitable to make the reduction retroactive. See Roof v. Steele, 396 S.C. 373,
382, 720 S.E.2d 910, 915 (Ct. App. 2011) ("An agreement creating a spousal support
obligation is modifiable by the family court unless (1) the parties have expressly
designated their agreement as 'non-modifiable,' and (2) the family court has
approved this limitation."); S.C. Code Ann. § 20-3-130(G) (2014). Accordingly, the
family court did not err in failing to order retroactive alimony to Husband, and we
affirm as to this issue.

V. FURTHER REDUCTION OR TERMINATION OF ALIMONY
Finally, Husband argues the family court erred in only reducing his alimony
obligation to $1,500 per month instead of terminating it altogether or further
reducing it based on his retirement and "decreased financial ability." We disagree.

The family court did not err declining to further reduce or terminate Husband's
alimony obligation. The parties 2009 agreement, which specified Husband could
seek to modify his alimony obligation once he reached sixty-six—retirement age—
shows the parties' intent that Husband's retirement would be a substantial change in
circumstances warranting review and perhaps modification of Husband's alimony
obligation. See Smith v. Smith, 359 S.C. 393, 397, 597 S.E.2d 188, 189–90 (Ct. App.
2004) (noting parties agreed husband's retirement would constitute a change in
circumstances, and the court would review the parties' financial condition and
husband's alimony obligation if husband retired).

Nonetheless, reducing Husband's alimony obligation to $1,500 per month is
necessary to maintain Wife's standard of living, which has already declined since the
divorce. See Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct. App.
2004) ("Several considerations relevant to the initial determination of alimony may
be applied in the modification context as well, including the parties' standard of
living during the marriage . . . ."). In particular, we note (1) Wife reentered the
workforce at the age of fifty-four in anticipation of the parties' divorce and continued
to work at the age of sixty-eight (at the time of the trial) because she cannot afford
to retire; (2) since the parties' divorce, Wife has downsized from the parties' marital
home to a condo; (3) Husband has only a minor $1,200 debt to Home Depot, while
Wife has debts of over $131,000 for her mortgage, car payment, and several other
personal debts; (4) Wife only began saving for retirement after the parties' divorce
because she was a stay-at-home mother during the parties' marriage and planned on
depending on Husband's retirement3; (5) Wife may not be able to retire if she does
not continue to receive at least some support from Husband that would allow her to
continue to put money into her retirement account; and (6) Wife has difficulty
affording to take vacations to see her son in Chicago and cannot afford other
vacations. It does not appear Husband has experienced any decrease in his standard
of living up until his recent retirement. He continued to make over $350,000 per
year, he has no major debts, and he paid off his mortgage on his home and the rental

3
Husband contends Wife is in a better position now than she was during the marriage
because she is now saving for retirement. This specious argument overlooks that
Wife's standard of living during the marriage included plans to rely on Husband's
income and retirement accounts to support her during their retirement years. Now,
she must rely on alimony to save for her retirement.
property he owns. Furthermore, Husband can afford to pay the reduced alimony
obligation given that he (1) does still have over $3,000 of income per month; (2) he
has retirement and investments accounts worth over $375,000; (3) he currently pays
$2,117.64—more than the reduced alimony obligation—to have two life insurance
policies for his current wife's benefit; and (4) he has rental property that he currently
chooses to rent to his family. See id. ("Several considerations relevant to the initial
determination of alimony may be applied in the modification context as well,
including . . . the supporting spouse's ability to continue to support the other
spouse."). Accordingly, we affirm as to this issue.

AFFIRMED.4

THOMAS, HILL, and HEWITT, J.J., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.